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Congressman Jim Sensenbrenner (R-WI) prepared the following statement for today’s House Judiciary Committee markup on H.R. 1944, the Private Property Rights Protection Act of 2013:

I thank the Chairman for putting H.R. 1944, the Private Property Rights Protection Act of 2013, on today’s calendar.  This legislation has been around for a number of years, and I am pleased that has enjoyed support from both sides of the aisle. 

This legislation was originally drafted in response to the Supreme Court’s decision in Kelo vs. City of New London.  In this 2005 decision, the court held 5-4 that “economic development” can be a “public use” under the Fifth Amendment’s Takings Clause, justifying the government’s taking of private property. This ruling justified the government’s taking of private property from one small homeowner and giving it to a private business for use in the interest of creating a more lucrative tax base.  

Kelo grants the government significant power with virtually zero accountability to the “public use” requirement in the Fifth Amendment’s Taking Clause. The implications of this decision transformed the original purpose of the “public use” limitation. Kelo permits the government to force individuals to forfeit their private property to a large corporation. 

The dissent Kelo protested this over-reaching power and modification of the takings clause.  Former Justice O’Connor stated, “The government now has license to transfer property from those with fewer resources to those with more.  The Founders cannot have intended this perverse result.”

Other groups including the AARP and NAACP also opposed Kelo, noting that “The takings that result [from the Court’s decision] will disproportionately affect and harm the economically disadvantaged and, in particular, racial and ethnic minorities and the elderly.”  Furthermore, representatives of religious organizations have stated that “Houses of worship and other religious institutions are, by their very nature, non-profit and almost universally tax-exempt. These fundamental characteristics of religious institutions render their property singularly vulnerable to being taken under the rationale approved by the Supreme Court.”  

In 2005, I first introduced a version of this bill to restore to all Americans the property rights the Supreme Court took away. That bill, H.R. 4128, passed with the clear support of this House by a vote of 376-38. Since Kelo, more than 40 states have passed laws to rein in eminent domain power. Yet, these laws exist on a varying degree, and the need to ensure that property rights are returned to all Americans is as strong now as it was when Kelo was decided.  

The Private Property Rights Protection Act enhances the penalty for states and localities that abuse their eminent domain power by denying states or localities that commit such abuse all federal economic development funds for a period of two years.  Specifically, if a state or political subdivision of a state uses its eminent domain power to transfer private property to other private parties for economic development, the state is ineligible to receive federal economic development funds for two fiscal years following a judicial determination that the law has been violated.  Additionally, the bill prohibits the federal government from using eminent domain for economic development purposes.

The protection of property rights is one of the most important tenets of our government.  I am mindful of the long history of eminent domain abuses, particularly in low-income and often predominantly minority neighborhoods, and the need to stop it.  I am also mindful of the reasons we should allow the government to take land when the way in which the land is being used constitutes an immediate threat to public health and safety.  I believe this bill accomplishes both goals. 

I urge my colleagues to join me in protecting property rights for all Americans and limiting the dangerous effects of the Kelo decision on the most vulnerable in society.  I yield back the balance of my time.
The Guardian home

By Representative Sensenbrenner

Published June 9, 2013

We've gotten used to what "Big Government" looks like – Washington's unchecked deficit spending, the Obama administration's policing of the press and the IRS's targeting of conservative groups. But the problem is bigger than we thought. "Big Brother" is watching. And he is monitoring the phone calls and digital communications of every American, as well as of any foreigners who make or receive calls to or from the United States.

Last week, the Guardian reported that the Obama administration is collecting records of every call made to, from or within the US, as well as records of many digital communications. President Obama has tried to deflect criticism by claiming "every member of Congress has been briefed on this program." While some members of Congress were briefed – particularly those on the intelligence committees – most, including myself, were not.

The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.

I was the chairman of the House judiciary committee when the US was attacked on 11 September 2001. Five days later, the Justice Department delivered its proposal for new legislation. Although I, along with every other American, knew we had to strengthen our ability to combat those targeting our country, this version went too far. I believed then and now that we can defend our country and our liberty at the same time.

I immediately called then-House Speaker Dennis Hastert and asked him for time to redraft the legislation. I told the speaker that if the legislation moved forward as drafted, I would not only vote against it, but would actively oppose it.

The country wanted action, and the pressure from the White House was intense. To his credit, Speaker Hastert gave us more time. There were endless meetings and non-stop negotiations with the White House, the FBI and the intelligence community. The question could not have been more fundamental: how could we defend our liberty and protect the American people at the same time?

The legislation had to be narrowly tailored – everyone agreed that we could not allow unrestrained surveillance. The Patriot Act had 17 provisions. To prevent abuse, I insisted on sunsetting all the provisions so that they would automatically expire if Congress did not renew them. This would allow Congress to conduct oversight of the administration's implementation of the act.

In 2006, Congress made 14 of the provisions permanent because they were noncontroversial. The three remaining provisions, including the so-called business records provision the administration relied on for the programs in question, will expire in 2015 if they are not reauthorized.

The final draft was bipartisan and passed the judiciary committee unanimously. The Patriot Act has saved lives by ensuring that information is shared among those responsible for defending our country and by giving the intelligence community the tools it needs to identify and track terrorists.

In his press conference on Friday, President Obama described the massive collection of phone and digital records as "two programs that were originally authorized by Congress, have been repeatedly authorized by Congress". But Congress has never specifically authorized these programs, and the Patriot Act was never intended to allow the daily spying the Obama administration is conducting.

To obtain a business records order like the one the administration obtained, the Patriot Act requires the government to prove to a special federal court, known as a Fisa court, that it is complying with specific guidelines set by the attorney general and that the information sought is relevant to an authorized investigation. Intentionally targeting US citizens is prohibited.

Technically, the administration's actions were lawful insofar as they were done pursuant to an order from the Fisa court. But based on the scope of the released order, both the administration and the Fisa court are relying on an unbounded interpretation of the act that Congress never intended.

The released Fisa order requires daily productions of the details of every call that every American makes, as well as calls made by foreigners to or from the United States. Congress intended to allow the intelligence communities to access targeted information for specific investigations. How can every call that every American makes or receives be relevant to a specific investigation?

This is well beyond what the Patriot Act allows.

President Obama's claim that "this is the most transparent administration in history" has once again proven false. In fact, it appears that no administration has ever peered more closely or intimately into the lives of innocent Americans. The president should immediately direct his administration to stop abusing the US constitution.

We all know the saying "eternal vigilance is the price of liberty." We are seeing that truth demonstrated once again.

Our liberties are secure only so long as we are prepared to defend them. I and many other members of Congress intend to take immediate action to ensure that such abuses are not repeated.

View online: here

By Representative Sensenbrenner

June 7, 2013

By my count, Attorney General Eric Holder said some version of "I don't know" 30 times in response to questions at the House Judiciary Committee's recent hearing. His evasive testimony epitomized what has seemed like an almost compulsive effort at the Justice Department to avoid accountability.

On May 3, 2011, Holder testified that he "probably heard about Fast and Furious for the first time over the last few weeks." House investigators soon realized, however, that updates on the Fast and Furious program were included in weekly briefings to the attorney general beginning at least 10 months earlier in July 2010. The attorney general nonetheless maintained that he had not read the briefings and his testimony was "truthful and accurate."

Sen. Chuck Grassley (R-Iowa) then noted he had personally handed the attorney general a letter on Fast and Furious over three months before the hearing. Faced with this, Holder conceded, "I probably could've said 'a couple of months.'"

This game of who-knew-what-when sounds like political gotcha, but Congress is charged with overseeing the administration, and oversight is impossible when the attorney general claims to be unaware of everything that happens under his watch.

Consistent with this policy of "see no evil, hear no evil," on May 15, 2013, Holder told the House Judiciary Committee: "In regard to potential prosecution of the press for the disclosure of material — this is not something I've ever been involved in, heard of, or would think would be wise policy."

The attorney general was right that it was not a wise policy, but unfortunately, everything else he said was misleading. Holder's testimony was in response to questions about the department's shockingly broad subpoenas of the Associated Press's phone calls. Holder had recused himself from the AP investigation — though the details of when and why he recused himself remain vague — so he believed he was insulated from accusations of wrongdoing. Soon after the hearing, however, it became public that the department had secured a warrant to obtain email records of Fox News reporter James Rosen, and this time, the attorney general was involved in the decision to issue the warrants.

The Department of Justice rallied to defend its attorney general. A department official told the Huffington Post: "To our knowledge, the Department of Justice has never prosecuted a reporter. No reporter has ever been charged by the Department of Justice simply for publishing information obtained through an illegal leak of classified information by a government official."

Except Holder did not say he had no knowledge of prosecutions, he said he had no knowledge of potential prosecutions. Why is the Department of Justice swearing under oath that it had probable cause to believe James Rosen violated the Espionage Act if it was not considering a prosecution for the crime? Why was it subpoenaing AP records from 20 phone lines if it was not considering prosecuting AP reporters?

The scope of the department's warrant is also inconsistent with its contention that it was not investigating Rosen. The department's warrant granted access not only to Rosen's communication with the State Department's Stephen Kim, who the department is prosecuting for disclosing classified information, but also to "[a]ny document, image, record, or information concerning the national defense ...and other Department of Defense, U.S. military, and/or weapons material... and any communications concerning such documents, images, records, or information."

Further, the department argued to three federal judges before it finally convinced a judge to allow it to keep its warrant for Rosen's emails a secret. The secrecy was important to the department because it wanted to continue monitoring Rosen's email over an extended period of time.

With both Fast and Furious and the press investigations, if the attorney general is telling the truth, the truth is probably worse than the lie. If the attorney general first heard of Fast and Furious from Grassley, whistleblowers had to reach out to Congress to get the attorney general to notice wrongdoing within his own department. If the Department of Justice has truly never considered a potential prosecution of the press for the disclosure of material, then the attorney general believes it is appropriate for the government to access reporter's personal records even if he believes they have done nothing wrong.

Holder's lack of accountability and control over his department has lost him the trust of both Congress and the American people. He should resign — a small step toward a renewed trust in a broken Washington plagued with scandal, debt and political games.

Did Eric Holder lie to Congress? It's my turn to say, "I don't know," but I might have more confidence in his leadership if we find out he lied because the alternative suggests gross mismanagement and a complete lack of respect for the First Amendment.

View online: here
Congressman Jim Sensenbrenner (R-WI) today sent a letter to Attorney General Eric Holder regarding the Federal Bureau of Investigation’s application for a top secret court order to collect the phone records of essentially every call made by millions of Verizon customers. 

Congressman Sensenbrenner: “As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation. While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. The Bureau’s broad application for phone records was made under the so-called business records provision of the Act.  I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.”
Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-WI) and House Judiciary Committee Chairman Bob Goodlatte (R-VA) sent a letter to Attorney General Eric Holder on May 29th. The letter sought answers to the discrepancies between his sworn testimony before the House Judiciary Committee and his role in obtaining a search warrant for the emails of James Rosen of Fox News. Last night, Attorney General Holder sent his response. Unsatisfied with his response, Judiciary Committee Republicans today sent another letter to Attorney General Holder requesting that he appear before the Committee on June 18, 2013, or some other time before the July 4th recess.

Congressman Sensenbrenner: “I appreciate the response from the Attorney General.  However, serious questions remain. Why did the Attorney General tell the Committee he had no knowledge of potential prosecutions even though he signed off on the Rosen warrant?  And why were the AP subpoenas and the Rosen warrant from the Department so broad?  I hope the Attorney General will return to the Committee to address these questions on the record.  If he does, and if his responses are satisfactory, we can at least put an end to questions about whether the Attorney General misled Congress.  

“In his response, Holder stated that he’s initiated a review of the Department’s policies related to investigations of the media.  That’s the fox guarding the hen house. Holder refuses to hold himself accountable.  The fundamental question is whether the Department can be trusted to police itself.  I am not convinced the chilling effect this has had on unfettered investigative journalism can be rectified under this Attorney General.”

The author of the Patriot Act said Thursday that a secret program under which the Obama administration was collecting phone records from millions of Americans is "excessive" and beyond the scope of the law. 

Rep. Jim Sensenbrenner, R-Wis., who wrote the 2001 law, was among a host of lawmakers on both sides of the aisle who raised alarm over the practice. 

The Guardian newspaper first reported the National Security Agency had been collecting records under a court order from millions of Verizon customers in the U.S. Defenders of the program tried to ease the furor by assuring the public this is "nothing new" -- and in fact has been going on for seven years. But the acknowledgement that the program is long running only fueled the outrage from civil liberties groups and lawmakers who described it as a blatant overreach. 

"This is a big deal, a really big deal," Sensenbrenner told Fox News, adding that such a broad seizure was "never the intent" of the law. He floated the possibility of amending the Patriot Act before its 2015 expiration to stop this. 

In a separate statement, he called the program "excessive and un-American." 

The Republican lawmaker also fired off a letter to Attorney General Eric Holder -- who would not comment on the program when asked about it Thursday -- explaining why he thinks the records collection goes astray of the law. He noted that the key section of the law that allows the government to obtain business records requires the information to be relevant to an authorized investigation. 

"How could the phone records of so many innocent Americans be relevant to an authorized investigation?" he asked in the letter. 

He said the order "could not have been drafted more broadly," and said he does not think it's "consistent" with the law's requirements. 

A handful of in-the-know lawmakers lined up to defend the program, while acknowledging the need to protect privacy. 

Rep. Mike Rogers, R-Mich., chairman of the House intelligence committee, said the effort is not "data mining," and has helped quash a terrorist attack on U.S. soil in the past few years. He would not elaborate. 

The leaders of the Senate intelligence committee also defended the program, saying it is "nothing new." Republican Georgia Sen. Saxby Chambliss said it's been going on for seven years. 

Chairwoman Sen. Dianne Feinstein, D-Calif., said these orders are actually renewed every three months through the court. She said the records are there for investigators to access if there is suspicion of terrorist activity. 

"The threat from terrorism remains very real and these lawful intelligence activities must continue, with the careful oversight of the executive, legislative and judicial branches of government," Feinstein and Chambliss said in a joint statement. 

Speaking later in the day, Senate Democratic Leader Harry Reid said "everyone should just calm down." 

Administration officials, while not directly acknowledging the order, defended their authority to collect records and stressed they're not listening in on conversations. 

However, civil liberties groups and some lawmakers sounded the alarm over the collection effort. 

"The National Security Agency's seizure and surveillance of virtually all of Verizon's phone customers is an astounding assault on the Constitution," Sen. Rand Paul, R-Ky., said. 

One civil liberties group called this the "broadest surveillance order to ever have been issued." 

"It requires no level of suspicion and applies to all Verizon subscribers anywhere in the U.S.," the Center for Constitutional Rights said in a statement. 

Sen. Bernie Sanders, I-Vt., who has historically opposed the Patriot Act, said the effort "is not what democracy is about." 

The report in the Guardian newspaper follows revelations that the Justice Department was seizing the phone records of journalists, including at Fox News, in the course of leak probes. 

The order, a copy of which apparently was obtained by The Guardian, reportedly was granted by the secret Foreign Intelligence Surveillance Court on April 25 and is good until July 19. 

It requires Verizon, one of the nation's largest telecommunications companies, on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the U.S. and between the U.S. and other countries. 

The text of the order, as published by The Guardian, says that "the Custodian of Records shall produce to the National Security Agency (NSA) upon service of this Order, and continue production on an ongoing daily basis thereafter for the duration of this Order, unless otherwise ordered by the Court, an electronic copy of the" the records in question. 

The newspaper claims the document shows for the first time that under the Obama administration the communication records of millions of U.S. citizens were being collected indiscriminately and in bulk, regardless of whether they were suspected of any wrongdoing. 

View online: here

Crime, Terrorism, Homeland Security and Investigations Subcommittee Chairman Jim Sensenbrenner (R-WI) prepared the following opening statement for today’s hearing on “The Department of Justice's Handling of Known or Suspected Terrorists Admitted into the Federal Witness Security Program”:

Last month, the Justice Department’s Inspector General released a report that should have sent chills through anyone who read it.  The report was titled “the Department of Justice’s Handling of Known or Suspected Terrorists Admitted into the Federal Witness Security Program,” but it just as easily could have been called “the Department of Justice’s MIS-handling” of this program.

The Witness Security Program, often called WITSEC, is a critical prosecutorial tool that has been in existence since 1971.  The program protects witnesses who agree to testify in a variety of different types of criminal cases, including drug trafficking, organized crime and, in recent years, terrorism cases.  For example, witnesses involved in the 1993 World Trade Center bombing and the “Blind Sheik” prosecutions have been included in the WITSEC Program.  In order to protect them from harm stemming from their testimony, participants are relocated to a new community by the Justice Department, afforded financial assistance, and provided a new name and identification documents.  
While conducting its periodic oversight into the WITSEC Program, the IG discovered that the Department – specifically, the U.S. Marshals Service and the Criminal Division’s Office of Enforcement Operations (“OEO”) –had little to no safeguards in place to make sure that the American people were protected from these potentially dangerous individuals.  While most of the details of what the IG discovered are contained in a much longer non-public report, the six-page public summary alone paints an extremely troubling picture.  

For example, the IG discovered that the Department did not actually know how many terrorists had been admitted to WITSEC.  It had lost track of at least two terrorists in the Program.  It was not sharing critical information about potential terrorist activities by WITSEC participants with our national security stakeholders, including the FBI.  And, the Department was not providing the witnesses’ new identities to the Terrorist Screening Center, which meant that these new names were also not included in the Transportation Security Administration’s No Fly List.  Accordingly, known terrorists who were trained in aviation and explosives, and who were banned from flying, were free to fly commercially at their whim.  I would say that this sounds like the plot of a Naked Gun movie if it weren’t so terrifying – and true.

One of the most important lessons after September 11th was the critical need for better information sharing among our national security and law enforcement entities.  The IG’s report makes it clear that there is still much work to be done in this regard.  Today, I expect to hear from the Justice Department how this mismanagement was allowed to happen, how the Department intends to mitigate the potential harm to our national security that has already been done, and what it is doing to make sure something like this doesn’t happen again.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wisc.) today sent a letter to Principal Deputy Assistant Attorney General Peter Kadzik in response to the letter they received from him yesterday.  On May 29, Chairman Goodlatte and Subcommittee Chairman Sensenbrenner wrote to Attorney General Eric Holder seeking answers to the discrepancies between his sworn congressional testimony before the
House Judiciary Committee and his decision to obtain a search warrant for the emails of James Rosen, the chief Washington correspondent for Fox News.  To date, the Committee has not received an on-the-record response from Attorney General Holder.

Below is the text of the letter.  To read the signed letter, click here.

“Dear Mr. Kadzik,

“We received yesterday a letter from you that you claim responds to our May 29th letter to the Attorney General.  It does not.  The Attorney General made on-the-record statements before the Judiciary Committee and the American people under oath that prompted our letter.  Congress and the American people deserve to have the Attorney General respond to the Committee on the record.  A letter from a subordinate that fails to answer many of our questions does not suffice.  
“We, along with other members of Congress, have been invited to an off-the-record meeting at the Justice Department with Attorney General Holder.  The email inviting us to this meeting says it “is one of a series of meetings with media and other organizations that the Attorney General is conducting as part of the policy review directed by the President.”  We support the policy review that the Department has initiated at the President’s behest.  But, as with your letter, an off-the-record policy review meeting with the Attorney General is not a substitute for an on-the-record response to our letter.

“We expect the Attorney General to respond fully, in writing, to our letter by close of business on Wednesday, June 5, 2013.  We look forward to his response.”