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The U.S. Department of Justice of the Inspector General released a report today highlighting the gross mishandling of known or suspected terrorists in the federal Witness Security Program (WITSEC). Participants of the WITSEC program are relocated, provided a new identity, financial aid and occupational training. 

It is unknown how many terrorists have been admitted into the program, but we do know it includes individuals trained in aviation and explosives, involved in bombing attacks and guilty of conspiracy to murder American citizens. While these individuals were included on the Transportation and Security Administration’s (TSA) “No-Fly List,” their new names are not listed. As a result, they have been able to fly on commercial planes in the United States. The location of at least two of the known or suspected terrorists in the program is unknown. 

Congressman Sensenbrenner: “I am outraged by the cosmic mishandling of terrorists in the Witness Security Program.  While someone must be held accountable, rest assured that Holder and the Obama Administration will once again pass the buck. Meanwhile, terrorists travel freely under new identities unknown by TSA. Like Boston, the failure to share pertinent information between agencies endangers American lives.  This is yet another example of the complete lack of leadership and adequate oversight by Attorney General Holder and the Justice Department. As we heard at this week’s Judiciary hearing, Attorney General Holder admittedly does not know what is happening under his watch.”  
Congressman Jim Sensenbrenner’s (R-WI) response to Attorney General Eric Holder’s testimony today at the oversight hearing on the U.S. Department of Justice before the House Judiciary Committee:

“As the head of the Department of Justice, it is Attorney General Holder’s responsibility to ensure the agency operates properly. But recent events further demonstrate that DOJ is inefficient and lacks adequate oversight and leadership. While the buck should stop with Attorney General Holder, he continues to pass the buck. He was not forthright at today’s hearing and refuses to hold himself or the Administration accountable. 

“We still need an adequate explanation on why the phone records of more than 20 AP reporters were subpoenaed.  The regulations place the responsibility for approving these requests directly on the attorney general. The Obama Administration claims to value the freedom of the press, but contradictorily, it has violated its own regulations regarding media subpoenas. While in certain instances, actions must be taken in the name of national security, the scope of this subpoena was an obvious abuse of power.

“The AP subpoena scandal also highlights the need for ECPA reform.  I have previously called for a warrant requirement before the government can request email content.  This scandal makes clear that the government should also have to pursue a warrant before obtaining phone records.  Americans, whether in the media or just ordinary citizens, should be protected from unnecessary government intrusions into their private lives.”

Over-Criminalization

May 11, 2013

Throughout my time in Congress, I have been concerned with the encroachment of government into the everyday lives of Americans. And as a long-serving member of the Judiciary Committee and current chairman of the Crime Subcommittee, I’ve seen first-hand how muddled the criminal code is.  It’s time to scrub it clean and reduce federal spending by eliminating unnecessary criminal laws. Criminalization is the bluntest tool Congress wields.  And over-criminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of our nation’s problems. 

It has been over 50 years since the criminal code was last revised.  Today, there are roughly 4,500 federal crimes on the books because Congress has passed criminal laws with increasing regularity that include duplication between federal and state law and lack an adequate mens rea – the intent to commit a crime.  And many regulations and rules exist that, if not abided by, result in criminal penalties, including incarceration.

Therefore, I am proud to announce that this week the House Judiciary Committee passed a resolution establishing the Over-Criminalization Task Force, which I will co-chair with Congressman Bobby Scott. The bipartisan task force will focus on reforms to streamline our criminal code – reviewing federal laws in Title 18, and addressing the codification of crimes outside it that have not gone through the Judiciary Committee, to modernize our criminal code. We will examine the extent of the problem, eliminate some of the most egregious examples from the code and establish guiding principles for future Congresses to foster better uniformity and consistency in criminalization. 

A concerted effort to reform the federal criminal code has resulted in a bill that exceeds 1,200 pages in length – the Criminal Code Modernization and Simplification Act, which I reintroduced this week.  If nothing else, the sheer volume of this bill brings the breadth of the criminal code and the need to reform it to light. The bill cuts over one-third of the existing criminal code and consolidates criminal offenses from other titles so that title 18 includes all major criminal provisions. We should ensure that the federal government’s role continues to be limited so state and local offenses are not subsumed within an ever-expanding criminal code.  

On Thursday, I discussed over-criminalization with Pat Robertson.
Congressman Jim Sensenbrenner (R-WI) reintroduced the Private Property Rights Protection Act today. This bill would provide American citizens with the means to protect their private property from inappropriate claims of eminent domain.  If a state or political subdivision of a state uses its eminent domain power to transfer private property to other private parties for the purpose economic development, the state would be ineligible for federal economic funds for two fiscal years following a judicial determination that the law has been violated. Additionally, the federal government would be prohibited from using eminent domain for economic development purposes. 

In Kelo v. City of New London, the Supreme Court ruled that “economic development” can be a “public use” under the Fifth Amendment’s Taking Clause. The ruling gave the government the authority to transfer property from someone with fewer resources to someone with more. Taking private property for private use disproportionately affects the poor, churches, religious institutions and non-profit organizations. It’s a fundamental liberty to allow private citizens to use their property for whatever lawful purpose they choose.

Congressman Sensenbrenner: “A large majority of Americans oppose the taking of private property for private uses, even if it is for the public economic good. Congress should fight to protect private property rights and reform the use and abuse of eminent domain. Under the Supreme Court’s decision, farmers in Wisconsin are particularly vulnerable. Farmland is less valuable than residential or commercial property, which means it doesn’t generate as much property tax as homes or offices. This bill would restore the property rights the Supreme Court took away.”
Congressman Jim Sensenbrenner (WI-5) and Congressman Sean Duffy (WI-7), along with several other members of the Wisconsin delegation, sent a letter today to the House Committee on Agriculture Chairman Frank Lucas and Ranking Member Collin Peterson.  The letter expresses opposition to the Dairy Market Stabilization Program (DMSP), which is included in the Dairy Security Act – part of the farm bill scheduled to be marked-up by the Committee later this month. 

Congressman Sensenbrenner: “Wisconsin has more dairy farmers than any other state and milk policies have a direct effect on our state’s economy and its ability to create and sustain jobs. While I support better risk management tools to hedge against losses in the dairy industry, market stabilization could negatively impact Wisconsin’s ability to export milk due to the threat of an inconsistent supply. DMSP would create additional government intrusion – keeping prices artificially high, wasting government funds and stifling job growth. 

“We should not deter dairy farmers from producing additional milk in order to manage over-production in other areas. It is important to ensure the Agriculture Committee is aware of dairy’s importance to Wisconsin and our milk producers are not unintentionally hurt by a bill intended to help American farmers.” 

Congressman Duffy: “I have always supported passing a long term farm bill in order to give farmers the certainty they need for planning and making business decisions. Additionally, the Wisconsin dairy industry has seen tremendous growth in recent years driven primarily from exports. The controversial supply management program included in last year's farm bill would threaten that growth and Wisconsin jobs. Removing this provision will make it easier to get a farm bill passed as soon as possible, giving Wisconsin’s dairy industry the best opportunity to flourish in the future.”  

Letter to Chairman Lucas and Ranking Member Peterson
The House Judiciary Committee approved today the creation of the bipartisan Over-Criminalization Task Force. The task force will consist of five Republicans and five Democrats and will be led by Crime, Terrorism, Homeland Security and Investigations Subcommittee Chairman Jim Sensenbrenner (R-WI) and Ranking Member Bobby Scott (D-VA).

Chairman Sensenbrenner: “As former chairman and long-serving member of the Judiciary Committee, I’ve seen first-hand just how muddled the criminal code is.  It’s time to scrub it clean. The Over-Criminalization Task Force will review federal laws in Title 18, and laws outside of Title 18 that have not gone through the Judiciary Committee, to modernize our criminal code. 

“In addition, I reintroduced the Criminal Code Modernization and Simplification Act today, which would reform Title 18 of the U.S. Code, reduce the existing criminal code by more than one-third and update the code to make it more comprehensible.” 

Congressman Sensenbrenner prepared the following opening statement for today’s full Committee markup of the “Over-Criminalization Task Force Resolution of 2013”:

The Over-criminalization Task Force established by this resolution continues the Committee’s bipartisan review of over-criminalization and over-federalization that began two Congresses ago.  The Crime Subcommittee held hearings in both the 111th and 112th Congress to resurrect important policy discussions that had been dormant for over two decades about the breadth and scope of federal criminal law.  

Today, there are roughly 4,500 federal crimes on the books.  And still many more regulations and rules that, if not abided by, result in criminal penalties, including incarceration.  Many of these laws impose criminal penalties – often felony penalties – for violations of federal regulations.  

Americans are expected to know it is wrong to commit murder or burglary or engage in an act of terrorism, regardless of what the law says.  But today Americans must contend with literally thousands of obscure and cumbersome federal regulations, a simple misreading or ignorance of a regulation can land a person in prison.  

An even more fundamental issue raised by such regulations is whether the prohibited conduct should be criminalized in the first place.  Unfortunately, many regulatory crimes improperly define the elements of criminality, including omitting or improperly defining the appropriate level of criminal intent.  

The growth in criminal regulations has also caused an expansion of the number of federal agencies empowered to investigate this “criminal” conduct.  We are all familiar with criminal investigative agencies such as the FBI, DEA, or Immigration and Customs Enforcement.  But what about the National Marine Fisheries Service within the National Oceanic and Atmospheric Administration?  Or the Office of Criminal Investigations within the Food and Drug Administration?  Along with broad-sweeping criminal regulations comes a host of investigative agencies eager to enforce them.  

The goal of the Over-criminalization Task Force is to conduct a more in-depth analysis of these and other over-criminalization and over-federalization issues, to identify improvements to federal law and the House Rules, and to make bipartisan, unanimous recommendations to the Committee.

It has been over 50 years since the criminal code was last revised.  The existing criminal code is riddled with provisions that are either outdated or simply inconsistent with more recent modifications to reflect today’s modern approach to criminal law.  

Through the years, the criminal code has grown with more and more criminal provisions, some of which are antiquated or redundant, some of which are poorly drafted, some of which have not been used in the last 30 years, and some of which are unnecessary since the crime is already covered by other existing criminal provisions.

Today I will re-introduce the Criminal Code Modernization and Simplification Act to reform and recodify Title 18 of the U.S. Code.  This effort to reform the federal criminal code has resulted in a bill that exceeds 1,200 pages in length – and this bill encompasses only Part I of Title 18.  If nothing else, the sheer volume of this bill brings into specific focus the breadth of the criminal code and the need to reform it.    

I look forward to working with Ranking Member Scott and the other members of the Task Force to identify common-sense, bipartisan solutions to not only reform the criminal laws within Title 18 but also the myriad of criminal laws that are now scattered throughout many of the fifty-one titles of the U.S. Code.  
Congressman Jim Sensenbrenner (R-WI) sent the following letter today to the acting administrator of the Environmental Protection Agency (EPA), Robert Perciasepe, requesting the EPA reconsider its comments on the State Department’s Environmental Impact Statement (EIS) regarding the construction and operation of the Keystone XL pipeline project: 

Dear Administrator Perciasepe:

I am concerned about the content and tone of your recent comment letter to the State Department regarding the Keystone XL pipeline.  I recognize that the Environmental Protection Agency (EPA) was legally required to submit its review of the Environmental Impact Statement (EIS).  However, some of the conclusions reached in the letter appear to be a regurgitation of the environmental lobby’s talking points rather than an honest assessment of the Keystone XL pipeline project.  The EPA should base its assessments on science and real world scenarios.  Instead, this letter marks the latest attempt by the EPA to be the governmental arm of the environmental lobby. 

The EPA suggests that the State Department overestimates the feasibility of bringing oil to the marketplace without the approval of Keystone XL.  The EPA’s belief is that other transportation methods will not be able to meet the same delivery capacity as Keystone, and therefore, would not have the same greenhouse gas (GHG) emission impact.

But TransCanada has stated that this oil will be procured and shipped regardless of the approval of Keystone XL.  Canada is home to the third largest oil reserves in the world, and in tapping this valuable natural resource, it will look for ways to bring the Canadian oil sands to market.  Transportation by rail, ship, and other pipelines are all possibilities, and the global demand for oil likely ensures these methods will be maximized and expanded.  It is naïve of the EPA to suggest that, if the United States does not buy Canadian oil, it simply won’t be sold.

The Keystone XL pipeline is not the linchpin to increased GHG emissions that would result from extracting the oil from the Canadian oil sands.  Other potential customers will fill the void in the marketplace if the United States balks at approving the pipeline.  China had already indicated it is a willing buyer of the Canadian oil to meet its growing energy needs.  To suggest that the State Department is overestimating the potential global marketplace for this oil is to completely misunderstand the world’s growing energy needs.

In the letter, the EPA is also critical of the State Department for not providing enough detail about alternative routes for the pipeline.  The siting of oil pipelines, even those that cross state borders, is typically under the jurisdiction of the states.  The federal government is only involved in this project because it crosses an international border.  

The Keystone XL pipeline’s route has already been altered to address the environmental concerns of officials in Nebraska.  This reroute led to the approval of the project by Nebraska, resulting in all states through which the pipeline will run approving its construction.  In the spirit of federalism, the EPA should accept that these states have met their obligation to review the pipeline and drop its objection to the State Department’s review of alternative routes.

The EPA’s criticism of the pipeline’s safety is also objectionable.  At the State Department’s request, TransCanada has added 57 special safety measures for spill detection and mitigation.  According to TransCanada, these measures include an increased number of remote shut off valves, greater inspections, and burying the pipeline deeper underground.  These actions go far beyond what has been expected of any pipeline previously built in the United States. 

In a time of debt, deficits, and sequesters, the EPA should base any reviews on science and facts.  Working to provide political cover for the President should he cave to the environmental lobby is an inappropriate use of the EPA’s time and resources.  Please reconsider the EPA’s comments to the State Department’s EIS.   

Sincerely,

F. JAMES SENSENBRENNER, JR.
Member of Congress
Sequestration went into effect March 1st, triggering a 5.3 percent cut in non-defense discretionary spending for federal agencies for fiscal year 2013. The Federal Aviation Administration’s (FAA) budget was reduced by $633 million. As a result, the FAA is cutting the Contract Tower Program (CTP) by a disproportionate 75 percent, closing 149 towers nationwide and all eight in Wisconsin. FAA cuts have also led to staff reductions, furloughs and subsequent flight delays. 

Today, H.R. 1765, the Reducing Flight Delays Act, passed the House with strong bipartisan support. This bill would allow Secretary of Transportation Ray LaHood to transfer $253 million from the FAA’s Airport Improvement Program account to the FAA’s Operations account to prevent reduced operations and staffing at the FAA and ensure a safe and effective transportation system. 

Congressman Sensenbrenner: “The FAA claims the negative effects of budget cuts are unavoidable. I disagree. H.R. 1765 would prevent inexcusable delays and protect American jobs. While the bill does not require Secretary LaHood to fund the Contract Tower Program (CTP), it is my hope that he will direct a portion of the transferred funds to the CTP’s operational budget. Contract Towers are considerably safer and less expensive than FAA-staffed towers and should not be shut down as a result of sequestration. The Department of Transportation is riddled with waste. There is no reason for the American people to suffer the consequences of Washington’s inefficiencies.  The FAA should stop playing political games and target excess within the agency.”
Congressman Jim Sensenbrenner (R-WI) sent the following letter today to University of Wisconsin President Kevin Reilly regarding his management of federal funds: 

Dear President Reilly:

As President of the UW System, you are responsible for ensuring that taxpayer funding is handled in an appropriate and responsible manner.  I am concerned with the recent report from the non-partisan Legislative Fiscal Bureau.  

While the UW System has been raising tuition and clamoring for more taxpayer support, they have been stockpiling hundreds of millions of dollars in unspent tuition and federal grant monies.  The federal government provided the UW System with approximately $613 million in research grants for the fiscal year 2011.  And yet, a recent Legislative Fiscal Bureau memo found that millions were stashed away in a slush fund.  Specifically, the memo shows the UW System finished the year the year ending June 30, 2012, with nearly $650 million in cash reserves, including $414.1 million in tuition reserves. In total, the UW System ended the fiscal year with $1.05 billion balance. This end-of-the-year balance has nearly doubled since 2009.  Adding insult to injury, the System grew these surpluses as it steadily increased tuition rates. The Board of Regents has raised base tuition across the System’s four-year schools by 5.5 percent annually since the 2007-08 academic year. 

I continuously hear from young people who are frustrated with high college costs and student loans. Some end up taking on substantial debt, while others put their hopes on hold or forgo higher education completely. Students and their families rightly expect that their tuition money will be used to cover their tuition costs, not to build up historic amounts of cash reserves. Additionally, the federal government rightly expects that federal grants be used for their specified purpose, not to line the pockets of the University.

Given these facts, I would like you to respond to the following questions:

• Why was this surplus not disclosed prior to the audit? 
• Of the $650 million in reserves, how much is in unspent federal grant monies?   
• What constitutes an appropriate level of cash balances and financial reserves for an institution of your size?
• With this newly disclosed surplus, will you call for a freeze of tuition rates for the 2013-2014 school year? 

America’s system of higher education has always been one of shared responsibility: students, families, states, and the federal government all taking part in funding a college education.  It is essential that the UW System do its part by ensuring transparency in its finances. I look forward to hearing from you on the steps you plan to take regarding this matter. 

Sincerely, 

F. James Sensenbrenner, Jr.
Member of Congress
As the House Judiciary Committee considers updates to the Electronic Communications Privacy Act (ECPA), Congressman Jim Sensenbrenner (R-WI) sent a letter to Attorney General Eric Holder seeking clarity on the Department of Justice’s (DOJ) official policy on access to email communications.

In U.S. v. Warshak, the Sixth Circuit recognized that email is equivalent to a letter or phone call for the purposes of the Fourth Amendment. Therefore, the government cannot force an internet service provider to turn over the contents of an email without abiding by judicial procedures laid out by the Fourth Amendment, such as a warrant granted based on probable cause. The Department of Justice has indicated some support for this view, but should clarify its official policy.  

ECPA permits a governmental entity to force a service provider to disclose the contents of electronic communications in certain circumstances.  Under the compelled-disclosure provisions, the government can obtain communications without a warrant if they are stored with a remote computing service or an electronic service provider for more than 180 days. These distinctions are outdated and inconsistent with the Fourth Amendment.

Congressman Sensenbrenner: “It's no secret that, in the digital age, privacy is harder to maintain, but Americans should not have to choose between technology and privacy. The Fourth Amendment protects us from unreasonable searches and seizures. In the Internet-era, this should apply to email and other forms of electronic communication because it is central to our daily lives. As Americans, we have a reasonable expectation of privacy. In order to execute a search, legal procedures must be followed. Obtaining emails without going through the proper judicial channels violates the Fourth Amendment. I am optimistic Congress will update ECPA and hope that Attorney General Holder will assure the American people their privacy is being protected by the DOJ.”

Letter to Attorney General Holder here