Congressional Record, Volume 149 Issue 149 (Wednesday, October 22, 2003)

[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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