[Congressional Record Volume 149, Number 137 (Wednesday, October 1, 2003)]
[Senate]
[Pages S12283-S12285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Craig, Mr. Durbin, Mr. Sununu, and 
        Mr. Reid):
  S. 1695. A bill to provide greater oversight over the USA PATRIOT 
Act; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today I am introducing with Senators Craig, 
Sununu, Durbin, and Reid, my distinguished colleagues from Idaho, New 
Hampshire, Illinois, and Nevada, the Patriot Oversight Restoration Act 
of 2003, a short bill whose singular but important purpose is to 
provide Congress the opportunity to take a hard look at the USA PATRIOT 
Act, which we passed in the anxious weeks following the devastating 
attacks of September 11, 2001. This bipartisan bill is moderate in 
scope; it would simply expand the sunset provision already enacted in 
the PATRIOT Act, to cover a number of additional provisions. The 
ensuing debate, however, should be considerable. My hope is that, 
before the sunset expires in December 2005, Congress will methodically 
revisit PATRIOT, with an eye toward achieving a suitable balance 
between the need to address the threat of terrorism and the need to 
protect our constitutional freedoms--and with the lessons of the past 
few years to guide us.
  We recently marked the second anniversary of the September 11 
attacks. As we reflect on that terrible day, and honor those who were 
lost, I strongly believe we should take stock of where we stand in our 
fight against terrorism. In the aftermath of the attacks, Congress and 
the administration did forge a constructive partnership to write the 
USA PATRIOT Act, which was meant to help our law enforcement and 
intelligence communities prevent future attacks from occurring. The 
PATRIOT Act represented our best efforts, under difficult 
circumstances, to balance the rights and liberties of the American 
people with the very urgent need to confront a threat to our Nation.
  Even in balancing this tension, we granted the executive branch an 
unprecedented, vast new array of powers. We did so because we believed 
the administration's claim that it needed these powers to protect us, 
and because we trusted the administration's promise that it would use 
these powers appropriately. I noted at the time that PATRIOT was not 
the bill that I, or any of the sponsors, would have written if 
compromise were unnecessary. But I believed in the bill's purpose, and 
I gave it my vote and support. I worked hard to add checks and balances 
to many of its provisions, and did so.
  Unfortunately, like many Members who supported the act--and like many 
Americans nationwide--I have come to feel disappointed. Since we passed 
the PATRIOT Act in October 2001, it has grown increasingly apparent 
that the trust and cooperation Congress provided to the executive 
branch has proved to be a one-way street. In the quarter-century that I 
have served in the Senate, no administration has been more secretive, 
more resistant to congressional oversight, and more disposed to acting 
unilaterally, without the approval of the American people or their 
democratically elected representatives. Despite the administration's 
unprecedented public relations campaign to promote the PATRIOT Act--
including a 16-State, 18-city tour by the Attorney General himself--the 
administration has yet to show that it is using its PATRIOT powers 
wisely. Instead, it has been secretly drafting a sequel to PATRIOT that 
would grant it even more far-reaching powers.
  I would never oppose an open discussion of any legislative tool that 
would help in the fight against terrorism. But for such a debate to be 
fruitful, we need to know more about the tools that are already 
available, including those created by the PATRIOT Act. Which are 
working, and how well? Which are not working, and why? Which, if any, 
struck the wrong balance, threatening the civil liberties of our 
citizens while doing little or nothing to keep our Nation secure?
  Immediately after the PATRIOT Act passed, the administration draped a 
cloak of secrecy around its use. When lawmakers and citizens have 
attempted to start a dialogue on PATRIOT-related issues, the response 
has been to ignore, insult or derisively dismiss them.
  Attorney General Ashcroft has repeatedly declined to appear before 
the Judiciary Committee to answer questions, and his Department is 
painfully slow to respond to written requests for information. To quote 
my friend Senator Grassley, ``getting information from the Justice 
Department under Ashcroft is like pulling teeth.'' By ignoring 
oversight requests until answers are moot or outdated, and responding 
in only vague and conclusory fashion, if at all, the Justice Department 
frustrates our constitutional system of checks and balances, and sows 
the sort of public distrust that now accompanies the PATRIOT Act.
  Just recently, in July, the Department dumped on committee members 
literally hundreds of pages of answers to questions that had been 
submitted to Attorney General Ashcroft and other senior Department 
officials following their testimony before the committee more than a 
year earlier. To give just one example of what a travesty it is when 
oversight questions remain unanswered for a year or more, the 
Department's responses dated July 17, 2003, devoted fully 15 pages to 
answering questions about Operation TIPS--an ill-conceived program that 
Congress had already terminated more than 8 months earlier.
  Is the Department incapable of responding to congressional inquiries 
in a timely fashion? Is it deliberately stonewalling? Or does it simply 
believe that oversight is a game that it need not play?
  Even more troubling, high-level administration officials have rashly 
suggested that anyone who dares to voice their concerns as unpatriotic, 
anti-American and pro-terrorist. In one of his rare appearances before 
the Senate Judiciary Committee, Attorney General Ashcroft charged that 
``fear mongers''--those who were raising concern about the loss of 
civil liberties--were only aiding the terrorists. More recently, a 
Justice Department official dismissed the many local government 
resolutions condemning the PATRIOT Act by saying ``half are either in 
cities in Vermont, very small population, or in college towns in 
California. It's in a lot of the usual enclaves where you might see 
nuclear free zones, or they

[[Page S12284]]

probably passed resolutions against the war in Iraq.''
  It is unfortunate that the Justice Department felt it appropriate to 
ridicule these grass-roots efforts to participate in an important 
national dialogue. The opportunity to engage in public discourse is one 
of the hallmark benefits of being an American, and I am proud that 
Vermont towns are among those dedicated to thinking about and acting on 
these important issues. But more importantly, the concerns expressed in 
my home State are being echoed by Americans nationwide. To date, anti-
PATRIOT resolutions have been passed by 178 communities in 32 States 
including Idaho, New Hampshire, and Illinois. These communities 
represent millions upon millions of Americans, not just a few free-
spirited Vermonters, as the Justice Department has insinuated.
  Concerns about the administration's antiterror tactics are also 
shared by Members on both sides of aisle, many of whom supported the 
PATRIOT Act as well as the war in Iraq, but who now know that the 
administration has been less than forthright about what it has been 
doing in the name of the American people. In July, the House voted to 
nullify section 213 of the PATRIOT Act, which allows law enforcement to 
ask a court to delay notice of a search warrant where it could have 
certain adverse results. And several bills have been introduced in both 
Houses to roll back another PATRIOT Act provision, section 215, which 
gives federal agents new power to obtain records from libraries and 
bookstores. Remarkably, in response, the Justice Department then 
declassified information summarily reflecting that it has never used 
the Section 215 powers--despite expressing urgent ``need'' during pre-
PATRIOT Act debate. And almost simultaneous to this announcement, the 
President urged support for an alternative record gathering power when 
Section 215 is still on the books. One has to question the 
inconsistencies in these two positions and whether Congress should 
blindly confer data gathering powers on an administration that does not 
provide a hint of factual support for such requests. There is overall a 
growing sense in the nation that Congress moved too fast in enacting 
the PATRIOT Act, and that the Justice Department moved too slowly in 
explaining its use of this sweeping legislation.
  When we passed the PATRIOT Act in October 2001, I noted that Congress 
needed to exercise careful oversight of how the Justice Department, the 
FBI and other executive branch agencies used the newly expanded powers 
that the act provided. The need for oversight and accountability is the 
reason that former House Majority Leader Dick Armey and I insisted on a 
sunset provision for several key provisions in PATRIOT--provisions that 
blurred the lines between criminal investigation and intelligence 
gathering. We succeeded, but only in part; several PATRIOT provisions 
that should have been subject to the sunset--including a few that were 
sunset or even cut in the version of the bill reported by the House 
Judiciary Committee--were omitted from the sunset. As enacted, the 
sunset applies only to certain enhanced surveillance authorities in 
title II of the act.
  The PATRIOT Oversight Restoration Act would extend PATRIOT's sunset 
provision to other enhanced surveillance provisions in title II of the 
act. These include subsections (a) and (c) of section 203, which 
authorize the disclosure of grand jury information to foreign 
enforcement, intelligence and immigration officials; sections 210 and 
211, which broaden the types of information that law enforcement may 
obtain, upon request, from electronic communication service providers 
and cable service operators; section 213, which authorizes so-called 
``sneak and peak''--delayed notification--search warrants; sections 216 
and 222, which significantly expand when, where, and how law 
enforcement can obtain a pen register or trap and trace order; and 
section 219, which authorizes judges to sign search warrants for 
properties located outside their districts.
  In addition to these title II provisions, the PATRIOT Oversight 
Restoration Act would also extend the sunset to a handful of provisions 
in titles IV, V, VIII and X of the PATRIOT Act. These provisions 
include sections 411 and 1006, which expand the Government's authority 
to declare certain persons inadmissible to the United States; section 
412, which grants the Attorney General authority to ``certify'' that an 
alien is engaged in activity that endangers the national security, and 
to take such an alien into custody; section 505, which gives law 
enforcement greater authority to access telephone, bank, and credit 
records through the issuance of so-called ``National Security 
Letters,'' even if no criminal investigation is pending and without 
court review; sections 507 and 508, which remove certain privacy 
protections for educational records and surveys--called ``obstacles'' 
to investigating terrorism in the PATRIOT Act; section 802, which 
defines ``domestic terrorism'' in a way that could be read to include 
political protesters engaged in civil disobedience; section 806, which 
uses the aforementioned definition of ``domestic terrorism'' to expand 
the government's civil forfeiture authority; and section 1003, which 
references another section of PATRIOT that is already covered by the 
sunset.
  With the PATRIOT Act, Congress provided government investigators with 
a virtual smorgasbord of new powers from which to choose. Is the 
Government gorging itself on the secretive powers allowed for ``foreign 
intelligence'' gathering, with their less onerous procedural 
requirements, rather than relying on bedrock criminal investigatory 
techniques that are subject to more rigorous review by the Federal 
courts? Have we provided too many choices and too much power to a 
limited few? These are questions that require answers before the more 
far-reaching provisions of PATRIOT are etched into stone.
  The events of September 11, 2001, resound in our hearts and in our 
memories. We owe it to the American people to be circumspect in the 
powers and authorities we grant, even in the name of national security. 
Our country was attacked on September 11 because of the democratic 
principles that this country stands for and that we love. It would be a 
cruel twist of irony to abandon those principles in the guise of a law 
named ``PATRIOT'' that might prove to be anything but a defender or 
protector of those cherished rights and freedoms.
  The PATRIOT Oversight Restoration Act offers a cautious and sensible 
solution to evolving fears about the PATRIOT Act. It will allow 
Congress to re-examine some of the important legal issues that abruptly 
confronted us in the weeks following September 11, and to re-assess our 
efforts with the benefit of hindsight and the luxury of time.
  Mr. President, I ask unanimous consent that the text of the bill and 
an analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             The PATRIOT Oversight Restoration Act of 2003

       Extends the current sunset provision in section 224 of the 
     USA PATRIOT Act (Pub. L. 107-56) to the following additional 
     sections of that law.:
       203(a) and (c), which authorize the disclosure of grand 
     jury information to foreign enforcement, intelligence and 
     immigration officials;
       210 and 211, which broaden the types of information that 
     law enforcement may obtain, upon request, from electronic 
     communication service providers and cable service operators;
       213, which authorizes so-called ``sneak and peak'' (delayed 
     notification) search warrants;
       216 and 222, which expand when, where, and how law 
     enforcement can obtain a pen register or trap and trace 
     order;
       219, which authorizes judges to sign search warrants for 
     properties located outside their districts;
       358, which establishes greater reporting requirements by 
     financial institutions for bank records and removes privacy 
     protections under the law for the same records;
       411 and 1006, which expand the government's authority to 
     declare certain persons inadmissible to the United States;
       412, which grants the Attorney General authority to 
     ``certify'' that an alien is engaged in activity that 
     endangers the national security, and to take such an alien 
     into custody;
       505, which gives law enforcement greater authority to 
     access telephone, bank, and credit records through the 
     issuance of so-called ``National Security Letters'';
       507 and 508, which remove certain privacy protections for 
     educational records and surveys;
       802, which defines ``domestic terrorism'' in a way that 
     could be read to include political protesters engaged in 
     civil disobedience.
       806, which uses the aforementioned definition of ``domestic 
     terrorism'' to expand the government's civil forfeiture 
     authority; and

[[Page S12285]]

       1003, which references another section of PATRIOT (section 
     217, ``Interception of computer trespasser communications'') 
     that is already covered by the sunset.
       Clarifies that after these provisions sunset on December 
     31, 2005, the law shall revert to what it was before the USA 
     PATRIOT Act was enacted.

                                S. 1695

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``PATRIOT Oversight 
     Restoration Act of 2003''.

     SEC. 2. EXTENSION AND CLARIFICATION OF PATRIOT SUNSET 
                   PROVISION.

       The USA PATRIOT Act (Public Law 107-56) is amended by--
       (1) striking section 224;
       (2) adding at the end of title X the following:

     ``SEC. 1017. SUNSET.

       ``(a) In General.--Except as provided in subsection (b), 
     the following sections of this Act and any amendments made by 
     such sections shall cease to have effect on December 31, 
     2005, and any provision of law amended or modified by such 
     sections shall take effect January 1, 2006, as in effect on 
     the day before the effective date of this Act:
       ``(1) In title II, all sections other than sections 201, 
     202, 204, 205, 208, and 221, and the first sentence of 
     section 222.
       ``(2) In title III, section 358.
       ``(3) In title IV, sections 411 and 412.
       ``(4) In title V, sections 505, 507, and 508.
       ``(5) In title VIII, sections 802 and 806.
       ``(6) In this title, sections 1003 and 1006.
       ``(b) Exception.--With respect to any particular foreign 
     intelligence investigation that began before the date on 
     which the provisions referred to in subsection (a) cease to 
     have effect, or with respect to any particular offense or 
     potential offense that began or occurred before the date on 
     which such provisions cease to have effect, such provisions 
     shall continue in effect.''; and
       (3) in the table of contents for such Act, by--
       (A) striking the item for section 224 and inserting the 
     following:

``Sec. 224. [Stricken see section 1017].'';

     and
       (B) inserting after the item for section 1016 the 
     following:

``Sec. 1017. Sunset.''.

  Mr. CRAIG. Mr. President, I am pleased to join the distinguished 
Senator from Vermont, Senator Leahy, and our other colleagues in 
introducing the PATRIOT Oversight Restoration Act of 2003.
  I am one of those who voted in favor of the USA PATRIOT Act to 
respond to the unprecedented, tragic attacks of September 11, 2001. 
However, even at the time of that vote, I raised my reservations about 
the new authorities being granted under the act, and pledged that there 
would be aggressive oversight by the legislative branch to make sure 
PATRIOTS implementation did not compromise civil liberties.
  Since that time, this lengthy and complex law has been subjected to 
considerable dissection and discussion both inside and outside of 
Congress, and concerns have been raised about many of its provisions. 
The low boil of discontent around the Nation exploded in the other 
Chamber some weeks ago with a strong vote to prohibit the use of 
appropriated funds for requesting delayed notice of a search warrant 
under the act.
  To its credit, the Bush administration has lately worked to address 
criticism of the law and demonstrate there have been no abuses by 
Federal law enforcement. I greatly appreciate those efforts and believe 
it is vitally important to continue that dialog with the Congress and 
the American people.
  At the same time, in light of the serious concerns that have been 
raised, I think it is appropriate for us to add some triggers to the 
law that will force Congress to review and affirmatively renew these 
authorities. That is what the PATRIOT Oversight Restoration Act would 
accomplish, by sunsetting additional provisions that are not currently 
set to expire. I do not think this will create a burden for law 
enforcement; on the contrary, if these authorities are indeed critical 
to the protection of our Nation, it should not be difficult to convince 
Congress to renew them. Furthermore, the knowledge that such a case 
must be made at a time certain in the future will serve as an 
additional immediate check against potential abuses.
  The security of our Nation is the first responsibility of the Federal 
Government. Our bill will ensure that responsibility is carried out 
thoughtfully and in our country's great tradition of balance and 
restraint in the enforcement of our laws. I urge all our colleagues to 
join us in supporting the PATRIOT Oversight Restoration Act.
                                 ______