Congressional Record, Volume 150 Issue 48 (Wednesday, April 7, 2004)

[Congressional Record Volume 150, Number 48 (Wednesday, April 7, 2004)]
[Senate]
[Pages S3898-S3914]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

SAFE ACT

Mr. DURBIN. Mr. President, I rise today to urge my colleagues to
cosponsor S. 1709, the Security and Freedom Ensured Act, the SAFE Act,
which Senator Larry Craig and I have introduced with several of our
colleagues from both sides of the aisle.
The SAFE Act is a narrowly tailored bill that would revise several
provisions of the USA PATRIOT Act. It would safeguard the rights of
innocent Americans without impeding law enforcement's ability to fight
terrorism. The SAFE Act is supported by a broad coalition of
organizations and individuals from across the political spectrum.
I challenge any of my colleagues to find the broad base of political
support for virtually any bill that we have found for the SAFE Act.
I voted for the PATRIOT Act. I believed then and I still believe that
the act made many reasonable and necessary changes in the law. However,
the PATRIOT Act contains several provisions that do not adequately
protect innocent Americans from unwarranted Government surveillance.
The FBI now has broad authority to obtain a ``John Doe'' roving wiretap
which does not identify the person or place being tapped. The FBI has
authority now to conduct sneak-and-peek searches and to seize personal
records.
The PATRIOT Act was passed at a critical moment in the history of the
United States. It was a moment of tragedy and fear. Now with more than
2 years of hindsight and experience, it is time to revisit this law.
I can recall--and I am sure all who followed this debate can
remember--how we felt after September 11. Just a few steps away from
this Chamber, I was meeting in a room with Senator Daschle and a group
of Senators and we saw on television the images which every American
has seared in their memory. Then someone suggested a bomb had gone off
at the Pentagon. We gathered by the windows and looked down this
beautiful Mall toward the Washington Monument and saw black smoke
billowing across the Potomac, unaware at that moment another airplane
had struck that building, killing many innocent Americans.

It was a time of great concern and great anxiety and great unity. The
administration came to us and said to the Congress, Give us the tools
to find the people responsible for this terrible American tragedy. Give
us what we need to protect Americans and to fight the war on terrorism.
In a rare showing of bipartisan support, Democrats and Republicans
came together and addressed some of the most difficult and complicated
questions about Government authority and

[[Page S3899]]

individual freedom we have had to address in our history. I am proud to
say in a short period of time there was a bipartisan consensus, a
consensus which tried to work out the best way to meet the requirements
of the administration and to make America safe.
Many of these provisions were worrisome. We were not certain whether
we had gone too far in giving the Government more authority and
Americans fewer freedoms than necessary. So we included in the PATRIOT
Act sunset provisions. Basically, what that means is that over some
period of time, a year or two, these provisions would expire and be
subject to renewal and reapproval by Congress. Of course, at that point
we would be forced to assess their impact.
Interestingly, since that day, from some quarters, the volume has
grown in support of basically eliminating the sunset provisions and
saying this will be permanent law and we will not revisit it. However,
many have looked at the PATRIOT Act, including Senator Craig and
myself, and feel there are four specific areas of the Act that should
be amended by our SAFE Act. Senator Craig, a Republican, and myself, as
a Democrat, reached across the partisan divide to work together on this
bill. It is quite an unusual political marriage. Senator John Sununu,
also a cosponsor, joked that when Senator Craig and Senator Durbin
introduce a bill together, it proves one thing: One of them must not
have read it.
Well, that is not true. We have both read the SAFE Act. Our
cooperation on this piece of legislation speaks volumes about the need
to make changes in the PATRIOT Act.
Some claim because we are at war, the American people want the
Government to keep them safe, no matter what. I think they are wrong.
The American people care very deeply about their freedoms. They are
watching Congress carefully and they are concerned that perhaps in some
areas we went too far in passing the PATRIOT Act. I have heard from a
lot of my constituents. 275 communities in 39 states have passed
resolutions expressing concern about the provisions of the PATRIOT Act.
These communities represent close to 50 million Americans. Almost one
out of every six Americans has, through their elected representatives
in their communities, expressed some concern about the provisions of
the PATRIOT Act.
Let me be very frank about the bill itself. The PATRIOT Act was over
130 pages long. It is very complicated. Most Americans have not read
every word of it. Many Americans who may not be able to explain the
exact details of the PATRIOT Act still are concerned it is restricting
their freedoms unnecessarily.
Some argue this means we should not take the American people so
seriously because they cannot cite specific sections of the bill. I
disagree. There is no reason to dismiss these public concerns. And this
is no excuse for inaction. The burden of proof is not on the American
people when the Government seeks to take away their rights and
liberties. The burden of proof is on the Government.
What is clear is the American people want us to strike a balance,
give the FBI and law enforcement and intelligence agencies the powers
they need to fight terrorism but also to protect American liberty. That
is what the SAFE Act would do.
An unusual thing has occurred with the introduction of this bill. I
have been on Capitol Hill for over two decades working in the House and
in the Senate. I have never seen this happen before. The Bush
administration announced with the introduction of the bill they would
veto it. The bill has not been considered before a committee. It has
not been subject to amendment in committee. It has not been debated in
committee. It has not come to the floor of the House or the Senate, nor
has it been subject to debate and amendment there. There is no final
work product, only the initial offering by Senator Craig and myself.
Based on that and that alone, the Bush administration has said they
are going to oppose this bill and they are going to veto this bill. I
have never seen anything quite like that.
The Justice Department argues our bill would eliminate some PATRIOT
Act powers and make it even more difficult to effectively fight
terrorism. Frankly, these objections do not hold water. The SAFE Act
neither repeals any provision of the PATRIOT Act nor amends pre-PATRIOT
Act law. In fact, the SAFE Act retains the expanded powers created by
the PATRIOT Act while placing important checks on these powers.
Senator Craig and I wrote a letter responding in detail to the
Justice Department's objections to the bill and their threat to veto
the bill, which has not even passed either the House or the Senate.
I ask unanimous consent that this letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Committee on the Judiciary,

Washington, DC, February 23, 2004.
Hon. Orrin G. Hatch,
Chairman, Senate Committee on the Judiciary, Hart Senate
Office Building, Washington, DC.
Dear Mr. Chairman: We write to request that you schedule a
hearing in the Judiciary Committee as soon as possible on S.
1709, the Security and Freedom Ensured (SAFE) Act, a
narrowly-tailored, bipartisan bill that would amend several
provisions of the USA PATRIOT Act (P.L. 107-56). We would
also like to take this opportunity to respond to concerns the
Justice Department has raised regarding the SAFE Act.
We voted for the PATRIOT Act and believe now, as we did
then, that the PATRIOT Act made many reasonable and necessary
changes in the law. However, the PATRIOT Act contains several
provisions that create unnecessary risks that the activities
of innocent Americans may be monitored without adequate
judicial oversight.
This concern is shared by a broad coalition of
organizations and individuals from across the political
spectrum. In fact, 257 communities in 38 states--representing
approximately 43.5 million people--have passed resolutions
opposing or expressing concern about the PATRIOT Act. Groups
as politically diverse as the ACLU and the American
Conservation Union have also endorsed changes in the law.
In his State of the Union address, the President called for
reauthorization of the PATRIOT Act. Given the bipartisan
concerns about the most controversial provisions of the law,
however, this will not happen unless these provisions are
revisited. Congress, in fact, made oversight of the PATRIOT
Act implicit by sunsetting over a dozen sections of the bill
at the time of its passage.
S. 1709, the SAFE Act, was drafted with this oversight in
mind. It was drafted to clarify and amend in a minor way the
PATRIOT Act's most troubling provisions so that whole or even
piecemeal repeal of the law would be unnecessary. It was
drafted to safeguard the liberties of law-abiding citizens
while preserving the law enforcement authorities essential to
a successful war on terror.
The Administration unfortunately has threatened to veto the
SAFE Act. The Justice Department argues that the SAFE Act
would ``eliminate'' some PATRIOT tools and ``make it even
more difficult to mount an effective anti-terror campaign
than it was before the PATRIOT Act was passed.''
We respectfully disagree with the Justice Department's
objections to our reasoned and measured effort to mend the
PATRIOT Act. The SAFE Act neither repeals any provision of
the PATRIOT Act, nor impedes law enforcement's ability to
investigate terrorism by amending pre-PATRIOT Act law.
Rather, the SAFE Act retains the expanded powers created by
the PATRIOT Act while restoring important checks and balances
on powers including roving wiretaps, ``sneak and peek''
warrants, compelled production of personal records, and
National Security Letters.

Roving Wiretaps

The SAFE Act would place reasonable checks on the use of
roving wiretaps for intelligence purposes. Normally, when the
government seeks a warrant authorizing a wiretap, its
application must specify both the target (the individual) and
the facilities (the telephone or computer) that will be
tapped. Roving wiretaps, which do not require the government
to specify the facilities to be tapped, are designed to allow
law enforcement to tract targets who evade surveillance by
frequently changing facilities. Before the PATRIOT Act,
roving wiretaps were only permitted for criminal, not
intelligence, investigations. The PATRIOT Act authorized the
FBI to use roving wiretaps for intelligence purposes for the
first time.
Using roving wiretaps for intelligence purposes is
important. Unfortunately, the PATRIOT Act did not include
sufficient checks to protect innocent Americans from
unwarranted government surveillance. Under the PATRIOT Act,
the FBI is not required to determine whether the target of
the wiretap is present at the place being wiretapped, as it
is for criminal wiretaps.
The Intelligence Authorization Act of 2002 made another
dramatic change in the law. The FBI is now permitted to
obtain a ``John Doe'' roving wiretap for intelligence
purposes, an authority not authorized in any other context. A
``John Doe'' roving wiretap does not specify the target of
the wiretap or

[[Page S3900]]

the place to be wiretapped. In other words, the FBI can
obtain a wiretap without saying whom they want to wiretap or
where they want to wiretap.
The Justice Department defends this authority by noting
that even if the target of the wiretap is not identified, a
description of the target is required. The law does not
require the description to include any specific level of
detail, however. It could be as broad as, for example,
``white man'' or ``Hispanic woman.'' Such a general
description does not adequately protect innocent Americans
from unwarranted government surveillance.
The SAFE Act would retain the PATRIOT Act's authorization
of roving wiretaps for intelligence purposes but impose
reasonable limits on this authority. Law enforcement would
be required to ascertain the presence of the target before
beginning surveillance and identify either the target of
the wiretap or the place to be wiretapped. The FBI would
not be able to obtain ``John Doe'' roving wiretaps,
thereby ensuring that the government does not surveil
innocent Americans who are not the target of the wiretap.
The Justice Department argues that ``John Don'' roving
wiretaps are necessary because there may be circumstances
where the government knows a target's physical description
but not his identity. If the government is tracking a suspect
closely enough to utilize a wiretap, it is unlikely his or
her identity will be unknown to them. In this unusual
circumstance, the SAFE Act would permit the issuance of a
``John Doe'' wiretap which would not identify the target but
rather the facilities to be wiretapped. If the government
wished to obtain a roving wiretap, they could do so by
identifying the target. It is important to note that the
government is not required to identify the target by his or
her actual name. The government, for example, could identify
the target by an alias. This level of detail should be
required to make clear who is being targeted to prevent
innocent people with no relationship to the target from being
spied upon.

``sneak and peek'' searches

The SAFE Act would impose reasonable limits on the issuance
of delayed notification (or ``sneak and peek'') search
warrants. A sneak and peek warrant permits law enforcement to
conduct a search without notifying the target until sometime
after the search has occurred. The Justice Department argues
that sneak and peek warrants for physical evidence ``had been
available for decades before the PATRIOT Act was passed,''
but such warrants were never statutorily authorized before
the passage of the PATRIOT Act. Too, though some courts have
permitted sneak and peek warrants in limited circumstances,
the Supreme Court has never ruled on their constitutionality.
In codifying sneak and peek warrants, Section 213 of the
PATRIOT Act did not adopt limitations on this authority that
courts had recognized. For example, courts have required a
presumptive seven-day limit on the delay of notice. Section
213 requires notice of the search within ``a reasonable
period,'' which is not defined. According to the Justice
Department, this has resulted in delays of up to 90 days, and
of ``unspecified duration lasting until the indictment was
unsealed.''
Section 213 authorizes issuance of a sneak and peek warrant
where it finds that providing immediate notice of the warrant
would have an ``adverse result,'' as defined by 18 U.S.C.
Section 2705. Section 2705, which allows delayed notice for
searches of stored wire and electronic communications,
defines adverse result very broadly, including any
circumstances ``otherwise seriously jeopardizing an
investigation or unduly delaying a trial.'' This catch-all
provision could arguably apply in almost every case. A sneak
and peek search of a home involves a much greater degree of
intrusiveness than a seizure of wire or electronic
communications, so this broad standard for delaying notice is
inappropriate. Section 213 also does not limit delayed
notification warrants to terrorism investigations, and unlike
many surveillance-related PATRIOT Act provisions, does not
sunset.
Last year, an overwhelming majority in the House of
Representatives voted to repeal Section 213. The SAFE Act
would not go nearly this far. It would place modest limits on
the government's ability to obtain sneak and peek warrants,
while still permitting broad use of this authority.
The SAFE Act would still authorize a sneak and peek warrant
in a broad set of specific circumstances: where notice of the
warrant would endanger the life or physical safety of an
individual, result in flight from prosecution, or result in
the destruction of or tampering with the evidence sought
under the warrant. Importantly, it would eliminate the catch-
all authorization of sneak and peek authority in any
circumstances ``otherwise seriously jeopardizing an
investigation or unduly delaying a trial.'' It would require
notification of a covert search within seven days, but would
authorize unlimited additional seven-day delays so long as
any circumstance that would justify a delay of notice
continues to exist. According to the Justice Department,
``the most common period of delay'' under Section 213 is
seven days, so a seven-day limit with court-authorized
extensions is not overly onerous but would prevent abuse.
The Justice Department states that the SAFE Act imposes
restrictions on the issuance of sneak and peek warrants that
could tip off terrorists, and ``thus enable their associates
to go into hiding, flee, change their plans, or even
accelerate their plots.'' To the contrary, the SAFE Act would
authorize issuance of a sneak and peek warrant in all of
these circumstances. If notice of the warrant could lead
terrorists or their associates to hide or flee, a court could
delay notice to prevent flight from prosecution. If notice of
the warrant could lead terrorists or their associates to
change or accelerate their plots, a court could delay notice
to prevent the resulting danger to life or physical safety.
The Constitution protects the sanctity of our homes, and we
should only allow this sanctity to be breached in such
serious circumstances.

Compelled Production of Personal Records

The SAFE Act would place reasonable checks on the
government's authority to compel production of library and
other personal records. Section 215 of the PATRIOT Act
permits law enforcement to obtain such records without
individualized suspicion and with minimal judicial oversight.
Before the PATRIOT Act, FISA authorized the FBI to seek a
court order for the production of records from four types of
businesses: common carriers, public accommodations
facilities, physical storage facilities, and vehicle rental
facilities. In order to obtain such records, the FBI was
required to state specific and articulable facts showing
reason to believe that the person to whom the records relate
was a terrorist or a spy. If a court found that there were
such facts, it would issue the order.
Under FISA as modified by Section 215, the FBI is
authorized to compel production of ``any tangible things
(including books, records, papers, documents, and other
items)'' not just records, from any entity, not just the four
types of businesses previously covered. The FBI is only
required to certify that the records are ``sought for'' an
international terrorism or intelligence investigation, a
standard even lower than relevance. The FBI need not show
that the documents relate to a suspected terrorist or spy.
If the FBI makes the required certification, the court no
longer has the authority to examine the accuracy of the
certification or ask for more facts to support it; the
court ``shall'' issue the order. Defenders of Section 215
frequently assert that the issuance of an order for
records requires court approval, but this type of court
approval amounts to little more than a rubber stamp. The
PATRIOT Act gives the government too much power to seize
the personal records of innocent Americans who are not
suspected of involvement in terrorism or espionage.
The SAFE Act retains the PATRIOT Act's expansion of the
business records provision to cover ``any tangible things''
and any entity. It would reinstate the pre-PATRIOT Act
standard for compelling production of business records, which
requires individualized suspicion. The FBI would be required
to certify that there are specific and articulable facts
giving reason to believe that the person to whom the records
relate is a terrorist or a spy. A court would be required to
issue the order if it found that there are such facts. The
SAFE Act would thus prevent broad fishing expeditions which
waste scarce government resources, are unlikely to produce
useful information, and can infringe upon privacy rights.
The Justice Department argues that this standard is
inappropriate because it is higher than the relevance
standard under which federal grand juries can subpoena
records. This ignores some crucial distinctions. The
recipient of a grand jury subpoena can challenge the subpoena
in court and tell others, including those whose records are
sought, about the subpoena. In contrast, the recipient of a
Section 215 subpoena cannot challenge the subpoena in court
and is subject to a gag order. The scope of a federal grand
jury is limited to specific crimes, while an intelligence
investigation is not so limited.
Finally, it is very important to note that, in the more
than two years since the passage of the PATRIOT Act, Section
215 has never been used. If the authority has never been used
during this time of great national peril, it is difficult to
understand how imposing some reasonable checks on it could
cripple the war on terrorism. Indeed, the government offers
no examples, real or imagined, in which the SAFE Act's
revisions of Section 215 would hinder counterterrorism
efforts.

national security letters

The SAFE Act would impose reasonable limits on the issuance
of National Security Letters (NSLs). Section 505 of the
PATRIOT Act allows the FBI to use NSLs to obtain personal
records without individualized suspicion. An NSL is a
document signed by an FBI agent requiring disclosure of
financial, credit and other personal information and
requiring the recipient not to disclose the request to the
individual whose records are being sought. It does not
require judicial or grand jury approval.
Before the PATRIOT Act, the FBI could issue an NSL to
obtain records from a wire or electronic communication
service provider by certifying that it had reason to believe
that the person to whom the records relate is a terrorist or
a spy. The approval of FBI headquarters was required.
Section 505 of the PATRIOT allows the FBI to issue an NSL
simply by certifying that the records are ``sought for'' a
terrorism or intelligence investigation, regardless of
whether the target is a suspect. Headquarters approval is no
longer required. Unlike many other surveillance-related
PATRIOT Act provisions, the expanded NSL authority does not
sunset.

[[Page S3901]]

The SAFE Act would retain the PATRIOT Act's lower standard
for the issuance of NSLs and its delegation of issuing
authority to field offices. It would simply clarify that a
library is not a ``wire or communication service provider,''
which from the plain meaning of the words, it is not. The FBI
could still obtain information regarding e-mails or other
communications that took place at libraries by issuing an NSL
to the library's wire or communication service provider.
The Justice Department states that the SAFE Act would
``extend a greater degree of privacy to activities that occur
in a public place than to those taking place in the home.''
We disagree. The SAFE Act would simply ensure that the FBI
issues the NSL to the service provider, which is the
appropriate recipient, rather than a community library, which
is ill-equipped to respond to such a request.

expanding the sunset clause

The SAFE Act would expand the sunset clause of the PATRIOT
Act to ensure Congress has an opportunity to review
provisions of the bill that greatly expand the government's
authority to conduct surveillance on Americans. Many of the
PATRIOT Act's surveillance provisions sunset on December 31,
2005. The SAFE Act would sunset four additional surveillance
provisions: Sections 213, 216, 219, and 505.
We have already discussed Sections 213 (sneak and peek
warrants) and 505 (national security letters). Section 216
allows the use of surveillance devices known as pen registers
and trap and trace devices to gather transactional
information about electronic communications (e.g., e-mail) if
the government certifies the information likely to be
gathered is ``relevant'' to an ongoing criminal
investigation. The information the government gathers is
``not to include the contents'' of communications, but
content is not defined. Section 219 permits a federal judge
in any district in the country in which ``activities related
to terrorism may have occurred'' to issue a nationwide search
warrant in a terrorism investigation. The target of such a
search warrant has no ability to challenge the warrant in
their home district. The SAFE Act would simply give Congress
an opportunity to assess the effectiveness of these four
provisions before deciding whether or not to reauthorize
them.
The Justice Department argues that Congress should not
expand the sunset to these authorities because they will all
be needed by the FBI for ``the foreseeable future.'' Even if
this is true, it is no reason not to give Congress the chance
to review the usefulness of these powers. If they are needed
for the fight on terrorism, we will surely renew them.
Throughout American history, during times of war, civil
liberties have been restricted in the name of security. We
therefore have the responsibility to proceed cautiously.
During the Civil War, President Lincoln suspended habeas
corpus, and during World War II, President Roosevelt ordered
the detention of Japanese Americans in internment camps. We
must be vigilant in our defense of our freedoms. But we also
must ensure that law enforcement has sufficient authority to
combat the grave threat of terrorism. We must strike a
careful balance between the law enforcement power needed to
combat terrorism and the legal protections required to
safeguard American liberties. That is what the SAFE Act would
do.
While we are disappointed that the Administration has
expressed disagreement with the SAFE Act, we view this as an
opportunity for increased public discussion of one of the
most important issues of our day. Accordingly, we request
that you schedule a hearing on the SAFE Act as soon as
possible. Thank you for your time and consideration.
Sincerely,
Larry E. Craig,
U.S. Senator.
Richard J. Durbin
U.S. Senator.

Mr. DURBIN. Mr. President, let me cut through some of the rhetoric
and tell you what the SAFE Act does.
The SAFE Act would place reasonable checks on what are known as
roving wiretaps. Typically, when the Government seeks a warrant
authorizing a wiretap, its application must specify the individual and
the phone that will be tapped. A recommendation on roving wiretaps came
to us in the PATRIOT Act because of the obvious: There was a time and
place in America when people had one telephone at work, one telephone
at home, and if the Government sought to tap that telephone to find out
what was going on, it was pretty obvious which telephone lines needed
to be tapped. Now we live in a different world where people carry
around phones in their pockets. People may have several phones.
So the Government asked for additional authority to focus on those
who were engaged in telephone conversations on numerous different
telephone lines. Roving wiretaps do not require the Government to
specify the phone being tapped. They are designed to allow law
enforcement to track targets that evade surveillance by frequently
changing phones.
Before the PATRIOT Act, they were only permitted for criminal
investigations, not intelligence investigations. The PATRIOT Act
authorized the FBI to use roving wiretaps for intelligence purposes for
the first time. I supported this. I thought it was a reasonable
expansion of wiretap authority because it is important that
intelligence investigators have that authority.
Unfortunately, the PATRIOT Act did not include the same limits on
these powers that exist for criminal investigations. These limits would
have protected innocent Americans from unjustified surveillance. It is
a basic tenet of law that if you are going to tap a conversation, the
Government has to be specific enough so as to protect innocent people.
We should not allow the Government at any given time to impose a
wiretap on a phone that anybody might use. The Government should be
specific, protecting in the process the privacy of innocent people,
while clearly targeting those with a wiretap who could be guilty of a
crime or guilty of activities that are treasonous.
Under the PATRIOT Act, the FBI is not required to determine whether
the target of the wiretap is physically present at the location being
wiretapped before beginning the wiretap, as it is for criminal
wiretaps. The ascertainment requirement, as it is known, ensures
innocent Americans are not wiretapped unnecessarily, especially when
the FBI wiretaps a public telephone.
The FBI is now permitted to obtain a John Doe roving wiretap for
intelligence purposes, a sweeping authority never before authorized by
Congress. A John Doe roving wiretap does not specify the person or the
phone to be wiretapped. In other words, the FBI can obtain a wiretap
without telling a court whom they want to wiretap and where they want
to wiretap. This is a virtually limitless power.
The SAFE Act, which we have introduced, would continue to authorize
roving wiretaps for intelligence purposes but would impose reasonable
limits, the same limits that exist for criminal investigations. Law
enforcement would be required to determine whether the target of the
wiretap is physically present before beginning the wiretap. The FBI
would not be able to obtain ``John Doe'' roving wiretaps. These
protections would ensure that the Government does not wiretap innocent
Americans.

Secondly, the SAFE Act would impose reasonable limits on sneak-and-
peek searches. Sneak-and-peek searches are conducted secretly by the
FBI with no notice to the target until some time after the search.
You have all seen the scene on television--maybe you are familiar
with it from your community--where there is a knock on the door and a
law enforcement official says: I have a warrant to search your home.
Well, that is the usual course of events in criminal investigations. It
is much different when it comes to sneak-and-peek searches.
The Justice Department argues that warrants for sneak-and-peek
searches ``had been available for decades before the PATRIOT Act was
passed,'' but such warrants were never authorized by Congress before
the passage of the PATRIOT Act. Some courts permitted sneak-and-peek
warrants in limited circumstances, although the Supreme Court has never
ruled on their constitutionality.
In authorizing sneak-and-peek warrants, section 213 of the PATRIOT
Act did not include checks and limitations on the power of the
Government so as to protect innocent Americans. Courts have required
the FBI to notify the target of the search within 7 days of the search.
Section 213 of the PATRIOT Act, however, requires notice of the search
only within ``a reasonable period,'' which is not defined. According to
the Justice Department, this has resulted in delays of notice of up to
90 days, and of ``unspecified duration.''
Section 213 authorizes sneak-and-peek searches where a court finds
that providing immediate notice of the search would have an adverse
result. ``Adverse result'' is defined broadly. It includes
circumstances ``seriously jeopardizing an investigation or unduly
delaying a trial.'' This catch-all provision could arguably apply in
almost every case.
Unlike many other PATRIOT Act provisions that give new surveillance
powers to the FBI, the sneak-and-peek

[[Page S3902]]

authority does not sunset. It is permanent law.
According to a recent poll, 71 percent of Americans disapprove of the
current sneak-and-peek provision in the PATRIOT Act. Last year, an
overwhelming, bipartisan majority in the House of Representatives voted
to repeal this section of the PATRIOT Act. The SAFE Act that we
introduce would not go nearly that far. It would place reasonable
limits on the FBI's ability to conduct sneak-and-peek searches, while
still permitting broad use of this authority.
The SAFE Act would still authorize sneak-and-peek searches in a broad
set of specific circumstances. However, it would eliminate the catch-
all provision that allows sneak-and-peek searches in any circumstances.
The SAFE Act would require notification of a covert search within 7
days but would authorize a court to allow unlimited additional 7-day
delays upon application by the Government. According to the Justice
Department, ``the most common period of delay'' under section 213 is 7
days, so this limit that we establish is not unreasonable.
The SAFE Act would also sunset the sneak-and-peek authority, giving
Congress an opportunity to take a hard look at a provision in the law
that is so widely unpopular in the United States.
The third area has received a lot of attention, and it relates to the
compelled production of library and personal records.
The SAFE Act would place reasonable limits on the FBI's authority to
compel production of library and personal records. Before the PATRIOT
Act, the FBI was authorized to seek a court order for the production of
records from four types of businesses--common carriers, such as
airlines and trains and buses; public accommodations, such as hotels
and restaurants; storage facilities; and car rental companies. In order
to obtain records, the FBI was required to convince a court it had
reason to believe that the person to whom the records related was a
terrorist or a spy.
Under section 215 of the PATRIOT Act, the FBI can compel production
of ``any tangible things,'' not just records, from any entity, not just
the four types of businesses previously covered. The FBI, under the
PATRIOT Act, is only required to certify that the records are ``sought
for'' a terrorism or intelligence investigation, a standard even lower
than relevance. The FBI is not required to show that the documents
relate to a suspected terrorist or spy.

Now, those who defend section 215 frequently claim the FBI must
obtain court approval to compel production of records, but if you read
section 215, you will see that the type of court approval which is
authorized is a rubber stamp.
The PATRIOT Act gives the Government too much power to seize the
personal records of innocent Americans who are not suspected of
involvement in any terrorism or espionage. This could lead to broad
fishing expeditions which waste scarce Government resources, are
unlikely to produce useful information, and can infringe upon privacy
rights.
The SAFE Act would retain the PATRIOT Act's expansion of the records
provision to cover ``any tangible things,'' as I said earlier, and any
entity. But it would reinstate the pre-PATRIOT Act standard for
obtaining records, which requires individualized suspicion and
increased judicial oversight. The FBI would be required to convince a
court that it has reason to believe that the person to whom the records
relate is a terrorist or a spy. This would protect innocent Americans
and prevent fishing expeditions by the Government.
It is very important to note that in the more than 2 years since the
passage of the PATRIOT Act, section 215--compelling records, as I have
described--has never been used. If the authority has never been used
during this time of great national concern and peril, it is difficult
to understand how imposing some reasonable checks could harm the war on
terrorism.
The fourth and last section of the SAFE Act relates to national
security letters. The SAFE Act would impose reasonable limits on the
issuance of these letters. An NSL, as they are known, is a document
signed by an FBI agent requiring disclosure of financial, credit, or
other personal information. It can be issued to a wire or electronic
communication provider. The recipient of an NSL is subject to a gag
order and cannot disclose the request to the individual whose records
are being sought. An NSL does not require judicial or grand jury
approval.
Before the PATRIOT Act, the FBI could issue such a letter to obtain
records by certifying it had reason to believe that the person to whom
the records relate is a terrorist or spy. The approval of FBI
headquarters was required.
Section 505 of the PATRIOT Act allows the FBI to issue a national
security letter by certifying that the records are ``sought for'' a
terrorism or intelligence investigation, regardless of whether the
target is a suspect. FBI headquarters approval is no longer required.
Unlike many other surveillance-related PATRIOT Act provisions, this
expanded NSL authority does not sunset under the law of the PATRIOT
Act.
The SAFE Act would retain the PATRIOT Act's lower standard for the
issuance of NSLs and its delegation of issuing authority to FBI field
offices.
It would simply clarify that a library is not a ``wire or
communication service provider,'' which, from the plain meaning of the
words, it is not. The FBI could still obtain information regarding e-
mails and other communications originating from library computers by
issuing a national security letter to the library's wire or
communication service provider.
The SAFE Act would simply ensure that the FBI issues the national
security letter to the service provider, which is the appropriate
recipient, rather than a community library, which is not equipped to
respond to such a request.
We would also sunset this NSL authority, giving Congress another
opportunity to take a look at it.
We have the responsibility to give the Government the power it needs
to keep us safe, but at the same time we have a responsibility to the
Constitution, which we have all sworn to uphold and defend, to
zealously protect the personal freedoms and liberties of American
citizens.
Geoffrey Stone, a professor and former dean at the University of
Chicago Law School, made this observation:

In time of war . . . we respond too harshly in our
restriction of civil liberties, and then, later, regret our
behavior. It is, of course, much easier to look back on past
crises and find our predecessors wanting, than it is to make
wise judgments when we ourselves are in the eye of the storm.
But that challenge now falls to us.

We must meet this challenge head on. As we reflect on the course of
history, there has hardly been a time in the history of the Nation when
we faced great threats to our safety and security when the Government
did not overreach.
The greatest President, I think, who ever served us, Abraham Lincoln,
from my State of Illinois, during the course of the Civil War,
suspended the writ of habeas corpus, basically gathering into prison
suspects without any charges. It was clearly in violation of the
language of the Constitution. It was a power he assumed as Commander In
Chief, and many have questioned it in the years that have followed.
During World War I, when there was real concern about outside threats
to our country, we established the Alien and Sedition Acts, laws passed
by Congress and signed by the President which, on reflection, went too
far.

In World War II, we had the Japanese internment camps. We took
perfectly innocent Japanese Americans, simply because of their
ancestry, and put them in these settlement camps for lengthy periods of
time, even while the children would leave the camps to serve in the
Armed Forces.
During the cold war, a war that went on for decades and cost this
Nation billions of dollars and created great anxiety, the McCarthy
hearings and the questions of patriotism that were raised indicate that
again we had gone entirely too far. The list continues. Sadly, it
continues when we reflect on what we have done since September 11.
There is always a tension in our society between security and
freedom. Those who want more security often argue that the Government
needs more power and more authority, and individuals must give up those
freedoms. Many of us believe that in surrendering

[[Page S3903]]

our freedoms, we are surrendering our heritage to the terrorists. The
freedoms which were so carefully guarded and so zealously pursued by so
many generations, freedoms which we have won with the lives of
Americans in conflict time and time again, should be carefully guarded
as well.
I hope we will understand that the burden of proof is not on
individual Americans to come forward and prove to the Government they
have a right to their freedoms and liberties. When the Government seeks
to take away the freedom and liberty of an American citizen, it is the
burden of the Government to prove that is necessary.
With the SAFE Act, Senator Craig and I have taken four very specific
and discrete elements of the PATRIOT Act and we have said that by
changing these, we will still keep America safe, but we will prevent
intrusive Government activity into the privacy of individuals.
We can search the Constitution from the beginning to the end, through
every amendment, and never see the word ``privacy'' in it, but courts
have said repeatedly that that is what government should be all about--
protecting our privacy, only invading it in times when it is absolutely
necessary to protect our safety in our community or our security as a
Nation. The PATRIOT Act ended up being an allocation of power to the
Government that went far beyond what was necessary for the security of
our Nation and in fact invaded our rights and liberties.
We need to meet this challenge head on. It is possible to combat
terrorism and to protect our freedoms. We can be safe and free. The
SAFE Act demonstrates that. I urge my colleagues to join Senator Craig
and myself as cosponsors.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REED. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

IN MEMORY OF JUSTICE FLORENCE K. MURRAY

Mr. REED. Mr. President, on Sunday, March 28, 2004, Rhode Island, the
judicial community and the entire Nation lost a great pioneer who was a
superb jurist and a powerful inspiration. Retired Supreme Court
Associate Justice Florence Kerins Murray passed away after decades of
breaking new ground for women in the United States. She was 87 years
old.
Justice Murray, the first woman appointed to the Rhode Island
Superior and Supreme Courts, was a lifelong resident of Newport.
The daughter of John and Florence Kerins, Murray attended Rogers High
School in Newport and went on to attend Syracuse University, where she
would later serve on the Board of Trustees and was the only woman in
the 1942 graduating class at Boston University Law School where she
would become a member of the board of visitors.
Throughout her life Justice Murray sought ways to serve the
community. She began her professional career as a teacher in a one-room
schoolhouse on Prudence Island, in Narragansett Bay. Later, she joined
the Women's Army Corps and was promoted to lieutenant colonel before
leaving the service in 1947. Again, Murray broke ground when she was
the youngest woman to achieve that rank at the time.
Upon leaving the Army, she opened a one-woman law firm above a
grocery store on Thames Street. She was the only female lawyer in
Newport when she opened her firm. She later practiced law with her now-
deceased husband, Paul F. Murray, who went on to serve as U.S. Attorney
for Rhode Island from 1977 to 1981. Paul and Florence had a son Paul M.
Murray.
Continuing her traditions of giving back to her community and public
service, Murray served as both a State Senator from Newport and member
of the city's School Committee.
Murray was the only woman in the Rhode Island Senate during her years
in the State House from 1948-1956.
While there, she sponsored legislation to abolish wage differences
based on gender and for equal pay for teachers throughout the State.
She also introduced a bill making it easier for a parent to get child
support if a former spouse leaves the State, and another that led to
the creation of State facilities for the care and treatment of
alcoholics.
In 1956, Murray was sworn in as the State's first female superior
court judge. She became the first female chief judge of the superior
court in 1978, and when she was elected by the General Assembly to the
State Supreme Court in November 1979, she became the first woman on
that bench. She authored more than 500 opinions during her time on the
Supreme Court before retiring in 1996.
Supreme Court Justice Maureen McKenna Goldberg, who was appointed to
Murray's seat on the high court upon her retirement, praised her ``for
having broken down so many barriers that were previously closed to
women. I believe her greatest accomplishment is that, before she boldly
marched into uncharted territory, she paused, turned around and
beckoned the rest of us to follow.''
During her four decades on the bench, Murray displayed an incredible
work ethic and modest demeanor. In a 1997 interview with the Providence
Journal she spoke about how she approached her job, ``I haven't got any
special attributes. I just do a job as well as I can do it, and I seek
to keep myself well-informed about whatever my field of work is.''
When she was not at work, Murray found dozens of other ways to
contribute. She was a member of the Rhode Island Heritage Hall of Fame,
a recipient of a Citizen of the Year Award from the Rhode Island Trial
Lawyers Association, and a Judge of the Year Award from the National
Association of Women Judges.
The American Bar Association honored her in 2002 for pioneering work,
in the late 1950s, that led to the establishment of Rhode Island's
Family Court.
She served on numerous judicial and civic boards over the years,
among them, Salve Regina College and Bryant College and she founded the
Newport Girls Club.
In her retirement, Murray was appointed by President Clinton to serve
on the board of directors of the State Justice Institute and remained
active in National Judicial College affairs.
Murray was honored in 1990 when the Newport Court House was renamed
the Florence K. Murray Judicial Complex. It was an excellent and
fitting way to honor a great woman.
And when we honor Justice Murray, we must remember to honor the
greatness of her achievements. Not because she was a woman, but because
her accomplishments were spectacular for any person, man or woman.
My deepest condolences go out to her friends and family, especially
her son, Paul. Justice Murray was an incredible woman who was bound by
no barriers. She was a patriot and a pioneer, a public servant and a
mother. In her quest to improve herself, she improved the world around
her. We will miss her dearly.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CRAIG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CRAIG. Mr. President, are we on particular legislation at this
moment?
The PRESIDING OFFICER. We are on a motion to recommit S. 1637, the
JOBS bill.
Mr. CRAIG. Mr. President, I ask unanimous consent that I be allowed
to speak as in morning business for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

SAFE Act

Mr. CRAIG. Mr. President, I have come to the floor, as my colleague
from Illinois did a few moments ago, to talk about the USA PATRIOT Act
and where we are with this issue that the American people have
recognized as important for a variety of reasons.
We all know that following the attack on American soil on September
11, 2001, we produced the USA PATRIOT Act to allow the law enforcement
and intelligence communities of this country to move forward and do a
variety of things. For the first time, we stepped

[[Page S3904]]

into some arenas of law that many citizens of our country looked at at
the time and said, be careful if you go there for you may well be
intruding upon what are fundamental and constitutional rights of
privacy with the American people.
I voted for the PATRIOT Act at that time, and I did so speaking to
the fact that I thought it was necessary that we move expeditiously to
allow our law enforcement community to operate for the purpose of
national security. I said at that time that this was not a perfect law.
In fact, 253 communities and 37 States later, representing
approximately 43.5 million people, have passed resolutions opposing or
expressing concern about the PATRIOT Act. Groups as politically diverse
as the ACLU and the American Conservative Union endorse changes in the
law.
In his State of the Union Address, the President called for
reauthorization of the PATRIOT Act. Given the bipartisan opposition to
the law at this moment as it currently stands, there are many of us who
believe it is necessary to make some adjustments in the law as we move
toward reauthorization. Congress, in fact, made oversight of the
PATRIOT Act implicit by sunsetting over a dozen sections of the bill at
the time of its passage.
The Senator from Illinois and I drafted S. 1709 with this oversight
in mind. It was drafted to clarify and amend in a minor way the PATRIOT
Act's most troubling provisions so that the whole or even piecemeal
repeal of the law would be unnecessary. It was drafted to safeguard the
liberties of law-abiding citizens while preserving the law enforcement
authorities essential to a successful war on terror.
Late last month, however, the Department of Justice issued a letter
objecting to the very legislation, objecting to it before there had
even been a hearing on it. Specifically, they objected to the SAFE Act
on grounds that it would ``eliminate'' some PATRIOT tools and even
``make it more difficult'' to fight terrorism than before enactment of
the PATRIOT Act.
Let me be emphatic: the SAFE Act in no way repeals any provision of
the PATRIOT Act, nor impedes law enforcement's ability to investigate
terrorism by amending pre-PATRIOT Act law. My name would not be on a
bill that accomplished those things.
What the SAFE Act does do is clarify and slightly modify several
provisions, particularly those related to the use of surveillance and
the issuance of search warrants, to restore the judicial oversight
requisite to healthy law enforcement.
Specifically, the SAFE Act would impose two reasonable safeguards on
the use of roving wiretaps for intelligence purposes.

Before the PATRIOT Act, roving wiretaps were only permitted for
criminal, not intelligence, investigations. The PATRIOT Act authorized
the FBI to use roving wiretaps for intelligence purposes for the first
time.
The Intelligence Authorization Act of 2002 further permitted the FBI
to obtain ``John Doe'' wiretaps in an intelligence investigation
without specifying either the target or the location of the wiretap.
Law enforcement is only required to provide a physical description of
the target, such as 5'7", Middle Eastern descent or something else
equally as vague, so as to, in my opinion, be meaningless. In order to
protect the private conversations of people wholly unrelated to the
investigation, the SAFE Act simply requires that law enforcement
specify either the target or the location of the wiretap and ascertain
the presence of the target before initiating the surveillance.
Far from eliminating the roving wiretap, S. 1709 only makes the
requirements for a roving wiretap for intelligence surveillance conform
to the requirements for roving wiretaps under the criminal code. Does
this tie law enforcement's hands in the way the Justice Department so
described it? Hardly so.
In the case of sneak-and-peek warrants, before the PATRIOT Act, there
was no statutory authority for delayed notice warrants for physical
evidence, although covert searches of oral and wire communications for
intelligence purposes were allowed. The Supreme Court never ruled on
the constitutionality of sneak-and-peek warrants for physical evidence,
and the Federal circuit courts were divided on the issue.
Despite this, the PATRIOT Act granted Federal law enforcement broad
authority to obtain sneak-and-peek warrants for physical evidence where
a court finds ``reasonable cause'' that providing immediate notice of
the warrant would have an adverse result, including seriously
jeopardizing an investigation or unduly delaying a trial,''--a very
broad standard.
The SAFE Act, our amendment to the PATRIOT Act, reasonably limits
when a court may issue a sneak-and-peek warrant for physical evidence
to situations where notice of the warrant would:
(1) endanger the life or physical safety of an individual;
(2) result in flight from prosecution; or,
(3) result in the destruction of or tampering with evidence sought
under the warrant.
Though the Department of Justice argues that scenarios such as a
suspect's associates fleeing, going into hiding, or accelerating their
plots would be excluded from the sneak-and-peek authority, these
clearly fall within the reasonable limits of the SAFE Act.
The Department of Justice also misrepresents the authority of the
sneak-and-peek provision when it says that the SAFE Act would
``restrict the ability of courts to extend the period of delay'' for a
delayed-notice warrant. Although S. 1709 requires notice of a covert
search within 7 days rather than a reasonable period, it authorizes
unlimited 7-day delays if the court finds that notice of a warrant
would continue to endanger the life or physical safety of an
individual, result in flight from prosecution, or result in the
destruction of or tampering with the evidence sought under the warrant.
Far from restricting the courts, the SAFE Act restores what I believe
is the proper level of judicial oversight in the process.
I believe the Department of Justice also misrepresented the
modifications the SAFE Act would make to section 215 of the PATRIOT
Act, which permits law enforcement to obtain a vast array of business
records with minimal judicial oversight.
Before the PATRIOT Act, FISA search orders were available for only
certain travel-related ``business'' records--not library or personal
records--where the FBI had ``specific and articulable facts''
connecting the records to a foreign agent.
These orders are available for any and all records, including library
records, by simply certifying that the records are sought for an
international terrorism or intelligence investigation, a standard even
lower than relevance. The court does not even have the authority to
reject this certification under current law.
Though the Department of Justice describes the SAFE Act standard as a
``much more rigorous'' standard, FISA search orders would still be
available for any and all records, but only when the FBI has ``specific
and articulable facts'' connecting the records to a foreign agent.
Far from ``raising the standard'' to a new level, S. 1709 reinstates
the proper pre-PATRIOT standard for obtaining a FISA order for business
records, and even maintains the PATRIOT Act's expanded definition of
business records.
Likewise, the Department of Justice argues that section 5 of the SAFE
Act would impose an ``entirely new limitation'' on the use of National
Security Letters.
Before the PATRIOT Act, the FBI could issue a National Security
Letter to obtain personal records by certifying that it had reason to
believe that the person to whom the records relate is a foreign power
or agent of a foreign power.
Current law allows the FBI to obtain sensitive personal records,
without judicial approval, simply by certifying that they are sought
for a terrorism or intelligence investigation, regardless of whether
the target is a suspect.
While national security letters are only to be used to obtain name,
address, length of service, and local and long distance toll billing
records, available information indicated that the Justice Department is
using them to obtain other kinds of records, including library records.
Contrary to the assertions of the Department of Justice, the SAFE Act
maintains the greatly expanded definition of ``financial

[[Page S3905]]

records,'' and even makes such records available without individual
suspicion. S. 1709 only reasonably exempts libraries and Internet
terminals from National Security Letter orders.
While I am disappointed that the Administration has expressed
disagreement with the SAFE Act, I view this as an opportunity to
increase the public discussion on one of the most important issues of
the day.
I know Attorney General John Ashcroft. John and I are personal
friends. I am not worried about how John Ashcroft will enforce the law.
But administrations change. The law lasts, and it is imperative that it
embodies a smooth balance of liberty and justice.
I am not seeking to repeal any provision of the PATRIOT Act but
rather to salvage it by making necessary, albeit minor, amendments to
it in order to safeguard individual liberties while preserving the very
important law enforcement authorities it grants. Privacy is a hallmark
of our constitutional system--the right of the individual within that
system--and what we attempt to do by the SAFE Act, S. 1709, is to
assure that when we reauthorize the PATRIOT Act, we guarantee that
those rights are preserved.
I yield the floor.
Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues
Senator Craig and Senator Durbin in calling for hearings on this
important legislation to amend the PATRIOT Act.
After the vicious attacks of September 11, there was a broad
consensus in Congress about what needed to be done. We all recognized
the need to give law enforcement and intelligence officials stronger
powers to investigate and prevent terrorism, to provide officials with
effective ways to stop terrorists from entering our country, and to
achieve greater coordination between the law enforcement and the
intelligence communities. At the same time, we understood the critical
importance of protecting the basic rights and liberties of our citizens
and others residing legally in the United States and maintaining
America's long tradition of welcoming immigrants from around the world.
The challenge we faced, then as now, was how to strike the right
balance between law enforcement and civil liberties.
Many of us were concerned that some of the changes initially
requested by the administration did not strike the right balance. We
made significant improvements to the PATRIOT Act during Senate
negotiations, but we also recognized the need to follow the
implementation of these new powers carefully. That is why the 4-year
sunset provision is such an important part of the legislation. By
passing the sunset provision, Congress committed itself to revisiting
the PATRIOT Act after 4 years, in a non-election year, and making a new
and better-informed assessment of which powers should be retained,
which should be revised, and which should be eliminated.
Since the enactment of this law, there has been increasing bipartisan
concern about its effect on civil liberties in this country. Two
hundred fifty-seven communities in 38 States representing over 40
million citizens, have passed resolutions opposing or expressing
concern about the PATRIOT Act.
Clearly, we must do more to protect the basic rights and civil
liberties of law-abiding Americans. The bipartisan Security and Freedom
Ensured Act is narrowly written to correct some of the PATRIOT Act's
most controversial provisions: it would protect innocent people from
surveillance, by requiring ``roving wiretap'' warrants to identify
either the target of the wiretap or the place to be wiretapped; it
would impose reasonable limits on the Government's ability to carry out
``sneak and peek'' search warrants, by requiring notice of such a
covert search to be given within 7 days after the search, unless the
notice would endanger a person's life or result in the destruction of
evidence or a suspect's flight from prosecution; and it would protect
library and bookstore records from ``fishing expedition'' searches of
the records, while still allowing the F.B.I. to follow up on legitimate
leads.

None of these changes would amend pre-PATRIOT Act law in any way.
None would impede the ability of law enforcement and intelligence
officials to investigate and prevent terrorism. To the contrary, the
SAFE Act would retain the expanded powers created by the PATRIOT Act,
while restoring the constitutional safeguards that are indispensable to
our democracy. These safeguards are a continuing source of our
country's strength, not luxuries or inconveniences to be jettisoned in
times of crisis.
Unfortunately, the administration does not agree. Our proposal has
not yet received a hearing in the Judiciary Committee, yet the
administration has already threatened to veto it. Rather than comply
with the sunset provision specifically written into the PATRIOT Act
itself, President Bush has sought to make an election-year issue out of
it by calling on Congress to reauthorize the Act now. Rather than seek
to promote understanding, the Attorney General and other officials have
chosen to defend the PATRIOT Act by speaking only before audiences
sympathetic to their views. In Boston and other cities, citizens with
questions and concerns about the PATRIOT Act have been shut out.
I urge my colleagues not to accept this cynical election-year
strategy. In the House, Chairman Sensenbrenner has rejected calls for
reauthorizing the PATRIOT Act this year, and we should do the same in
the Senate. We should conduct additional hearings in the Judiciary
Committee on the many important civil liberties issues that have been
raised since September 11, including the administration's unprecedented
and troubling ``enemy combatant'' policy, under which U.S. citizens are
incarcerated without counsel or judicial review. Attorney General
Ashcroft should appear to defend these and other policies. And we
should hold hearings specifically on the bipartisan SAFE Act proposed
by Senator Craig and Senator Durbin.
We should also hold hearings on the need for legislation to protect
the civil liberties of immigrants. The detention provisions in the
PATRIOT Act have led to the unfair detention of innocent people.
Massive registration programs have fingerprinted, photographed and
interrogated over 80,000 innocent Arab and Muslim students, visitors,
and workers. ``Voluntary interview'' programs have made criminal
suspects out of Muslims legally residing in the U.S. In our pursuit of
terrorist suspects, our Government cannot be allowed to ride roughshod
over the basic rights and liberties of immigrants.
In a speech in 1987, Justice William Brennan observed that the United
States had repeatedly failed to preserve civil liberties during times
of national crisis--from the Alien and Sedition Acts of 1798, to the
internment of Japanese Americans during World War II--only to later
realize ``remorsefully . . . that the abrogation of civil liberties was
unnecessary.'' As we continue to face the crisis of terrorism today, we
should do all we can to avoid the errors of the past. The
administration and Congress should work together in a spirit of
bipartisanship and shared purpose, to bring terrorists to justice, to
enhance our security, and to preserve and protect our Constitution.
The PRESIDING OFFICER (Ms. Collins). The Senator from Pennsylvania is
recognized.

Pregnancy and Trauma Care Access Protection Act

Mr. SPECTER. Madam President, I support legislation which would
address certain serious problems faced today by doctors, hospitals, and
other medical professionals who provide obstetrical and gynecological
services and emergency or trauma care services, and at the same time
provide balance to fairly treat people who are injured in the course of
such medical treatment.
While most of the attention has been directed to OB/GYN and ER
malpractice verdicts, the issues are much broader involving medical
errors, insurance company investments, and administrative practices.
I support caps on noneconomic damages so long as they do not apply to
situations such as the paperwork mixup leading to the double mastectomy
of a woman or the death of a 17-year-old woman in a North Carolina
transplant case where there was a faulty blood type match, or
comparable cases in OB/GYN or the ER trauma services area.
An appropriate standard for cases not covered could be analogous
provisions in Pennsylvania law which limit actions against governmental
entities in

[[Page S3906]]

the limited tort context which exclude death, serious impairment of
bodily functions, and permanent disfigurement or dismemberment.
Beyond the issue of caps, I believe there could be savings on the
cost of OB/GYN or ER trauma malpractice insurance by eliminating
frivolous cases by requiring plaintiffs to file with the court a
certification by a doctor in the field that it is an appropriate case
to bring to court. This proposal, which is now part of Pennsylvania
State procedure, could be expanded federally, thus reducing claims and
saving costs.
While most malpractice cases are won by defendants, the high cost of
litigation drives up malpractice premiums. The proposed certification
would reduce plaintiffs' joinder of peripheral defendants and cut
defense costs.
Further savings could be accomplished through patient safety
initiatives identified in the report of the Institute of Medicine.
On November 29, 1999, the Institute of Medicine issued a report
entitled ``To Err Is Human: Building a Safer Health System.'' The IOM
report estimated that anywhere between 44,000 and 98,000 hospitalized
Americans die each year due to avoidable medical mistakes. However,
only a fraction of these deaths and injuries are due to negligence.
Most errors are caused by system failures.
The Institute of Medicine issued a comprehensive set of
recommendations, including the establishment of a nationwide mandatory
reporting system, incorporation of patient safety standards in
regulatory and accreditation programs, and the development of a
nonpunitive culture of safety and health care organizations. The report
called for a 50-percent reduction in medical errors over 5 years.
The Appropriations Subcommittee on Labor, Health and Human Services,
and Education, which I chair, held three hearings to discuss the
Institute of Medicine's findings and explore ways to implement the
recommendations outlined in the IOM report. For fiscal year 2001, the
subcommittee bill contained $50 million for a patient safety initiative
and directed the Agency for Health Care Research and Quality to develop
guidelines on the collection of uniform error data; establish a
competitive demonstration program to test best practices, and to
research ways to improve provider training. In fiscal year 2002 and
2003, $55 million was included to continue these initiatives. In this
year, fiscal year 2004, we increased the amount provided for patient
safety to $79.5 million.

We have received an interim report informing us the creation of a
positive safety culture at hospital and health care facilities in which
employees believe they would not be punished for reporting errors has
caused reporting rates of such errors to increase. The emerging
positive culture also includes the involvement of key leaders, both
administrative and clinical, in patient safety procedures. This has
helped professionals move ahead to improve patient safety and the
establishment of patient safety committees, development and adoption of
safe protocols and procedures and enhanced technology as a tool where
carefully implemented to reduce errors and approve safety, for example,
through the use of computerized physician order entry.
There is evidence that increased OB/GYN and ER trauma insurance
premiums have been caused at least in part by insurance company losses,
the decline in the stock market of the past several years, and the
general ratesetting practices of the industry. As a matter of insurance
company calculations, premiums are collected and invested to build up
an insurance reserve where there is considerable timelag between the
payment of the premiums and litigation which results in a verdict of
settlement. When the stock market has gone down, for example, that has
resulted in insufficient funding to pay claims and the attendant
increase in insurance premiums. A similar result occurred in Texas on
homeowners insurance where cost and availability of insurance premiums
became an issue because companies lost money in the market and could
not cover the insured losses on their accounts.
In structuring legislation to put a cap on jury verdicts, due regard
should be given to the history and development of trial by jury under
the common law where reliance is placed on average men and women which
comprise a jury to reach a verdict resulting from the values and views
of the community.
Jury trials in modern tort cases descend from the common law jury
trial in trespass, drawn from and intended to be representative of the
average members of the community in which the alleged trespass
occurred. This coincides with the incorporation of negligence standards
of liability into trespass actions.
This representative jury right in civil actions was protected by
consensus among the State drafters of the United States Constitution's
Bill of Rights. The explicit trial-by-jury safeguards in the seventh
amendment to the Constitution were an adaptation of these common-law
concepts harmonized with the sixth amendment clause that local juries
be used in criminal trials. Thus, from its inception in common law
through inclusion in the Bill of Rights today, the jury in tort
negligence cases is meant to be representative of the judgment of
average members of the community, not of elected representatives.
The right to have a jury trial to decide one's damages has been
greatly circumscribed in recent decisions by the U.S. Supreme Court. An
example is the analysis the Court has recently applied to limit
punitive damage awards. In recent cases, the Court has shifted its
seventh amendment focus away from two centuries of precedent in
deciding Federal appellate review of punitive damage awards will be
decided on a de novo basis and a jury's determination of punitive
damages is not a finding of fact for purposes of the reexamination
clause of the seventh amendment which provides ``no fact tried by a
jury shall be otherwise reexamined in any court of the United States,
than according to the rules of the common law.''

Thus, in the year 2003, the Court reasoned that any ratio of punitive
damages to compensatory damages greater than 9 to 1 would likely be
considered unreasonable and disproportionate, although that is subject
to certain exceptions and constitutes an unconstitutional deprivation
of property in non-personal injury claims. Plaintiffs will inevitably
face a vastly increased burden to justify a greater ratio and appellate
courts have far greater latitude to disallow or reduce such awards,
although increased awards can be permitted under the Supreme Court
decision. These decisions may have already, in effect, placed caps on
some jury verdicts in malpractice cases which may involve punitive
damages.
Consideration of the many complex factors on the Senate floor on the
pending legislation will obviously be very difficult in the absence of
a markup in committee or the submission of a committee report and a
committee bill. The pending bill is the starting point for analysis,
discussion, debate, and amendment. I am prepared to proceed with the
caveat there is much work to be done before the Senate would be ready,
in my opinion, for the consideration of final passage.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SUNUNU. Madam President, I wish to speak as if in morning
business for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

SAFE Act

Mr. SUNUNU. Madam President, I rise to speak on the issue of the
PATRIOT Act and to follow up on the remarks earlier this afternoon by
Senator Craig of Idaho. I have joined Senator Craig in cosponsoring the
SAFE Act, a piece of legislation that would make certain modifications
to the PATRIOT Act. I will not go into all of the details of the
legislation, as Senator Craig did. However, I do want to highlight a
couple of the main provisions of the legislation to outline our
thinking in crafting these provisions and underscore why I think we
need to take a step back, look at the PATRIOT Act in its totality and
try to make it work better and try to strike a better balance the
protection of the civil liberties we all cherish as Americans and the
tools we do believe are necessary for law enforcement and intelligence
agencies to conduct the war against terror.
It is unfortunate some people have come out with a knee-jerk reaction

[[Page S3907]]

calling for the repeal of the PATRIOT Act. Before the PATRIOT Act our
laws did not reflect or foresee a day and age with cellular phones,
satellite phones, and a high-speed Internet. There are a lot of very
important provisions of the PATRIOT Act that do update our law
enforcement capabilities in a way that reflects changes in technology.
Protecting civil liberties while giving law enforcement the ability to
operate as technology and new threats to our security emerge is
critical to winning the global war on terror.
We can draw an appropriate line to protect civil liberties in a few
specific areas. First, let's look at sneak-and-peek warrants, or a
delayed notification search warrant. Senator Craig spoke at length
about the provision in the SAFE Act that would modify the PATRIOT Act
to say instead of requiring notification within a reasonable amount of
time, which is clearly an arbitrary definition. Instead, we ought to
have a set time limit that notification of a search warrant executed
without notice has to be provided within 7 days of the execution of the
warrant.
Now, if there is a threat to safety, or risk of flight, or a risk of
damage to the investigation, the SAFE Act allows law enforcement
officials to go back to the judge and extend that notification another
7 days. And that can continue indefinitely. This approach--specifying a
time limit on the warrant and providing for more judicial review--is
much clearer and more respectful of civil liberties. For anyone to
suggest adding clarity in the law for notification undermines the
capacity of law enforcement to continue to do their job, I think, is a
level of rhetoric that does not serve an important debate such as this
very well.
Second, we added clarification to the provision in the PATRIOT Act
that deals with a roving wiretap. The SAFE Act would require law
enforcement to specify either the suspect to be put under surveillance
through a roving wiretap--an order that follows that suspect as they
use different cell phones, and other means of communication--or specify
a particular location to be monitored. Specify the suspect or specify
the location. Changing the PATRIOT Act to require such specification
would add clarity to ensure the PATRIOT Act is not misused and
minimizes the likelihood that innocent parties would be unknowingly
tapped. And again, such a change would only improve the PATRIOT Act as
it would protect those who are not targets of investigation but it
still give law enforcement the ability to conduct this kind of a roving
wiretap.
Third, another provision of the SAFE Act applies sunset provisions to
a number of different sections of the PATRIOT Act that do not sunset
over time. When we talk about a sunset provision in the U.S. Congress,
we are talking about a specific period during which the legislation is
in force, but after that period--it might be a 2-year or 3-year or 4-
year period--the law sunsets, and it needs to be reenacted or
reauthorized by Congress.
I think sunsets are healthy. They are good because they force
Congress to rethink and reargue a piece of legislation and examine how
the legislation has been used and problems that might exist with it. I
think we are much more likely to make improvements to legislation if we
have to reauthorize it at different periods in the future.
I do not understand why anyone would say a sunset provision weakens
legislation. It does not. It simply requires us to renew them at a
future date. I do not know why law enforcement would be afraid of a
sunset provision. I do not know why the Justice Department would be
afraid of a sunset provision. If there is value to the law, it is
helping law enforcement do their job, and all the while it is
appropriately protecting civil liberties, the law will be reauthorized
and improved over time.
I cannot think of any reason the provisions of the SAFE Act that add
clarity to the time frame for notification and judicial review of a
sneak and peak warrant, that add specification to the person or place
targeted for a wiretap, or that sunset provisions to a law--should be
opposed on the grounds that they somehow threaten our ability to
conduct the war on terrorism. Quite to the contrary, the provisions of
the SAFE Act go a long way toward ensuring individual civil liberties
are protected, that the ability to misuse or abuse the law is
minimized, that law enforcement continues to have what it needs to
prosecute the war on terrorism and that Congress has to affirm and
reauthorize legislation over time. I only see the SAFE Act as
strengthening the PATRIOT Act.
So I join with Senator Craig, Senator Durbin, Senator Feingold,
Senator Crapo, other members of the Senate and the wide range of
citizen groups who have all endorsed and supported the SAFE Act. I hope
when we begin deliberations and discussions about renewing and
extending the PATRIOT Act, these substantive yet modest, thoughtful
modifications are a vital part of that debate that is undertaken in
this Chamber.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. DAYTON. Madam President, what is the pending business?
The PRESIDING OFFICER. The motion to recommit the JOBS bill is
pending.
Mr. DAYTON. Thank you, Madam President. I will speak to that motion,
please.
Madam President, today, we voted actually a second time on that
motion to invoke cloture to recommit this pending bill to the Finance
Committee--a vote that failed. So, in other words, we essentially voted
not to recommit the bill to the committee of origin.
I emphasize that fact because in my State of Minnesota Democrats are
being accused of blocking action on this bill. That simply is not true.
We are ready and willing to act on this legislation right now, in fact,
as we were last week before it was pulled off the floor by the
Republican leader.
So people watching might ask themselves, why was it pulled back then?
Why have we been faced with these repeated attempts to send the bill
back to committee? The reason is because the Republican caucus does not
want to have to vote on the pending amendment, which is the Harkin
amendment, which would protect the rights to overtime pay for some 8
million Americans--police officers, firefighters, nurses, laborers;
hard-working Americans who want to continue to receive overtime pay
when they work their extra hours, whether it be for the sake of public
safety, whether it is needed to fill shifts on hospital wards in order
to keep them open to patients, or whether it is in order to earn extra
income to improve their own lives and the lives of their families.
These 8 million Americans are not asking for any special favors, such
as are provided in the underlying bill. They are not trying to get
special tax breaks or avoid paying taxes on their foreign income, as
are the beneficiaries of the underlying bill. They simply want to be
able to earn the American dream, by working harder, by working longer
hours, paying their taxes but then coming out ahead because of the
overtime provisions.
But this administration has said no, the same administration that
wants to eliminate taxes on so-called unearned income, dividend income.
They settled for cutting the rate in half but wanted to eliminate it
initially. In other words, they want to make not working more lucrative
and also want to make working harder less lucrative.
Now, what kind of family value is that? You work more and you earn
less because the Bush administration cares more about the corporations
that want to add to their profits by paying their workers less money.
That is why they moved millions of American jobs overseas. That is why
they have eliminated millions of American jobs.
Madam President, 8.5 million of our fellow Americans are out of a job
today. And now these same corporations, which have, by the way, been
enjoying record high-profit increases in each of the last 2 years, want
to make even more money by paying less money to the people who are
still working. And the administration is going to help them do it.
In fact, the Secretary of Labor unilaterally, by herself, revoked the
overtime benefit protections for 8 million Americans. We, their elected
representatives, are not even being allowed to vote on that matter to
express our approval or disapproval--in this case, my strong
disapproval--of that revocation of their overtime benefit protections.

[[Page S3908]]

Why not? Why can't we vote on protecting 8 million American workers?
Well, the Republican Conference leader said: Where is the discernible
gain to our Members from voting on this and other Democratic
amendments?
I don't know about the gain to colleagues who don't want to support
overtime pay, but I will tell you about the gain or the loss to those 8
million American workers, depending on whether this measure passes or
fails.
That is their overtime pay that has been taken away by the unilateral
action of the Secretary of Labor. That is their earned income that has
been taken away. That is their new home, their college education,
family vacation, prescription drugs they need to buy for elderly
relatives.
We in the U.S. Senate are being denied even the right to vote because
it is politically inconvenient for some of the Republican caucus.
There is also a huge gain or loss for millions of other Americans who
are out of work by the fate of another Democratic amendment to extend
unemployment benefits to the 1.1 million Americans who have exhausted
theirs at the present time. That number includes an estimated 20,000 of
my fellow Minnesotans. They are also hard-working men and women who,
through no fault of their own, lost their jobs and have been looking
for work and unable to find it in the terrible jobs climate of the last
couple years.
Two-thirds of those out-of-work adults have children. An estimated
622,000 children are affected in those families that have exhausted
their unemployment benefits. When that happens, it is estimated that
over two-thirds of those families lose their health coverage, so the
children do not have health care coverage any longer. Over half those
families, it is estimated, fall below the poverty level as a result of
losing their unemployment benefits. It is unbelievably heartless and
cruel to deny them this extension. Yet again we are unable to get a
vote in the Senate on extending unemployment benefits to those
Americans.
Since we are unable to get these votes on our amendments to this JOBS
Act, you might ask yourself, what is so precious about this bill, what
is so perfect about it that the leader is denying us a chance to change
it in any way? You would naturally assume that because it is called the
JOBS bill, it is about actually providing jobs to fellow Americans, but
that is not the case.
This is about providing $114 billion in tax breaks to large and
mostly profitable American corporations, to very wealthy American
investors. Thirty-nine billion of these tax breaks would go to their
foreign business operations to allow them to reduce taxes paid in this
country on foreign profits, to allow them to postpone the payment on
earned income abroad; in other words, to provide them with additional
tax breaks for expanding their foreign business operations and
providing jobs overseas.
Some of those jobs might in fact be American jobs taken away from
people in this country and sent elsewhere or they might be jobs that
are going to be created through an expanded business operation that
could have been created here in the United States except for the
advantages of doing so elsewhere--meaning again that foreign workers
get those jobs rather than Americans at a time when we have 8.5 million
Americans who are out of work and another million and a half Americans
who are so-called marginally attached to the labor force, who have
given up looking for work, and another 4.5 million Americans who are
working part time not by choice but because it is the only work they
can find.
In other words, over 10 percent of our workforce is either unemployed
or underemployed right now, and we are providing foreign tax breaks
worth $39 billion, additional foreign tax breaks, in this measure to
these companies or to the investors in them.
I will have an amendment I will offer that would address this matter
and take these foreign tax breaks out of the bill, because if we are
going to provide tax incentives, as other parts of the bill do, let's
at least provide those incentives to American companies for producing
jobs in the United States. Let's tie every single one of the tax
advantages in this legislation to the provision of new jobs, ideally
manufacturing jobs but provable new or additional jobs in the United
States to Americans now, not as the measure provides for tax breaks
that are going to accelerate in the years 2009 to 2012. Those are not
going to result in the creation of new jobs in this country now. We are
giving tax advantages to companies, some of which can certainly benefit
from it, but many have been part of the 20-percent increases in
corporate profitability in each of the last 2 years.
I am glad American corporations are profitable. We need them to be
profitable in order to create jobs. But the fact is that at least in
the manufacturing sector--and up until now in just about any other
sector--improved profitability has not resulted in new job creation in
the last couple of years. It didn't result in new job creation last
month. So if we are going to provide tax reductions for U.S.
manufacturing companies or anyone else, let's make darn sure those
reductions are going to result in jobs, the creation of new jobs or the
adding of jobs where formerly people had been laid off or cut back.
Let's translate those tax breaks into what this bill calls itself, a
JOBS Act, jobs for Americans.
Finally, I want to address the fact that as part of this gambit today
to supposedly recommit the bill to the committee where it already was
referred out, one of the ways in which we were supposedly going to be
induced to do so was some part of the former Energy bill, we were told,
was going to be added to the bill that reappeared out of the Finance
Committee. I appreciate very much the work that has been done by that
committee, in particular by Chairman Grassley of Iowa, who has been
stalwart in terms of providing additional tax incentives for energy
production, particularly the biofuels, ethanol, and biodiesel fuels. He
was instrumental also in changing the formula on the highway trust fund
that penalized States such as Minnesota for their ethanol consumption.
I would like to join with the majority leader and others who would like
to advance this Energy legislation forward.
Since the bill was not recommitted to the Finance Committee, I have
drafted an amendment I intend to introduce to add some of the energy
provisions to the pending bill, ones that would reinstate the renewable
fuels standard Senator Daschle, the Democratic leader, was instrumental
in adding and keeping through the conference committee a year ago,
legislation to expand the American consumption of ethanol and biodiesel
fuels over the next 10 years, the electric reliability section, which
is beneficial to smaller utilities throughout Minnesota and elsewhere
in the Nation, and then the package of tax incentives which Chairman
Grassley, ranking member Baucus, and others voted out of the Senate
Finance Committee that provide alternative fuel incentives, the small
ethanol producer tax credit, the tradability of these credits by those
co-ops and others that otherwise can't take advantage of them, the tax
credit for biodiesel that parallels the credit provided for
ethanol production.

These are important measures that would do what the bill itself
purports to do, which is to add jobs and provide enormous economic
benefits to a State such as Minnesota, to farmers in terms of income,
to the production plants for ethanol and biodiesel fuels.
Those are real jobs amendments, real jobs provisions, those that are
going to provide tax credits for business activities, those that are
going to result directly in additional jobs for America and in an
alternative fuel for America that can reduce our dependence on foreign
oil; that can take some of the $115 billion a year we send out of the
country to foreign countries such as Saudi Arabia and elsewhere to
import foreign oil into this country; $115 billion that, if it were
going into the pockets of American farmers and multiplying those
dollars throughout communities, would result in an economic
revitalization of rural America the likes of which we have not seen in
decades and which we couldn't create any other way, not through all the
Government programs you want to imagine, just through the free market,
through increased profitability for American agriculture, through the
creation of cleaner burning fuels that are available right now and
could be produced right now in quantities to significantly replace the
gasoline that is consumed all over this country.

[[Page S3909]]

That is a real jobs amendment, one I will be introducing and hope we
can consider as part of the JOBS Act, so we can make that bill live up
to its name, one that will actually provide jobs for Americans rather
than corporate tax giveaways for those who don't need them.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. VOINOVICH. Madam President, I want to comment on the remarks of
the Senator from Minnesota this evening before the Senate and indicate
many of us who voted against the Harkin amendment were also as
concerned about some of the things the Senator of Minnesota talked
about, in terms of the benefits that accrued to working men and women
in the United States of America.
I made it clear at that time, when I voted against the Harkin
amendment, I felt the Department of Labor should be able to move
forward with their recommendations on a law that hasn't been changed
since 1978, and that if what my colleagues on the other aisle have
indicated is true, many of us would join them in having those rules
overturned by the Members of the Senate.
I am pleased to say those rules have been finished by the Department
of Labor and they are now at OIRA, which is in the Office of Management
and Budget, being reviewed by John Graham. I am hopeful they will be
back to the Department of Labor within the next 30 days, so we will
know specifically what it is those rules are going to recommend in
terms of changes in the law. Hopefully, they are not going to reflect
what I have heard on the floor of the Senate over the last couple of
months about eliminating overtime for 8 million workers.
The other thing I want to point out is there are many of us on this
side of the aisle who are very much in favor of extending unemployment
benefits, and I joined with many colleagues to try to get cloture on
that amendment several weeks ago. I hope in the next couple of weeks we
will be able to get that passed on the Senate floor. There are hundreds
of workers in my State--and I am sure also in Minnesota--anxiously
waiting for those benefits. In my State, we have too many people who
are unemployed. Quite frankly, too many people in my State are worried
about whether they are going to have a job. So some of the things the
Senator talked about, I hope, will be dealt with during the next couple
of weeks.
Mr. DAYTON. If the Senator will yield, I thank the Senator for the
update on the overtime situation. I look forward to improved provisions
from the Secretary of Labor. I thank the Senator also for his
involvement and support to extend unemployment benefits. I know people
in his State of Ohio, my State of Minnesota, and many States
desperately need that. So I thank him.
Mr. VOINOVICH. Madam President, I also share the Senator's enthusiasm
about the ethanol guarantee in the Energy bill. There are many other
provisions in that bill many of us are concerned about. I think it
represents the first real energy policy this country has had. Again,
hopefully, we can work it out so that can get done along with the other
provisions. He is right; that bill has some real job-creation aspects
to it, particularly in the area of ethanol. We have several companies
now that are thinking about building ethanol plants in Ohio, and I
think one of the things the American public doesn't understand is it is
going to provide less reliance on foreign oil and, in addition, it will
limit some of the environmental problems we have from gasoline, with
some other very good and important aspects to all of our brothers and
sisters.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
(The remarks of Mr. Voinovich pertaining to the introduction of S.
2292 are printed in today's Record under ``Introduction of bills and
joint resolutions.'')
Mr. VOINOVICH. I thank the Chair, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Security and Freedom Ensured Act

Mr. FEINGOLD. Madam President, I join my colleagues Senators Craig
and Durbin in urging the administration and Congress to support the
SAFE Act. The SAFE Act is a much needed bill that amends a few
provisions of the USA PATRIOT Act in a reasonable way to preserve our
constitutional rights and protections while still protecting our Nation
against terrorism.
More than 2 years after the PATRIOT Act passed so overwhelmingly,
without close scrutiny by Congress, I am delighted that there is now
growing support for close examination of application of the law and for
changes to the law to ensure that, as we fight terrorism, we also
protect the civil liberties of Americans.
There is reason for hope. In Congress and in communities across the
country, the American people are beginning to realize that the PATRIOT
Act went too far.
In Congress, there is bipartisan support for changes to the law. I am
pleased to join my Republican colleagues, Senators Craig, Crapo,
Sununu, and Murkowski, as a cosponsor of the SAFE Act.
Over 275 communities and four States have now passed resolutions
expressing opposition to certain provisions of the PATRIOT Act.
Mr. President, the attacks of September 11, 2001, presented a new and
unique challenge to this country. I can think of nothing more important
than responding to that terrible challenge and protecting Americans
against terrorism. As I said during debate on the PATRIOT Act and
continue to say today, I believe most of the Act's provisions were
necessary and proper, such as increasing the number of border patrol
agents and allowing the FBI access to voicemails as a part of wiretaps.
But we must be sure that, in conducting the fight against terrorism,
the country's highest priority, we also respect the civil rights and
liberties of all Americans. History shows that America should not let
fear, however justified, cause us to sacrifice our liberty or the
liberty of others in the name of national security. The Palmer raids,
the McCarthy hearings, the internment of Japanese-Americans, these are
all events that have been judged poorly through the lens of history.
Today, we are again faced with a grave threat but we can and must face
it without potentially abusing the power of the Federal Government or
trampling fundamental constitutional rights and protections.
I am pleased that Members of Congress and the American people are
beginning to realize the values at stake. There is healthy debate
across the country in city councils, State legislatures, town hall
gatherings, and in Congress, on how best to preserve a free and open
society and to protect our Nation against future terrorist attacks.
In contrast, the administration does not seem interested in engaging
in a good faith dialogue with the American people and Members of
Congress about our legitimate concerns and reasonable proposals.
Instead, the President has prematurely called for lifting the sunset
on certain provisions of the PATRIOT Act that are due to expire.
Congress has a responsibility to exercise oversight and demand
accountability from the agencies using authority granted to them by
Congress. Nearly 2 years before some provisions of the PATRIOT Act will
sunset, the administration should be engaging in good faith discussions
and negotiations on how it is using the powers it has and how best to
protect our country from terrorism while also protecting the civil
liberties of our citizens.
I am pleased that both Senator Hatch and Representative
Sensenbrenner, the Chairmen of the Senate and House Judiciary
Committees, respectively, have disagreed with the President and have
stated that close scrutiny of the PATRIOT Act will be undertaken before
Congress will consider lifting the sunset provisions. I commend them
for taking this position. It is the right thing to do and the proper
role of Congress.
In addition to prematurely calling for lifting the sunset provisions,
the administration has already threatened to veto the SAFE Act if it is
enacted.

[[Page S3910]]

That is unfortunate, and very unusual. The administration has issued a
veto threat of a bill that was introduced just a few months ago and has
not even had a hearing yet. Thousands of bills are introduced each
year. The administration could spend a lot of time issuing veto threats
for every one it disagrees with. Obviously, it is worried about this
one. But veto threats at this early stage do not contribute to a
productive dialogue, and they certainly will not deter the growing
bipartisan interest in reevaluating the PATRIOT Act.

I would like to take a moment to talk about the SAFE Act and why it
is a reasonable proposal.
As my colleagues Senators Craig and Durbin have discussed, the SAFE
Act makes important modifications to enhance judicial review of the
FBI's roving wiretap and so-called ``sneak and peek'' search
activities.
I would like to comment on another important modification to the
PATRIOT Act contained in the SAFE Act, the section 215, or business
records, fix.
Prior to the PATRIOT Act, the Government could compel the production
of only certain business records in connection with a counter-
intelligence or international terrorism investigation, namely, hotel,
rental car, airline, and storage facility records. This was a narrow
set of records, and so it made sense to change the law. I agree with
that change, to allow the FBI access to more categories of business
records.
But the PATRIOT Act went too far because it also weakened the ability
of the courts to exercise their proper role as a check on the executive
branch, and it took away the requirement of individualized suspicion.
The PATRIOT Act changed the standards for allowing the FBI access to
such records. Prior to the PATRIOT Act, investigators had to state, in
their application to the secret FISA court, specific and articulable
facts giving reason to believe that the person to whom the records
pertained was a suspected terrorist or spy. If a court agreed, it would
issue the order.
The PATRIOT Act, however, vastly expanded this power so that
investigators no longer have to show ``specific and articulable
facts.'' Now, investigators need only state that the records are
``sought for'' a counter-intelligence or international terrorism
investigation. Upon receiving the application for a court order, the
judge must--must--issue the order. He or she does not have discretion.
The judge cannot review the merits of the request. For example, a judge
cannot review facts to determine whether the scope of the request is
reasonable. So long as the FBI asserts that the records are ``sought
for'' a foreign intelligence investigation, the judge must issue the
order.
The SAFE Act sponsors and I, as well as librarians, privacy
advocates, and an increasing number of Americans, believe this
provision of the PATRIOT Act goes too far. We recognize that there is
enormous potential for abuse if the FBI is allowed access to personal
information, such as medical records, library records, or newspaper or
magazine subscription records, all with no meaningful judicial review
and without a requirement of some showing that the records pertain to a
suspected terrorist or spy.

The SAFE Act would simply re-insert a pre-PATRIOT Act standard so
that he role of the judge as a check on the executive branch is real
and effective. Like the standard prior to the PATRIOT Act, under the
SAFE Act the FBI would need to state specific and articulable facts to
support its application. The SAFE Act simply restores the judicial
oversight that existed prior to the PATRIOT Act, giving the court the
power to ensure that the Federal Government is not engaging in a
fishing expedition at the expense of innocent Americans. This is a
reasonable response to protect both our security and our privacy.
The administration has not shown how this prudent safeguard would
harm the fight against terrorism or impair its ability to get access to
information it needs to protect the country.
I might add that according to the administration, as of last
September, almost 2 years since enactment of the PATRIOT Act, the
administration claims it had not yet used section 215 of the PATRIOT
Act. It is unclear whether they have used it since that time, and I
have recently sent the Attorney General a letter asking him whether it
has been used. But regardless of whether it has been used zero times or
a handful of times, it is nevertheless difficult to understand how re-
inserting an important judicial check would harm the fight against
terrorism.
I urge the administration to reconsider its position on the SAFE Act.
The American people have thoughtfully expressed their fears and wishes.
They want the Federal Government to protect them against terrorism, but
they also want the Federal Government to be respectful of the
Constitution every step of the way.
With passage of the SAFE Act, we can reassure the American people
that we are working to protect their rights and liberties, as well as
their safety. I urge my colleagues and the administration to support
the SAFE Act.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The majority leader.
Mr. FRIST. I thank the Chair.
(The remarks of Mr. Frist and Mr. Hatch pertaining to the
introduction of S. 2290 are located in today's Record under
``Statements on Introduced Bills and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from Florida.
Mr. GRAHAM of Florida. Mr. President, I will withhold at the request
of the leader.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Mr. President, let me thank the distinguished Senator
from Florida. This will only take a moment, but I yield the floor to
accommodate the majority leader.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Mr. President, I thank our colleague from Florida. He has
been sitting patiently. I already interrupted another Senator, but this
will be very brief.
Mr. President, over the next few minutes, I want to outline what the
plans will be over tonight and tomorrow, briefly.

Unanimous Consent Agreement--H.R. 3108

First, Mr. President, I ask unanimous consent that at 11 a.m., on
Thursday, April 8, the Senate proceed to the conference report to
accompany H.R. 3108, the pension equity bill. I further ask consent
that there then be 4 hours equally divided for debate between the two
leaders or their designees. Finally, I ask unanimous consent that
following the use or yielding back of time, the Senate proceed to vote
on adoption of the conference report, with no intervening action or
debate.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. FRIST. Mr. President, tomorrow we will have morning business. We
will say more about that. Then at 11 o'clock, we will proceed to this
conference report for up to 4 hours. I am not sure we will use that
entire 4 hours, but there will be up to 4 hours equally divided on this
very important bill, followed by a vote.
On a separate issue we have been addressing all day--actually the
last several weeks--the FSC/ETI or JOBS bill, we are making real
progress. As mentioned shortly after the vote earlier this afternoon,
we are working on a list of amendments, a finite list of amendments,
that would be agreed to by both the Democratic side and the Republican
side.
We made real progress. I was very hopeful we would be able to, around
this time, come back and say: This is the list; this is exactly how we
are going to handle it. But we will continue to work over the next
several hours and do want to announce that progress. We will have more
to say either later tonight but more probably early first thing in the
morning.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Mr. President, I want to confirm what the majority
leader has reported. I think we have made real progress. We are not
quite there, but I think we will be there. I can say, with great pride
and satisfaction, I appreciate very much the cooperation of

[[Page S3911]]

virtually every member of our caucus. I thank them for that cooperation
and would hope perhaps by sometime tomorrow morning we will be able to
reach an agreement.
I ask the majority leader if he anticipates any more rollcall votes
tonight, given where we are with regard to the current schedule.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Mr. President, in response, through the Chair, we will
have no more rollcall votes tonight. Assuming we will be able to reach
an agreement on a finite list on the FSC/ETI bill, I would expect we
would not have votes on Friday of this week either.
Again, I thank our colleague from Florida. That will be the last
interruption, I promise.
The PRESIDING OFFICER. The Senator from Florida.

Cost of Prescription Drug Benefit

Mr. GRAHAM of Florida. Mr. President, there is a recurring pattern in
this town. An issue comes to our attention. It is red hot. It creates a
great deal of controversy. Two months later it is forgotten. My effort
tonight is going to be to resurrect one of those issues because I think
is it not only extremely important, but it is also urgent that we give
it attention.
The issue is the administration's cost estimate of the Medicare
Modernization and Improvement Act and the circumstances surrounding the
failure to release that cost estimate to the Congress. As I said, this
is old news, but let me just refresh some people's memories.
As early as the summer of 2003, the administration's actuaries, the
people who work for the administration in the Department of Health and
Human Services, projected that the 10-year cost of the Medicare
legislation, which among other things provided a prescription drug
benefit, would be $534 billion over a 10-year period. It is also old
news that Mr. Rick Foster, Chief Actuary of the Medicare Program, was
ordered by the administrator of the Centers for Medicare and Medicaid
Services--at that time Mr. Thomas Scully--to withhold critical
actuarial data from Congress and that failure to abide by this order
might well result in Mr. Foster being fired.
What is yet to be news are the reasons for the months' long delay in
disclosing that estimate to the American public and to the Congress. It
has now been 10 weeks since we found out the Medicare bill that we had
represented to us as costing $400 billion over 10 years would actually
cost $534 billion, according to the administration's own actuaries--10
weeks. We have had no explanation for the reasons for the delay,
despite the following quote by Secretary Thompson, the Secretary of the
Department of Health and Human Services, on March 16 of this year. What
did the Secretary say?

There seems to be a cloud over this department because of
this. We have nothing to hide. So I want to make darn sure
that everything comes out.

Along with other members of the Finance Committee, I have asked the
chairman and the ranking member to hold a hearing on the cost estimate
and the reasons for its late disclosure. Given his strong track record
on Medicare oversight, I am confident these two fine Senators will do
so.
I want to be clear about a couple of things:
One, it is not the cost per se that is troubling to me. In a moment
of full disclosure, I voted for a prescription drug benefit that cost
more than $400 billion. I voted for a prescription drug benefit that
cost more than $534 billion. But I was voting for a prescription drug
benefit that would at least provide a reliable Buick-style benefit to
our seniors. What has now happened is we have learned that we passed a
Yugo-like prescription drug benefit and are now paying Cadillac prices
for it.
The second thing I wish to be clear about, some of my colleagues have
suggested that the only estimate that matters is the Congressional
Budget Office because Congress is legally required to rely on the CBO
numbers. You may recall, as a youth, reading some Charles Dickens
books, including possibly Oliver Twist. In that book, when confronted
with a similar argument, Mr. Bumble said:

If the law supposed that, the law is an ass, an idiot.

Mr. Bumble's perspective on the law aside, it is indeed true that
Congress uses CBO numbers as our official scorekeeper, and I am not
suggesting that at this point we alter that process. At the same time I
don't think anyone would disagree that it is in America's best interest
and the best interest of Congress to have as much information as
possible before we vote on significant pieces of legislation. That
would clearly include the insights of the person most knowledgeable
about the likely cost of this program--the actuary of the very
department that will have the responsibility for administering the
program.
In fact, it seems information was deliberate, purposefully withheld
from the Congress. That action of withholding was contrary to past
practices. Moreover, it appears to directly violate the spirit of the
Balanced Budget Act of 1997 which confirmed the independence of the
Chief Actuary and the desire of Congress to have access to his relevant
cost projections.
The fact that the official cost has appropriately been determined by
CBO is not the point, nor is the point the fact that there was a
difference in the cost estimates between the Congressional Budget
Office and the Department's actuaries. We know that different analysts
will frequently arrive at different conclusions. The point is this: the
enormous magnitude of the difference and the efforts apparently taken
by this administration to keep that huge difference hidden from public
and congressional scrutiny. That is the point.
The point is the Chief Actuary had information that would have been
valuable to us, Republicans and Democrats alike, in our deliberations
long before we took our vote on the final conferenced version of the
Medicare prescription drug legislation. This information was
deliberately withheld.
The fact is, if the White House had released to the public and the
Congress its own actuary's estimate of the cost of this Yugo
prescription drug benefit, the legislation would clearly not have
passed.
The Finance Committee has a particular obligation to investigate this
deception. As a member of that committee, I understand we have an
obligation to seniors who are depending on an affordable, quality
prescription drug benefit. We have an obligation to taxpayers who will
be paying for that benefit. We have an obligation to our fellow
colleagues to whom we declared, we represented that this plan would not
cost more than $400 billion, cross my heart and hope to die.
We have an obligation to get answers to these questions:
What did the President know regarding the much higher cost estimated
by his own actuaries and when did he know it? For someone from
Tennessee, that might be a familiar question.
If the President did not know that one of his stated priorities was
estimated by his actuaries to far exceed the cost ceiling for this
Medicare change--$400 billion over 10 years--who within his
administration failed to notify him of this extraordinary cost overrun?
Third, what actions, if any, were taken by the Department of Health
and Human Services, the Office of Management and Budget, or the White
House itself to prevent the timely and accurate reporting of
information to Congress on the cost of this Medicare bill?
Finally, who has the President held accountable for this deception
and what sanctions have been imposed?
These are ``rational, critical, important to the Congress and the
public to know the answers'' questions. One of the immediate impacts we
are going to have because of this withholding is that the Congress, the
Senate, now the House, have recently passed budget resolutions. These
budget resolutions cover fiscal year 2005, which begins October 1 of
this year, running through fiscal year 2009. In that budget resolution,
as passed by the Senate, the baseline cost of the new Medicare
prescription drug provisions and other matters that were included in
that legislation is $165 billion over 5 years. The number, as
determined by the administration's own Office of the Actuary in the
Department of Health and Human Services, is $231 billion.
Mr. President, what are we going to do when we face the question of
funding this prescription drug benefit--what I suspect to be likely
closer to its true cost, $231 billion, as opposed to $165 billion,
CBO's number. Are we

[[Page S3912]]

going to have to have a point of order with 60 votes every time we
exceed the clearly inadequate number in order to provide the benefit
that we are now running millions of dollars worth of television ads
telling the seniors of America they are about to get a new benefit,
without any changes in the Medicare Program?
The Finance Committee needs to closely examine these different
numbers. I suggest a couple of places to start. Approximately 25
percent of the difference between CBO and the actuaries is in one area,
and that is what will be the effect of increasing the number of persons
who are enrolled in health management organizations. This legislation
not only dealt with prescription drugs, but it also substantially
increased the funding for HMOs and insurance companies in order to
create an atmosphere that would induce new Medicare beneficiaries to
change their form of service from fee for service to traditional
Medicare and to join an HMO.
In fact, the CBO estimated it would cost an additional $14 billion to
do that. The administration estimates it will cost $46 billion. You
might ask why does it cost more. I thought the purpose of using an HMO
for Medicare beneficiaries was it would save money. It was supposed to
get people into a more organized health care system; it was supposed to
encourage HMOs to provide preventive services so people would not get
as sick, and they would have a higher quality of life and less health
care costs.
Well, I am shocked, and I am certain most Members of Congress are
shocked, to find the administration finds it will cost $46 billion more
to provide health care services to those persons who are induced by the
benefits of this legislation to join an HMO than if they stayed where
they were. So one question we need to know is, why are we scaring
seniors into HMOs, when this is clearly harmful to the financial
structure of the Medicare Program?
The second point I hope the Finance Committee will review is the
prohibition inserted into this legislation against the administrator of
the program and the Secretary of the Department of Health and Human
Services, negotiating on behalf of Medicare beneficiaries to get the
best possible prices for prescription drugs. We have an almost
analogous situation, except the circumstances are reversed. The
Secretary of the Veterans' Administration is directed to negotiate for
the prescription drugs his largest hospital system in the world
provides. Guess what. He has negotiated so well the cost of
prescription drugs in a VA hospital is less than half of what it would
be if you bought the same drugs at retail at a local drugstore.
Can you believe the Congress of the United States has passed a
provision that prohibits the head of Health and Human Services from
getting the same good prices for our seniors?
Let me say, as an aside, we have seen some extremely distressing
numbers from the trustees of the Medicare Program. In fact, they
released a report within the last 30 days which indicated there has
been a 7-year shortening in the term--the years in which Medicare will
go insolvent. As recently as last year, it was estimated the program
would go insolvent in 2026. In 1 year, they have reduced that to 2019.
So we have a system that, we are being told by our best experts, in a
little more than 15 years is going to be insolvent. It seems to me
there ought to be a sense of urgency to get every possible relief we
can to this program so we do not deny the promise that has been made to
the American people, to the working men and women, when they reach
retirement age.

I believe one thing we can do immediately, in addition to reviewing
this issue of health maintenance organizations, is to give to the
Secretary of HHS and the administrator of the Medicare Program the
authority to negotiate for the hospital portion of prescription drugs.
We have passed a new prescription drug benefit for outpatients. But
since the beginning of Medicare, Medicare has paid for prescription
drugs that were dispensed in a hospital setting. We ought to do
everything we can, in light of the fact that 100 percent of the trust
funds for Medicare goes for part A--the hospital part--to lower the
cost of the hospitals. One immediate way we can do it is by assisting
the hospitals in the same way VA assists its hospitals, to lower the
cost of their prescription drugs.
I am hopeful the Finance Committee will hold a hearing on this
important issue before the Memorial Day recess. This would give us an
opportunity to fully understand the differences between the two
estimates, the implications of those differences, and the process by
which we learned at such a late date the administration was going to
project such an enormous difference. And most important, as a Congress,
we need to understand what happened and how the Congress can correct
the consequence of this deception.

jobs act

Ms. SNOWE. Mr. President, I rise today to support the Jumpstart Our
Business Strength Act, a bill that provides much-needed tax relief to
our Nation's manufacturing base in a manner that will not only protect
but will create jobs. Without question, passing this bipartisan
legislation will provide a major boost to the manufacturing sector of
our economy.
Indeed, this legislation is necessary because our country's
manufacturers are in desperate need of help. Not only has America been
hard hit by slow worldwide growth, but also has sustained significant
job losses during the last few years.
Although the economic statistics for March are a positive
improvement, there remains cause for concern when one considers the
profound erosion of U.S. manufacturing jobs in recent years. The damage
this sector has sustained is nothing short of stunning. From July 2000
through July 2003, nearly 2.8 million U.S. manufacturing jobs were
eliminated. Incredibly, New England lost more than 214,000
manufacturing jobs in the decade between June 1993 and June 2003.
According to the National Association of Manufacturers, between
January 2001 through January 2004, manufacturing employment in our
Nation declined by 16 percent. In New England, there was a 20 percent
decrease in manufacturing employment during that same time period. This
means that between January 2001 and January 2004, New England's
manufacturing sector employment declined by an alarming 28 percent
faster rate than it did nationally.
My home State of Maine has been shedding manufacturing jobs at an
alarming rate over the past decade--and all the more so in the past two
years. From January 1993 through June 2003, a 10\1/2\ year period,
Maine lost 18,900 manufacturing jobs. More specifically, from July 2000
to June 2003, Maine has lost 17,300 manufacturing jobs--the highest
loss of any State during that time period.
In addition to passing this legislation to reverse these trends, we
are also here to replace the Foreign Sales Corporation/Extraterritorial
Income, FSC/ETI, rules. Congress enacted these rules to make U.S.
exporters more competitive overseas by reducing their maximum income
tax rate on export income from 35 percent to about 29.75 percent. This
incentive is necessary to offset the disadvantage that U.S. exporters
face vis-a-vis foreign competitors who benefit from a territorial tax
regime. Nevertheless, the World Trade Organization, WTO, determined
that the FSC/ETI rules provide an impermissible export subsidy, meaning
Congress must repeal those rules or face over $4 billion in trade
sanctions. Those sanctions began to take effect March 1.
At the same time, repealing these rules will result in a nearly $50
billion tax increase on the manufacturing sector over the next ten
years. Consequently, we need to replace the FSC/ETI regime with an
appropriate substitute that not only complies with WTO rules but, more
importantly, protects our own manufacturing base.
Our objectives should therefore be clear: not only must we pass
legislation to comply with international trade law, but more
importantly, we need to offer our country's manufacturers with a
solution that will jumpstart their production and create jobs, and we
must do so right now. Were we to neglect this duty to ensure that our
nation's manufacturers are simply given the chance to compete on a
level playing field with foreign competitors, we would only be
compounding the current situation--a

[[Page S3913]]

result with which I am sure very few persons, particularly those
workers who have lost their jobs would be pleased.
Our task, then, is to identify the best way to ``reallocate'' the $50
billion in revenues that replacing the FSC/ETI rules will generate and
ensure that those funds continue to benefit their original
beneficiary--namely our manufacturers. For that reason, I am pleased
that the main component of this bill provides direct tax relief to the
manufacturing sector of our economy. By permitting manufacturers to
exclude from tax a portion of their income earned directly from
manufacturing operations that employ U.S. workers and are located in
the United States, we will continue to ensure that our Nation's
manufacturers are on a level playing field with foreign competitors,
and we will accelerate the overall economic recovery that is so
desperately needed and that is already underway.

This legislation, therefore, provides poignant, targeted tax relief
directly into the sector of our nation's economy that needs it most. In
short, this income tax rate reduction for manufacturers will reduce
their cost of doing business and increase their ability to compete in a
global economy. Consequently, these businesses will be able to reinvest
this savings directly into their operations, thereby increasing
productivity and creating jobs.
To achieve these results, it is essential that this tax relief must
be available for all manufacturers--regardless of entity
classification. As such, I along with several Senators worked hard
during the Finance Committee's markup to insist that this bill apply to
small businesses that operate in the form of S-corporations,
partnerships, limited liability companies, and sole-proprietorships.
With small business manufacturers constituting over 98 percent of our
Nation's manufacturing enterprises, employing 12 million people, and
supplying more than 50 percent of the value-added during U.S.
manufacturing, it is imperative that we not turn our backs on these
hard working taxpayers.
Despite the significance that small businesses play in our country's
economy, and despite the fact that not every manufacturer operates as a
corporation, some contend that in place of this bill's targeted
manufacturing relief, a more appropriate course of action would be to
provide an across-the-board 2 percent tax cut for all domestic
corporations--regardless if they are manufacturers.
I find this alternative problematic for two reasons. First, this
proposition forgets the reason why we are here in the first place--
namely to reallocate tax cuts that Congress provided specifically for
domestic manufacturers in an effort to maintain their international
competitiveness. Doesn't it make sense to ensure that all
manufacturers, which are the primary beneficiaries of the FSC/ETI
rules, continue to be the primary beneficiary of its replacement
legislation, particularly when the manufacturing sector of our economy
is already struggling to compete and preserve jobs?
After all, the main goal of this bill is to increase the
competitiveness of our manufacturing base and stop the current job loss
trend, meaning legislation that is not necessarily focused exclusively
on manufacturing sector might fall short of this goal. Rather, the
focus must remain on promoting domestic job creation, and the
legislation before us accomplishes this task much more effectively than
would an across-the-board tax cut that is exclusive to corporations.
In addition, an across-the-board corporate rate cut limits this tax
relief to only corporations--something that is simply unacceptable as
small businesses, many of which are S-corporations, limited liability
companies, partnerships, and sole-proprietorships, are the true engine
that drives this economy and are responsible for a majority of domestic
job creation. Indeed, small businesses account for 97.5 percent of
Maine businesses . . . 98 percent of America's manufacturing enterprise
. . . and contribute three-quarters of all new jobs nationwide. It is
therefore imperative that this legislation, which is intended to
``Jumpstart Our Business Strength,'' include all manufacturers,
particularly all small businesses, so that we continue this upward
trend and reinvigorate America's entrepreneurial spirit.
Along those lines, I am also pleased that Chairman Grassley
incorporated several other of my provisions during the Finance
Committee's markup of this bill. For example, current law permits small
businesses to expense, rather than depreciate, up to $100,000 spent on
equipment used in their trade or business. While this provision
encourages capital investments and stimulates economic growth, the
current phase-out limits the number of small businesses that can
qualify.
My provision already in this bill increases the phase out threshold--
thereby increasing the number of eligible small businesses for this
much-needed tax relief. In turn, these taxpayers will be provided with
greater incentive to expand their operations that will not only
increase productivity but ultimately create jobs.
Another one of my provisions included in this legislation is based on
my bill S. 885--The Small Business Investment Company Capital Access
Act of 2003. In short, this bill provides that certain government-
guaranteed debt capital of Debenture Small Business Investment
Companies, SBICs, is excluded from the definition of ``debt'' for
purposes of the unrelated businesses taxable income rules.

This change is necessary because under current law, potential tax-
exempt investors such as pension funds and universities are dissuaded
from investing in small businesses due to the tax liability that would
result from the SBICs. By eliminating this problem and expanding the
capital available for SBICs to invest in the nation's small businesses
at the modest rate of $1 million per year, this provision has the
potential to result in $500-$600 million of new capital investments in
SBICs, which in turn will create thousands of jobs each year.
Furthermore, this bill includes specific provisions at my urging that
will benefit greatly many taxpayers in my home State of Maine. In
committee, I worked to ensure that the tax relief in this bill was
extended to ``unprocessed softwood timber.'' The Softwood Lumber
industry, like paper and steel, has faced unfair trade from countries
that subsidize their products and dump them on the U.S. market. For
that reason, combined with the fact that this legislation is intended
to benefit manufacturers in general and not only exporters, it is
essential that this legislation extend this tax relief to the timber
industry.
Similarly, I urged Chairman Grassley to include a provision in this
legislation that would classify gains resulting from the sale or
exchange of timber as capital rather than ordinary. The crux of this
provision is to change the way in which capital gains are calculated
for timber by taking the amount of gain and subtracting three percent
for each year the timber was held. This change is necessary because
although individuals pay a maximum capital gains rate of 15 percent,
corporations must still pay a 35 percent rate. As such, this change
will reduce the rate of tax for corporations that sell timber,
therefore making the U.S. forest products industry more competitive
internationally and preserving domestic jobs.
In addition to these provisions that already are included in the
bill, I am working with Chairman Grassley on an amendment that I have
filed that will not only spur economic growth but that will also go a
long way in bolstering our national security. Currently, navy
shipbuilders are treated unfairly by the tax code because they are
required to pay tax based on an expected percentage of their profits.
This treatment is problematic because oftentimes, they do not receive
payment for several years, meaning the income tax has an overly
burdensome effect on their cash flow and their overall production.
My amendment would change this treatment by placing navy shipbuilders
on equal treatment with commercial shipbuilders in allowing them to pay
40 percent of their estimated income tax during the contract and the
remaining 60 percent upon completion of the contract so long as the
contract does not exceed 8 years. Importantly, this amendment does not
in any way affect the amount of tax that navy shipbuilders will pay;
rather, it simply affords a more equitable payment schedule to allow
these taxpayers to satisfy

[[Page S3914]]

more of their tax obligation at a time in which they have cash in hand.
I hope that in working with the chairman, we will find a way to address
this unfair disparity that is harming our Nation's naval shipbuilders.
Accordingly, I believe that the bill before us strikes the proper
balance of providing needed tax relief to the taxpayers in our economy
who need it most. It has taken a great deal of work to get us where we
are today, yet I firmly believe that providing targeted, affordable tax
relief to the manufacturing sector of our economy is certainly the
right path to choose in repealing the FSC/ETI rules.
The key here is that this bill simply reallocates the revenue that
repealing the FSC/ETI rules will raise and distributes it directly to
the primary beneficiaries of those rules--our country's manufacturers,
which is indeed appropriate as the manufacturing base is in dire need
of help.
While the legislation also simplifies the international tax code and
contains other miscellaneous tax cuts designed to create jobs, it does
so without increasing the federal budget deficit because it contains
tax offsets that will thwart taxpayers' participation in illegal tax
shelters and abusive leasing transactions. Consequently, unlike
previous tax bills, this legislation is revenue neutral. Therefore, not
only is this bill affordable, but it is much needed in order to bolster
our manufacturing base and enhance the competitiveness of the U.S.
based businesses.
Thank you, Mr. President.

medical liability reform

Mr. CHAFEE. Mr. President, earlier today I voted in favor of invoking
cloture on the motion to proceed to S. 2207, the Pregnancy and Trauma
Care Access Protection Act. My vote was not an endorsement of S. 2207
as it was introduced in the Senate. In fact, I have concerns about
various aspects of the bill--including the $250,000 cap on noneconomic
damages--and I anticipate supporting amendments to S. 2207 if the
Senate has an opportunity to fully debate this legislation.
However, I do believe that reform of the medical liability system
should be considered as part of a comprehensive response to surging
medical malpractice premiums that endanger Americans' access to quality
medical care by causing doctors to leave certain communities or to
cease offering critical services, such as obstetrical care. For this
reason, I voted for cloture on S. 2207 in an effort to move the debate
forward.
The PRESIDING OFFICER. The majority leader is recognized.

____________________