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December 19, 2005, 8:00 AM ET, Alert No. 1,275.
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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 HR 3199, 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 2-44. See, Roll Call No. 358.

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 HR 3162. 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.

The 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).

Sen. Bill FristDuring 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 suspects."

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. Harry ReidSen. 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 year."

"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 GonzalesAttorney General 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 radio address. 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 moment."

President Bush Discloses Interception of Communications Without Court Approval

12/17. President Bush used his regular Saturday 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 organizations".

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, text.

Bush did not expressly state state the intercepts have included communications of persons in the United States. However, media reports have asserted this.

President Bush said that "Yesterday the existence of this secret program was revealed in media reports".

The New York Times published a story by 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 government officials."

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. Patrick LeahySen. 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 too late."

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 FISA court.

President also delivered a speech 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 speech 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 powers ..."

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 States persons".

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 insert stents.

Rep. Joe BartonKaren Modlin, Press Secretary to Rep. Barton (at right), wrote in a December 15 release that "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 web page 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) definition of stent.

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, White House 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 release.

12/17. The full Senate confirmed William Kovacic to be a Commissioner of the Federal Trade Commission (FTC). See, Senate Commerce Committee release 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 release 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 S13965.

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 HConRes 326.

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

10:30 AM. 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 ( 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, Alexandria, VA.

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.

Monday, December 26

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

There will be no issue of the TLJ Daily E-Mail Alert.

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