|Cloture Motion on PATRIOT Act Extension Bill
Defeated in Senate
12/17. The Senate rejected a motion to invoke cloture on the conference report on
the "USA PATRIOT Improvement and Reauthorization Act of 2005", by a vote of
52-47, on Friday, December 16, 2005.
Invoking cloture is the only method for terminating a filibuster. Pursuant to
Senate Rule XXII, a cloture motion requires a three fifths majority for passage.
See, Senate memorandum titled "Filibusters and Cloture in the Senate"
It was an almost straight party line vote. Republicans voted 50-4. Democrats voted
Roll Call No.
The Republicans who voted against the motion were
Sen. Larry Craig (R-ID),
Sen. John Sununu (R-NH),
Sen. Lisa Murkowski (R-AK), and
Sen. Bill Frist (R-TN). However, Sen. Frist, the
Senate Majority Leader, favored approval of the motion, but switched his vote to
no at the last moment, to preserve his ability to bring a motion to reconsider.
The Democrats who voted for the motion were
Sen. Tim Johnson (SD) and
Sen. Ben Nelson (D-NE).
Sen. Chris Dodd (D-CT) did not vote. TLJ categorizes
Sen. Jim Jeffords (VT) as a Democrat.
The House approved the conference report on December 14, 2005, by a vote of
251-174. See, story "House Approves Conference Report on PATRIOT
Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, December 15, 2005.
The 107th Congress enacted the PATRIOT Act quickly after the terrorist
attacks of September 11, 2001. It was
It became Public Law 107-56 on October 26, 2001. Much of Title II of the PATRIOT Act
pertains to electronic surveillance affecting new technologies. § 224 of the PATRIOT
Act provides that many of the provisions of Title II sunset at the end of 2005, unless
extended. Both the House and Senate versions of the HR 3199 approved last summer
permanently extended almost all of the sunsetted provisions.
16 sections of the PATRIOT Act are scheduled to expire on December 31, 2005,
if not extended. The conference report on HR 3199 permanently extends 14
sections, provides for a limited sunsetting of two sections, and contains
numerous amendments. It also contains much that is unrelated to extending the
expiring provisions of the PATRIOT Act.
conference report [219 pages in PDF] maintains a qualified four year sunset for § 206
(regarding roving surveillance authority under the Foreign Intelligence
Surveillance Act, or FISA) and
§ 215 (which pertains to access to business records, including library records,
under the FISA).
During debate in
the Senate on December 16, Sen. Frist (at left) stated that "In the
days following 9/11, we learned that the enemy had been able to elude law
enforcement, in part because our agencies were not able to share key
investigative information. Once we understood this awful reality, we swiftly
took action. Within 6 weeks of the attacks on America, the Congress passed the
USA PATRIOT Act with overwhelming bipartisan support. The Senate vote was near
unanimous, with 98 Senators voting in favor. The PATRIOT Act went to work
tearing down the information wall between agencies and allowed the intelligence
community and law enforcement to work more closely in pursuit of terrorist
He continued that "Since then, it has been highly effective in tracking down
terrorists and making our country safer. Because of the PATRIOT Act, the United
States has charged over 400 suspected terrorists. More than half of them have
already been convicted. Because of the PATRIOT Act, law enforcement has broken
up terrorist cells all across the country, from New York to California, Oregon,
Virginia, and Florida."
He argued that "The conference report to reauthorize the PATRIOT Act includes
all of these provisions and goes further to strengthen and improve America's
security. It enhances vital safeguards to protect our civil liberties and
privacy, and it contains new provisions to combat terrorist financing and money
laundering, to protect our mass transportation systems and railways from attacks
such as the ones on the London subway last summer, secure our seaports, and
fight methamphetamine drug abuse, America's No. 1 drug problem.
"The clock is ticking. We do need to take action now. In just 15 days",
said Sen. Frist, the sunsets will take effect.
Senate Democrats criticized the conference report.
Sen.Harry Reid (D-NV), the Senate Minority
Leader, stated that "The final bill was written by Republican-only conferees
working behind closed doors with Justice Department lawyers."
Sen. Reid (at right)
stated that "I supported the passage of the original PATRIOT Act in 2001. This
was enacted in the days immediately following the vicious attacks on September 11,
2001. I do not regret my vote. Much of the original act consisted of noncontroversial
efforts to update and strengthen basic law enforcement authorities. More than 90 percent
of the 2001 act is already part of permanent law and will not expire at the end of this
"We are currently considering renewal of these provisions that were considered
so expansive and so vulnerable to abuse that Congress wisely decided to subject
them to 4-year sunsets, meaning that after 4 years they had to be renewed or
they would fall. The authors of the act wanted Congress to reassess these in a
more deliberative manner with the benefit of experience."
He argued that "Now, more than 4 years later, we are presented with the opportunity
to do it right. While the conference report before us makes certain improvements over the
original PATRIOT Act, it still does not strike the right balance. We can provide
the Government with the powers it needs to investigate potential terrorists and
terrorist activity and at the same time protect the freedom of innocent
Americans. Liberty and security are not contradictory. Additional congressional
and judicial oversight of the Government's surveillance and investigative
authorities need not hamper the Government's ability to fight terrorism."
Sen. Reid, citing the Washington Post, stated that "the FBI issues more than
30,000 national security letters a year -- 30,000. These letters go to
businesses." He discussed the widespread use of these to compel the Las Vegas casino
industry business to give customer data to the Department
of Homeland Security (DHS).
He continued that "I am disturbed the conference report provides neither
meaningful judicial review nor a sunset provision for those provisions regarding
national security letters. Instead of protections, this conference report
effectively turns these NSLs, as they are referred to, national security
letters, into administrative subpoenas. For the first time, the report
authorizes the Government to seek a court order to compel compliance with one of
these letters. Recipients who do not comply could be found in contempt, fined,
or even sent to jail."
Sen. Patrick Leahy (D-VT), the ranking Democrat on the
Senate Judiciary Committee,
spoke after the vote on the cloture motion. See,
statement. He said that
"The sunset provisions -- the very reason we are having this debate and this
re-evaluation of the PATRIOT Act -- are in there because Dick Armey and I fought for them
and included them in the final bill."
He said that "Our goal has been to mend the PATRIOT Act, not to end it. The best
solution is to just fix the bill. We can do that before we adjourn next week, if they’ll
let us. I am ready at this moment, and as long as it takes, to work
to make this a better bill, and a consensus bill."
Alberto Gonzales (at left)
released a statement after the vote. He wrote that "These provisions of the USA
PATRIOT Act are essential to our efforts in the war on terrorism and their loss will
damage our ability to prevent terrorist attacks. Our Nation cannot afford to let these
important counterterrorism tools lapse. The House of Representatives has already acted,
through a bipartisan vote that renewed the PATRIOT Act's sunsetted provisions while
strengthening the Act's significant civil liberties protections. After 23 congressional
hearings, testimony from more than 60 different witnesses, and months of deliberations,
it is now time for the Senate to act. National security should not be compromised with
procedural delaying tactics. The PATRIOT Act has clear bipartisan majority support, and
the Senate should be allowed to vote up or down on the conference report. The American
people deserve no less."
President Bush discussed the PATRIOT Act on Saturday, December 17, in his weekly
He said that the Senate's failure to approve the cloture motion "is
irresponsible, and it endangers the lives of our citizens".
He stated that "One of the first actions we took to protect America after our
nation was attacked was to ask Congress to pass the Patriot Act. The Patriot Act
tore down the legal and bureaucratic wall that kept law enforcement and
intelligence authorities from sharing vital information about terrorist threats.
And the Patriot Act allowed federal investigators to pursue terrorists with
tools they already used against other criminals."
"Since then," said Bush, "America's law enforcement personnel have used
this critical law to prosecute terrorist operatives and supporters, and to break up terrorist
cells in New York, Oregon, Virginia, California, Texas and Ohio. The Patriot Act
has accomplished exactly what it was designed to do: it has protected American
liberty and saved American lives."
"Yet key provisions of this law are set to expire in two weeks. The terrorist
threat to our country will not expire in two weeks. The terrorists want to
attack America again, and inflict even greater damage than they did on September
the 11th. Congress has a responsibility to ensure that law enforcement and
intelligence officials have the tools they need to protect the American people."
He concluded, "Yet a
minority of senators filibustered to block the renewal of the Patriot Act when
it came up for a vote yesterday. That decision is irresponsible, and it
endangers the lives of our citizens. The senators who are filibustering must
stop their delaying tactics, and the Senate must vote to reauthorize the Patriot
Act. In the war on terror, we cannot afford to be without this law for a single
|President Bush Discloses Interception of
Communications Without Court Approval
12/17. President Bush used his regular
radio address on December 17, 2005, to discuss the PATRIOT Act,
electronic surveillance, and extension of the PATRIOT Act.
He disclosed, in vague terms, that since shortly after the terrorist attacks
of September 11, 2001, the National Security Agency
(NSA) has been intercepting international communications involving persons linked to
terrorism, pursuant to President Bush's authority. He did not state that these intercepts
have been pursuant to orders issued by the court established by the Foreign Intelligence
Surveillance Act (FISA). See, Title 50, Chapter 36, of the U.S. Code.
Bush stated that he authorized the NSA to "intercept the international
communications of people with known links to al Qaeda and related terrorist
Bush referenced the "constitutional authority vested in me as
Commander-in-Chief", and his authority under the "Joint Authorization for Use of
Military Force". See,
Bush did not expressly state state the intercepts have included
communications of persons in the United States. However, media reports have
President Bush said that "Yesterday the existence of this secret program was revealed in
The New York Times published a
James Risen and Eric Lichtblau titled "Bush Lets U.S. Spy on Callers Without
Courts" on December 16, 2005. It states that "President Bush secretly authorized
the National Security Agency to eavesdrop on Americans and others inside the
United States to search for evidence of terrorist activity without the
court-approved warrants ordinarily required for domestic spying, according to
Also on December 14, MSNBC published a
story by Lisa Myers, Douglas
Pasternak, and Rich Gardella titled "Is the Pentagon spying on Americans?
Secret database obtained by NBC News tracks ‘suspicious’ domestic groups". The
story states that "A secret 400-page Defense Department document obtained by NBC
News" demonstrates that "the U.S. military has stepped up intelligence
collection inside this country since 9/11, which now includes the monitoring of
peaceful anti-war and counter-military recruitment groups."
Sen. Patrick Leahy (D-VT), the ranking
Democrat on the Senate Judiciary Committee,
spoke in the Senate on December 16
regarding the New York Times story. See, statement.
Sen. Leahy (at right) said that
"the threat to civil liberties is also very real in America today". He continued
that "Today’s New York Times reports that over the past three years, under a
secret order signed by President Bush, the government has been monitoring the
international telephone calls and international e-mail messages of people inside
the United States, without court approval. This warrant-less eavesdropping
program is not authorized by the PATRIOT Act or by any act of Congress.
According to the reports, it is being conducted under a secret presidential
order, based on classified legal opinions by the same Justice Department lawyers
who argued that the President could order the use of torture."
Bush remained firm. He disclosed the existence of the intercept program,
asserted its legality and necessity, and stated that it will continue.
He explained that "In the weeks following the terrorist attacks on our nation,
I authorized the National Security Agency, consistent with U.S. law and the Constitution,
to intercept the international communications of people with known links to al
Qaeda and related terrorist organizations. Before we intercept these
communications, the government must have information that establishes a clear
link to these terrorist networks."
He continued that "This is a highly classified program that is crucial to our
national security. Its purpose is to detect and prevent terrorist attacks against the
United States, our friends and allies. Yesterday the existence of this secret program
was revealed in media reports, after being improperly provided to news
organizations. As a result, our enemies have learned information they should not
have, and the unauthorized disclosure of this effort damages our national
security and puts our citizens at risk. Revealing classified information is
illegal, alerts our enemies, and endangers our country."
"As the 9/11 Commission pointed out, it was clear that terrorists inside the
United States were communicating with terrorists abroad before the September the
11th attacks, and the commission criticized our nation's inability to uncover
links between terrorists here at home and terrorists abroad. Two of the
terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid
al Mihdhar, communicated while they were in the United States to other members
of al Qaeda who were overseas. But we didn't know they were here, until it was
Bush said that "The authorization I gave the National Security Agency after
September the 11th helped address that problem in a way that is fully consistent with my
constitutional responsibilities and authorities. The activities I have
authorized make it more likely that killers like these 9/11 hijackers will be
identified and located in time. And the activities conducted under this
authorization have helped detect and prevent possible terrorist attacks in the
United States and abroad."
He added that "I have reauthorized this program more than 30 times since the
September the 11th attacks, and I intend to do so for as long as our nation faces a
continuing threat from al Qaeda and related groups." He also said that "Leaders
in Congress have been briefed more than a dozen times on this authorization and the
activities conducted under it."
He concluded that "This authorization is a vital tool in our war against the
terrorists. It is critical to saving American lives. The American people expect me to do
everything in my power under our laws and Constitution to protect them and their
civil liberties. And that is exactly what I will continue to do, so long as I'm
the President of the United States."
President Bush did not expressly state that he had not sought approval of the
President also delivered a
from the Oval Office at the White House on Sunday night, December 18, 2005. He
spoke solely about events in Iraq, and his policy with respect to Iraq and
terrorism. He did not address extension of the PATRIOT Act or electronic
surveillance. Also, Vice President Dick Cheney traveled to Iraq, and gave a
to troops on December 18. The trip was not announced in advance. He too
discussed Iraq and terrorism, but not the PATRIOT Act.
Jerry Berman, President of the Center for Democracy
and Technology (CDT), a Washington DC based interest group that focuses on policy
related to information technologies, stated in a release that "This secret NSA
surveillance program violates civil liberties and is clearly illegal under FISA.
The whole purpose of FISA was to end electronic surveillance authorized by
Presidents under claims of inherent presidential power. The lesson of Watergate
was that Presidents should not have inherent power to spy on Americans."
Berman added that "FISA was enacted with the Executive Branch understanding
that judges would approve electronic eavesdropping in the United States,
particularly by NSA, with its technological capability of being a vacuum cleaner
of electronic communications. If the President could go around FISA, the statute
would have been a futile exercise."
50 U.S.C. § 1811 provides that "Notwithstanding any other law, the
President, through the Attorney General, may authorize electronic surveillance
without a court order under this subchapter to acquire foreign intelligence
information for a period not to exceed fifteen calendar days following a
declaration of war by the Congress."
50 U.S.C. § 1802 provides, in part, that "the President, through the Attorney
General, may authorize electronic surveillance without a court order under this subchapter
to acquire foreign intelligence information for periods of up to one year if the Attorney
General certifies in writing under oath that -- (A) the electronic surveillance
is solely directed at -- (i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between or among foreign
50 U.S.C. § 1801 then defines "foreign powers" very broadly. It not only
includes "a foreign government", but also includes, among other things, "a group
engaged in international terrorism or activities in preparation therefor" and "a
foreign-based political organization, not substantially composed of United
|Chairman Barton Hospitalized
12/16. Rep. Joe Barton (R-TX), the Chairman
of the House Commerce Committee (HCC),
was hospitalized on Thursday evening, December 15, 2005. He had surgery to
Karen Modlin, Press Secretary
to Rep. Barton (at right), wrote in a December 15
"Chairman Barton felt ill during a meeting at the Capitol this evening. He was
treated by the Attending Physician and then admitted to George Washington University
Hospital. He is alert, resting and in stable condition. He is also unhappy to be absent,
and we expect his return to work as quickly as his doctors complete their evaluation and
release him. We will not presume a diagnosis, but we will update you further in the morning,
or earlier if further information becomes available."
Rep. Fred Upton (R-MI), the Chairman of the
HCC's Subcommittee on Telecommunications and the Internet, stated in the House on Friday,
December 16, that "He had three stents put in this morning". See, Congressional
Record, December 16, 2005, at page H11923.
The Food and Drug Administration's (FDA) web section
on cardiovascular disease contains a
on stents. It states that "A stent is a small, lattice-shaped, metal tube that
is inserted permanently into an artery. The stent helps hold open an artery so that blood
can flow through it." It adds that "A stent is used to hold open an artery that
has become too narrow due to atherosclerosis. In atherosclerosis, plaque builds up on the
inner walls of arteries, the blood vessels that carry oxygen-rich blood throughout the
body." The FDA adds that "Once in place, the stent helps holds the artery open so
that the heart muscle gets enough blood."
See also, the National Institute of Health's (NIH)
National Library of Medicine's (NLM)
Rep. Upton also said that "I talked with him at length a little bit earlier this
morning. He is doing quite well." And, Rep. Upton said that "He is expected to
make a full recovery. In fact, he may be here later in the weekend to cast a
vote or two if it is required."
Rep. Barton missed roll call votes on Friday and Saturday.
|People and Appointments
12/16. President Bush nominated Randy Smith to be a Judge of the
U.S. Court of Appeals (9thCir). See,
release. Smith is a state court judge in Idaho. The judge he is nominated to
replace is Stephen Trott, whose state is debated. Trott was from California at
the time of his appointment, but later moved to Idaho. 9th Circuit nominations
are normally divisive on ideological grounds. This nomination is also divisive
on state of origin grounds. Some Californians argue that the seat is a
California seat, and must be filled by a Californian.
12/16. President Bush nominated Michael Barrett to be a Judge of the
U.S. District Court for the Southern District of Ohio. See, White House
12/17. The full Senate confirmed William Kovacic to be a Commissioner of
the Federal Trade Commission (FTC). See,
Senate Commerce Committee
and Congressional Record, December 17, 2005, at page S13965.
12/17. The full Senate confirmed Thomas Rosch to be a Commissioner of
the Federal Trade Commission (FTC). See,
Senate Commerce Committee
and Congressional Record, December 17, 2005, at page S13965.
12/17. The Senate confirmed Dale Meyerrose to be Chief Information
Officer at the Office of the Director of National Intelligence. See,
Congressional Record, December 17, 2005, at page S13965.
12/17. The Senate Finance Committee approved
the nomination of Antonio Fratto to be Assistant Secretary of the Treasury for
Public Affairs on December 16. The full Senate confirmed the nomination on December 17.
See, Congressional Record, December 17, 2005, at page S13965..
12/17. The Senate Finance Committee approved
the nomination of David Spooner to be Assistant Secretary of Commerce for Import
Administration on December 16. The full Senate confirmed the nomination on
December 17. See, Congressional Record, December 17, 2005, at page S13965..
12/17. The Senate Finance Committee approved
the nomination of David Bohigian to be Assistant Secretary of Commerce, Market
Access and Compliance on December 16. The full Senate confirmed the nomination on
December 17. See, Congressional Record, December 17, 2005, at page S13965.
12/17. The Senate Finance Committee approved
the nomination of Richard Crowder to be Chief Agricultural Negotiator at the Office
of the U.S. Trade Representative (USTR) on December 16. The full Senate confirmed the
nomination on December 17. See, Congressional Record, December 17, 2005, at page
|Washington Tech Calendar
New items are highlighted in red.
|Monday, December 19
The House is not scheduled to meet. On
Sunday, December 18, it adjourned until 4:00 PM on December 22, 2005 unless
it sooner has received a message from the Senate consistent with the provisions of
The Senate will meet at 9:30 AM.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response
to its notice of proposed rulemaking regarding its rules affecting Wireless Radio
Services. This item is FCC 05-144 in WT Docket Nos. 03-264. The FCC adopted this
item on July 22, 2005. It released the
text [67 pages in PDF] on August 9, 2005. See,
notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at
Pages 60770 - 60781.
Deadline to submit comments to the Securities
and Exchange Commission (SEC) regarding improving the
draft RFP [154 pages in PDF] for remaking the SEC's Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) Platform. See also, SEC
release, draft RFP
cover letter [PDF], and story titled "SEC Seeks Contractor to Remake EDGAR"
in TLJ Daily E-Mail Alert No. 1,259, November 23, 2005.
|Tuesday, December 20
Federal Trade Commission (FTC)
will hold a news conference to announce "civil and criminal law enforcement
initiatives targeting illegal spam operations". The speakers will be Lydia
Parnes (Director of the FTC's Bureau of Consumer Protection), Andrea Rosen
(Assistant Deputy Commissioner, Canadian Competition Bureau), and Alan Curry (Proxypot.com).
The FTC's notice further states that "Reporters interested in this event, but
who are unable to attend, can call-in using the following information:
Dial-in Number: 800-597-7623
Chairperson: Gracie Johnson/Gail Feelings
Confirmation Number: 46625340".
Location: FTC, Room 432, 600 Pennsylvania Ave., NW.
10:30 AM. Homeland Security Secretary
Michael Chertoff will
speak on "homeland security accomplishments and priorities". The DHS notice states that
"Media wishing to attend must present valid press credentials and arrive no later than
10:15 a.m. to the H Street entrance. For more information please contact 202-282-8010."
Location: George Washington University, Media and Public Affairs Building, Jack Morton
Auditorium, 805 21st Street, NW.
|Wednesday, December 21
12:00 NOON. The
Patent Office Professional Association (POPA) will
host its annual meeting at 12:00 NOON, and a reception for retiring President Ron Stern
at 1:00 PM. Location: Madison Building Auditorium, North 600 Dulany Street,
|Friday, December 23
Informal deadline to submit comments to
Rep. Lee Terry (R-NE) and/or
Rep. Rick Boucher (D-VA) regarding their
discussion draft [31
pages in PDF] of a bill to be titled the "Universal Service Reform Act of
2005". See, story titled "Reps. Terry and Boucher Propose New Internet
Taxes" in TLJ Daily E-Mail Alert No. 1,257, November 21, 2005.
|Sunday, December 25
Hanukkah begins at sundown.
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