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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Congresswoman Sheila Jackson Lee
Committee on the Judiciary
USA PATRIOT Act
June 10, 2005 2141 RHOB, 8:30 a.m.
Judge Learned Hand is cited to have stated that "The spirit
of liberty is the spirit which is not too sure that it is right. ..."
Mr. Chairman and Mr. Ranking Member, as you well
know, the legislation that we discuss today, the "Uniting and
Required to Intercept and Obstruct Terrorism” Act, or the “USA
PATRIOT Act” expanded law enforcement powers in the
aftermath of Sept. 11.
Sixteen (16) provisions that are due to
sunset at the end of 2005 are set for reauthorization. These
provisions include Section 213 that allows delayed notification
search warrants, Section 209's emergency disclosure of e-mails
without a court order, and the provision that allows access to
I commend the Chairman for his disposition to hold the 10
oversight hearings that have been held on these controversial
provisions. However, if my colleagues on this side of the
hearing room were to file an action based on the common law
principle of forum non conveniens, we would likely be justified
based on the fact that this hearing has been called for 8:30 a.m.
on the day following the end of votes for the week! Nevertheless, we applaud this de minimis effort to appeal to the
requests for hearings that have been made by the distinguished
Ranking Member of this body.
By way of background, I remind this body that PATRIOT
was passed into law a mere six weeks following the terrorist
attacks on September 11, 2001. The process of drafting this bill
until its signing into law by President Bush took only four days
from October 23 to October 26, 2001. The final measure, H.R.
3162, incorporated provisions of H.R. 2977, which the House
passed on October 12, 2001, and S. 1510, which the other body
passed on October 11, 2001.' While Congress grappled with the
need to act expeditiously to fight terrorism, I still marvel that a
bill more than three hundred pages long moved from
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Department of Justice and Library Association Over the USA PATRIOT Act.* 97 LLids 7 (Winter, 2005).
introduction to enactment at such a daunting speed. The process
of reauthorization seems to resemble this path.
As a law review note entitled “Playing PATRIOT Games:
National Security Challenges Civil Liberties" in the Houston
Law Review, the late Supreme Court Justice William J. Brennan
once said that “several factors lead to infringement of civil rights
during a time of crisis. First, the crisis creates a "national
fervor," which in turn leads to an exaggeration of the 'security
enforcement to skirt the line of reasonableness. For example,
section 206 of the Patriot Act "amends FISA and eases restrictions involving domestic intelligence gathering by
allow[ing] a single wiretap to legally 'roam' from device to
device, to tap the person rather than the phone."
Also, the Act allows federal law enforcement to delay
notifying subjects of sneak-and-peek searches, as long as notice
is provided within a "reasonable" time. A sneak-and-peek search
is one in which a law enforcement official searches the premises
of a subject but delays the notification required by the Fourth
Amendment until a later time. This type of delay is allowed
when notification of the subject might have an "adverse result.""
The "reasonable" time may be extended for "good cause." These
expanded surveillance powers are especially troubling because
of their apparent contravention of the Fourth Amendment's
protection against unreasonable searches and seizures.
3. "Domestic Terrorism" Broadly Defined. "Domestic terrorism"