[Congressional Record Volume 149, Number 149 (Wednesday, October 22, 2003)]
[Senate]
[Pages S12990-S12992]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          THE USA PATRIOT ACT

  Mr. FEINGOLD. October 26 will mark the second anniversary of the USA 
PATRIOT Act. I wish to speak today about the continuing and growing 
controversy surrounding that law, which was passed just 6 weeks after 
the September 11 terrorist attack.
  I was the only Senator to vote against the PATRIOT Act. As I said 
during the debate in the fall of 2001, the act contained many 
provisions that were necessary and appropriate to help protect our 
Nation against terrorism. I still believe that. But I also argue that 
the PATRIOT Act went too far; that it threatened our citizens' 
constitutional rights and liberties. That is why I could not support it 
and why I insisted on offering amendments to the bill on the floor.
  Today, 2 years later, I still believe that as well. An increasing 
number of Americans have agreed and have expressed their concerns that 
certain provisions of the PATRIOT Act threaten the rights and liberties 
guaranteed by our Constitution for over 200 years. The chorus of voices 
of doubt has grown so loud that the Bush administration has responded 
but not, I am sorry to say, by addressing these concerns in a 
constructive and open way. Rather, the administration has initiated 
what seems to be a public relations campaign in recent weeks to simply 
defend the PATRIOT Act in its entirety.
  The Attorney General has gone on the road and on the Internet to 
extol the virtues of the law. Speaking before hand-picked audiences of 
law enforcement personnel, he has ridiculed and dismissed those who 
have raised concerns about the law. A few weeks ago he denounced ``the 
charges of the hysterics'' as ``castles in the air, built on 
misrepresentation, supported by unfounded fear, held aloft by 
hysteria.''
  I think these words are unfortunate, and in its zeal to defend the 
act the administration appears unwilling to even acknowledge the 
legitimate concerns of many Americans; and it objects to commonsense 
proposals to protect privacy and civil liberties that would not in any 
way undermine the fight against terrorism--proposals such as my bill, 
the Library, Bookseller, and Personal Records Privacy Act, and Senator 
Craig's bill, the SAFE Act, which I also strongly support, which would 
protect the constitutional rights of innocent citizens, while still 
allowing the FBI to do its job to protect our Nation from another 
terrorist attack.
  As Members of Congress, we have taken a solemn oath to uphold the 
Constitution of the United States. The President and the executive 
branch officials, of course, take this same oath. The burden is on the 
administration, which sought the powers included in the PATRIOT Act and 
which now seeks even more powers, to show that the current law and 
proposed new laws are consistent with the Constitution.
  Let me take a moment to remind my colleagues how a commitment to 
individual rights became part of the founding principles of our Nation 
and enshrined as the Bill of Rights.
  In 1787, in the halls of the State House of Pennsylvania in 
Philadelphia, GEN George Washington, who led our Nation to victory 
during the Revolution, convened the Constitutional Convention. A number 
of great political figures were delegates to that convention. Joining 
Washington were other distinguished Americans such as James Madison, 
Benjamin Franklin, Alexander Hamilton, and George Mason. Mason 
participated in the Convention, but he was concerned that the 
deliberations would result in a Constitution creating a central 
government with too much power over the States and individuals.

  Mason, a patriotic American, who loved his newly found freedom from 
British rule, had reservations when he made the trip to Philadelphia. 
Prior to the Convention, he had written a bill of rights for the State 
Constitution of Virginia. He urged delegates to the Convention to 
include a bill of rights also in the national Constitution.
  But a majority of delegates initially disagreed with Mason. When the 
draft of the Constitution was released, it failed to contain a bill of 
rights or any other explicit protection for the rights of individuals. 
Mason was bitterly disappointed.
  Mason was concerned that, without any explicit protection for 
individual liberties, the Constitution would open the doors to tyranny 
by a central government. Why? Because our experience with British rule, 
in which the colonial power was able to infringe on individual rights, 
was still very much on his mind. So after the Constitutional Convention 
adjourned, Mason continued to push for a bill of rights.
  During the next 2 years, as the Constitution made its way to the 
States for consideration and ratification, the American people came to 
agree with Mason, and he prevailed.
  Thomas Jefferson wrote to Madison that a bill of rights was ``what 
the people are entitled to against every government on earth.''
  Another statesman, Richard Henry Lee, who was one of the signers of 
the Declaration of Independence, said provisions were needed to protect 
``those essential rights of mankind without which liberty cannot 
exist.''
  Madison, who was initially opposed to including a bill of rights, was 
persuaded. An explicit protection for the rights of people or a bill of 
rights was needed in our Nation's governing document.
  So, Mr. President, on September 25, 1789--almost exactly 214 years 
ago--the First Congress of the United States proposed 12 amendments to 
the Constitution. Ten of these amendments were ratified 2 years later 
by the legislatures of at least three-fourths of the States. The 
remaining two amendments relating to compensation for Members of 
Congress and the number of constituents per Representative were not 
ratified at that time.
  The first 10 amendments to the Constitution, of course, are what 
Americans now know as the Bill of Rights. The first amendment 
guarantees freedom of speech, freedom of religion, and freedom of 
association.
  The second amendment guarantees the right to bear arms.
  The fourth amendment protects against unreasonable search and 
seizures.
  The fifth amendment ensures that no person shall be deprived of life, 
liberty, or property without due process of law.
  The sixth amendment guarantees a right to counsel and a right to 
trial by jury to those charged with crimes.
  During the debate on our Constitution, our Nation was at a critical 
juncture: Do we follow a path toward a highly centralized government 
with the potential for tyranny or do we follow a path toward a 
government with checks and balances, respect for States in a Federal 
system, and protections of individual rights and liberties?
  The decisions made in the first days of the Republic have stood the 
test of time. They, of course, created the greatest democracy on Earth 
and a governmental structure that is most protective of individual 
freedom and liberty in history.
  Today we stand at another critical crossroads. As our Nation faces 
new terrorist threats, we must respond to those threats without 
compromising the civil liberties that are the bedrock of our country. 
We must balance the legitimate needs of law enforcement against the 
privacy and freedom of all Americans, and that is not an easy task.
  One thing I know, the solution is not simply to grant the Federal 
Government more and more power to conduct surveillance, eavesdrop, and 
collect information on law-abiding Americans.
  The debate about the PATRIOT Act echoes the debate over two centuries 
ago in the halls of the statehouse in Philadelphia. Today, as then, we 
must take from our experience as a nation. We must remember the 
critical role the Constitution and, in particular, the Bill of Rights, 
has had in guiding our country through national crises, war, and armed 
conflicts at home and abroad, including the War of 1812, the Civil War, 
the two World Wars, and the cold war.
  The Constitution has survived and flourished throughout our history, 
and respect for individual freedom and privacy has steadily advanced.
  In the immediate aftermath of the September 11, 2001, terrorist 
attacks, there was, understandably, a great desire to give the 
administration the tools it said it needed to fight terrorism and 
prevent another terrorist

[[Page S12991]]

attack. But with time to study and reflect after enactment of the 
PATRIOT Act 2 years ago, many Americans have now paused and come to see 
a very real potential for abuse of power and infringement of privacy 
and civil liberties unleashed by this law.
  There is strong and growing bipartisan support for changes to the act 
to protect our rights and liberties. I am confident that this right-
left and moderate coalition of support will continue to grow and 
eventually occupy the center as more and more Americans learn what the 
law means.

  The coalition includes Americans for Tax Reform, the American 
Conservative Union, and the Free Congress Foundation, as well as the 
ACLU and the Open Society Policy Center.
  At the State and local level, 3 States and over 180 cities and 
counties have enacted provisions and resolutions expressing concern 
with the PATRIOT Act. These States and communities represent over 25 
million residents, and these localities are not just left-leaning 
college towns, such as Madison and Berkeley, but also right-leaning, 
libertarian regions of the country such as Flagstaff, AZ, Boise, ID, 
and the State of Alaska.
  Here in Congress several legislative proposals have now been 
introduced proposing changes to the PATRIOT Act to protect privacy and 
civil liberties. During its consideration of the Commerce-State-Justice 
appropriations legislation, the House adopted an amendment by 
Representative Otter to restrict the FBI's use of the ``sneak and 
peak'' power granted by the PATRIOT Act. The Otter amendment received 
overwhelming support, including 113 votes from Republican Members of 
the House.
  In the Senate, Senator Murkowski of Alaska and Senator Wyden of 
Oregon have introduced a bill, S. 1552, proposing to modify a number of 
the provisions of the PATRIOT Act. As I mentioned earlier, I have 
introduced the Library, Bookseller, and Personal Records Privacy Act, 
S. 1507, and now there is the SAFE Act, S. 1709, which I also mentioned 
earlier. I am pleased to join my colleagues Senators Craig, Durbin, 
Crapo, Sununu, Wyden, and Bingaman in supporting this bill.
  The SAFE Act does not repeal the PATRIOT Act. It simply proposes 
reasonable modifications to four particularly troubling PATRIOT Act 
provisions. These modifications will help to protect civil liberties 
and privacy by strengthening the role of judges in approving certain 
kinds of search and surveillance authority expanded by the PATRIOT Act.
  Specifically, the SAFE Act would strengthen the role of the courts in 
approving delayed notice searches, requests for access to library, 
medical, and other records containing sensitive personal information, 
and roving wiretaps in FISA cases.
  These are the issues I first raised in the fall of 2001 as the main 
reasons why I believe the PATRIOT Act was flawed and threatened 
fundamental constitutional rights and protections. For me and those few 
of my colleagues who supported my business records and roving wiretap 
amendments to the PATRIOT Act, it sure was a lonely feeling in October 
2001. I must say, I did not imagine at that time that reasonable minds 
would begin to prevail so soon. Now 2 years later, we have a strong 
bipartisan effort to change these provisions, and I am pleased to see 
that. I look forward to working with Senator Craig and my other 
colleagues on both sides of the aisle to get the bill passed.
  I am still very troubled by the administration's response to 
legislative efforts, such as those I just mentioned, and to the 
public's outcry to repeal or modify the PATRIOT Act. The administration 
has launched an effort to defend the PATRIOT Act, but its defense only 
tells the American people half the story at best. Its PR campaign 
eagerly describes the new powers the PATRIOT Act gives to law 
enforcement, but it doesn't say anything about what the law potentially 
takes away from the American people: our liberty and our privacy.

  Perhaps most disturbing, the administration's campaign fails to 
seriously address section 215, which I have long seen as the act's most 
troubling provision. Both my bill and the Craig bill contain the same 
proposal to modify this provision. Section 215 allows the FBI access to 
the private details of the lives of law-abiding Americans--which books 
we have checked out from the library, what our medical records reveal, 
and what charges we have made on our credit cards. Americans reasonably 
expect the details of their private lives, from what they read to what 
drugs they have been prescribed, to remain just that--private. The 
PATRIOT Act undermines that expectation.
  Under section 215, all the FBI has to do is assert that the records 
are ``sought for'' an international terrorism or foreign intelligence 
investigation. As long as the FBI makes such an assertion--and it is 
just an assertion--the secret foreign intelligence court is required to 
issue an order allowing access to those records. The courts cannot 
review the merits of the subpoena request.
  Both my bill and the Craig bill would simply require the FBI to set 
forth specific facts showing that the records sought relate to a 
suspected terrorist or spy. Thus, the Government could not ask, say, 
Amazon.com or e-Bay to turn over the records of law-abiding customers. 
It could, however, obtain records of those customers who are actually 
suspected terrorists. My bill would allow the FBI to follow up on 
legitimate leads by also respecting the privacy and civil liberties of 
law-abiding Americans.
  The administration has recently asserted that the criticism of 
section 215 is baseless because this section has not yet been used 
since it was enacted. The administration says that librarians concerned 
about access to Americans' reading records are hysterics and have been 
duped by civil rights advocates and Members of Congress.
  I am disappointed that the administration would use such rhetoric. No 
one has been duped, and the people concerned about their privacy are 
not in hysterics. They are simply worried, as I am, about the 
Government possessing a power that has the potential to intrude on 
their civil liberties, particularly since the statute itself prohibits 
a library, bookseller, or anyone else who has been served a subpoena 
from making that information public.
  What I said before the PATRIOT Act was passed, and continue to 
maintain now, is that section 215 presents the potential for abuse.
  I will say it again, because I cannot emphasize this enough, section 
215 presents the potential for abuse. Regardless of whether the 
provision has not yet been used, that potential still exists, and the 
public has a reason to be concerned. No amount of ridicule or spin can 
change that.

  The recent disclosure that section 215 has never been used does not 
address the concern that it could be used in a way that would violate 
the privacy of innocent Americans. But it does raise another question: 
If the section has never been used in the 2 years since the bill was 
passed, the 2 years immediately following the September 11 attacks, 
when concern over terrorism has been at its peak, including numerous 
periods of orange alert status, then whey is this provision even on the 
books? Or at the least, what possible objection could there be to 
modifying it so that the potential for abuse is eliminated?
  Both my bill and the Craig bill would protect the rights of law-
abiding citizens by limiting the FBI's access only to information that 
pertains to suspected terrorists or spies. Our legislation recognizes 
the legitimate uses of section 215 and would not interfere with the use 
of the provision to investigate and prevent terrorism.
  I urge the administration to open an honest dialogue with Congress 
and the American people to address the PATRIOT Act's specific problems 
instead of continuing to try to sell it. We do not need a government 
that forces its authority on the people and rejects and ridicules 
legitimate, heartfelt, and principled criticism of its actions and its 
laws. That is what our Founding Fathers strived to ensure would never 
happen again. The Federal Government should be responsive and 
accountable to the people. But most importantly, the Federal Government 
should respect and uphold the Constitution.
  Unfortunately, the administration has not only failed to engage in an 
honest dialogue about the PATRIOT Act, but it now proposes that 
Congress grant to it even more power. The American people have 
expressed very legitimate and sincerely-held concerns

[[Page S12992]]

about the PATRIOT Act. The administration should answer those concerns 
honestly and forthrightly before seeking more power.
  The administration has announced its support for three legislative 
proposals to expand executive branch power and diminish the role of 
judges, an essential part of our Nation's system of checks and 
balances. One proposal grants the Attorney General significant power to 
compel people to testify or the production of documents, all without 
prior court approval. A second proposal broadens the presumption of 
pretrial detention to cases that may not even involve terrorism. 
Finally, the third proposal expands the Federal death penalty.

  Criticism of the PATRIOT Act appears to have had the effect of 
influencing the administration's strategy to secure this new power, but 
not the substance of its effort. Rather than proposing a single bill 
with various provisions to expand the PATRIOT Act, the administration 
instead appears to have given its blessing to many little ``PATRIOT 
IIs.''
  The administration is apparently reluctant to allow these proposals 
to be linked to the PATRIOT Act. In fact, the Justice Department has 
even tried to suggest that they are unrelated. No one is fooled, 
however, least of all the American people. The fact is that these 
proposals did appear in the draft ``Patriot II'' leaked earlier this 
year and entitled the Domestic Security Enhancement Act.
  ``Patriot II,'' whether contained in one bill or a series of bills, 
is the wrong response at the wrong time. An increasing number of 
Americans want to know exactly how this administration is using the 
powers it already has and want the PATRIOT Act to be amended to protect 
privacy and civil liberties.
  The burden is on the administration to show Congress and the American 
people why current law is inadequate, why it needs even more power, and 
how the powers it already has and the new powers it seeks are 
consistent with the Constitution and Bill of Rights.
  That would be the patriotic thing to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Would the Chair announce, under the additional time we have 
until 11:30, how much time the minority has remaining?
  The PRESIDING OFFICER. The minority has 7 minutes 17 seconds 
remaining.
  Mr. REID. How about if we add in the time for the second hour? Is it 
32 minutes or something like that?
  The PRESIDING OFFICER. After this, there will be 50 minutes equally 
divided.
  Mr. REID. So it would be about 32 minutes. I ask unanimous consent 
that during our time the Senator from Michigan, Ms. Stabenow, be 
recognized for 9 minutes; Senator Harkin for 9 minutes; Senator Corzine 
for 9 minutes; and Senator Bingaman for 4 minutes. That will basically 
use up all of our time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I ask unanimous consent that we alternate back and forth 
if, in fact, there are people from the majority; otherwise, it would be 
in the order that I have mentioned.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Michigan is recognized for 9 minutes.

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