[Congressional Record Volume 150, Number 73 (Friday, May 21, 2004)]
[Senate]
[Pages S6096-S6099]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself, Mr. Miller, Mr. Cornyn, Mr. Sessions, 
        Mr. Chambliss, Mr. Graham of South Carolina, Mr. Nickles, Mr. 
        McConnell, Mr. Inhofe, and Mr. Roberts):
  S. 2476. A bill to amend the USA PATRIOT Act to repeal the sunsets; 
to the Committee on the Judiciary.
  Mr. KYL. Mr. President, I rise today to introduce a bill that would 
repeal 
Sec. 224 of the USA Patriot Act. Section 224 provides that 16 different 
parts of the Patriot Act ``shall cease to have effect on December 31, 
2005.'' The authorities subject to this sunset include some of the most 
important provisions of the Act. They are sections 201, wiretapping in 
terrorism cases; 202, wiretapping in computer fraud and abuse felony 
case; 203(b) sharing wiretap information; 203(d), sharing foreign 
intelligence information; 204, Foreign Intelligence Surveillance Act 
(FISA) pen register/trap and trace exceptions; 206, roving FISA 
wiretaps; 207, duration of FISA surveillance of non-United States 
persons who are agents of a foreign power; 209, seizure of voice-mail 
messages pursuant to warrants; 212, emergency disclosure of electronic 
surveillance; 214, FISA pen register/ trap and trace authority; 215, 
FISA access to tangible items; 217, interception of computer trespasser 
communications; 218, purpose for FISA orders; 220, nationwide service 
of search warrants for electronic evidence; 223, civil liability and 
discipline for privacy violations; and 225, provider immunity for FISA 
wiretap assistance.
  Rather than praise the Patriot Act myself, I would like to quote 
others who have done so. First, I would note that the President has 
called on Congress to renew all parts of the Patriot Act that are 
scheduled to expire next year. As he has emphasized, ``to abandon the 
Patriot Act would deprive law enforcement and intelligence officers of 
needed tools in the war on terror, and demonstrate willful blindness to 
a continuing threat.''
  FBI Director Robert Mueller, in a hearing before the Judiciary 
Committee yesterday, also voiced strong support for renewing the 
Patriot Act. As he noted, ``for over two and a half years, the PATRIOT 
Act has proved extraordinarily beneficial in the war on terrorism and 
has changed the way the FBI does business. Many of our counterterrorism 
successes, in fact, are the direct results of provisions included in 
the Act, a number of which are scheduled to `sunset' at the end of next 
year. I strongly believe it is vital to our national security to keep 
each of these provisions intact.''
  Similarly, in an April 14 field hearing before the Judiciary 
Committee, Deputy Attorney General James Comey stated that the Patriot 
Act ``has made us immeasurably safer.'' He also responded to the 
allegation, occasionally made by some critics, that the Patriot Act was 
passed too quickly. He replied that ``the USA Patriot Act was not 
rushed, it actually came 10 years too late.''
  The importance of the Patriot Act to American security also has drawn 
the attention of the 9/11 Commission. Former New Jersey Governor Thomas 
Kean has noted that the Commission has had ``witness after witness tell 
us that the Patriot Act has been very, very helpful, and if the Patriot 
Act, or portions of it, had been in place before 9/11, that would have 
been very helpful.''

[[Page S6097]]

  This praise has not been limited to the Republicans who have 
participated in the Commission's proceedings. Former Attorney General 
Janet Reno, for example, testified before the Commission that 
``everything that's been done in the Patriot Act has been helpful.''
  Nor is President Bush alone among the major candidates for President 
this year in hailing the importance of the Patriot Act. Indeed, his 
principal rival for the office, Senator Kerry, recently claimed that he 
would go even further than the President. According to an April 25 
story in the Los Angeles Times, Senator Kerry's spokesman insists that 
``it is the challenger, not the president, who brings the most muscular 
view of the Patriot Act into the race.'' Senator Kerry's presidential 
campaign website even includes a ``Plan to Restore American Security,'' 
which lists as its number-one priority to ``improve intelligence 
capabilities.'' Senator Kerry states that he ``understands that 
intelligence information is the key to disrupting and dismantling 
terrorist organizations and that we need to improve our intelligence 
capabilities, both domestically and internationally, in order to win 
the war on global terrorism.''
  One reform implemented by the Patriot Act that Attorney General Reno 
and others have particularly emphasized is its authorization for 
information sharing. Because this part of the Patriot Act is often 
praised but infrequently described in detail, I would like to quote the 
following accounts of pre-Patriot barriers to information sharing, and 
of the investigative successes that the removal of those barriers has 
made possible.
  The FISA Court of Review decision upholding the Patriot Act's 
authorization for information sharing, In re: Sealed Case, 310 F.3d 
717,


    F.I.S. Ct. Rev. 2002 , describes the origins of the pre-Patriot 
                               barriers:

       Apparently to avoid running afoul of the primary purpose 
     test used by some courts, the 1995 [Attorney General] 
     Procedures [(``Procedures for Contacts Between the FBI and 
     the Criminal Division Concerning Foreign Intelligence and 
     Foreign Counterintelligence Investigations'')] limited 
     contacts between the FBI and the Criminal Division in cases 
     where FISA surveillance or searches were being conducted by 
     the FBI for foreign intelligence (FI) or foreign 
     counterintelligence (FCI) purposes. The procedures state that 
     ``the FBI and Criminal Division should ensure that advice 
     intended to preserve the option of a criminal prosecution 
     does not inadvertently result in either the fact or the 
     appearance of the Criminal Division's directing or 
     controlling the FI or FCI investigation toward law 
     enforcement objectives.'' Although these procedures provided 
     for significant information sharing and coordination between 
     criminal and FI or FCI investigations, based at least in part 
     on the ``directing or controlling'' language, they eventually 
     came to be narrowly interpreted within the Department of 
     Justice, and most particularly by OIPR, as requiring OIPR to 
     act as a ``wall'' to prevent the FBI intelligence officials 
     from communicating with the Criminal Division regarding 
     ongoing FI or FCI investigations. Thus, the focus became the 
     nature of the underlying investigation, rather than the 
     general purpose of the surveillance. Once prosecution of the 
     target was being considered, the procedures, as interpreted 
     by OIPR in light of the case law, prevented the Criminal 
     Division from providing any meaningful advice to the FBI.''

In re: Sealed Case, 310 F.3d at 727-28 citations omitted.
  FBI Director Mueller, in his testimony yesterday, provided a concrete 
account of the impact that these information-sharing barriers had on 
intelligence investigations:

       Prior to September 11, an [FBI] Agent investigating the 
     intelligence side of a terrorism case was barred from 
     discussing the case with an Agent across the hall who was 
     working the criminal side of that same investigation. For 
     instance, if a court-ordered criminal wiretap turned up 
     intelligence information, the criminal investigator could not 
     share that information with the intelligence investigator--he 
     could not even suggest that the intelligence investigator 
     should seek a wiretap to collect the information for himself. 
     If the criminal investigator served a grand jury subpoena to 
     a suspect's bank, he could not divulge any information found 
     in those bank records to the intelligence investigator. 
     Instead, the intelligence investigator would have to issue a 
     National Security Letter in order to procure that same 
     information.

  Chicago U.S. Attorney Patrick Fitzgerald, in an October 21, 2003 
hearing before the Senate Judiciary Committee, described how these pre-
Patriot information-sharing limits undercut one potentially vital 
terror investigation. Mr. Fitzgerald discussed the grand-jury testimony 
of Wadih el Hage, a key member of the Al Qaeda cell in Nairobi who, in 
September 1997, was apprehended while changing flights in New York 
City. Federal prosecutors subpoenaed el Hage from the airport to 
testify before a Federal grand jury in Manhattan. Mr. Fitzgerald 
described how el Hage:

       [P]rovided some information of potential use to the 
     intelligence community--including potential leads as to the 
     location of his confederate Harun and the location of Harun's 
     files in Kenya. Unfortunately, as el Hage left the grand-jury 
     room, we knew that * * * [because of pre-Patriot 
     restrictions] we would not be permitted to share the grand-
     jury information with the intelligence community. * * * 
     Fortunately, we found a way to address the problem that in 
     most other cases would not work. Upon request, el Hage 
     voluntarily agreed to be debriefed by an FBI agent outside 
     the grand-jury room * * *. El Hage then repeated the essence 
     of what he told the grand jury to the FBI agent, including 
     his purported leads to on the location of Harun and his 
     files. The FBI then lawfully shared the information with the 
     intelligence community. In essence, we solved the problem by 
     obtaining the consent of a since-convicted terrorist. We do 
     not want to have to rely on the consent of al Qaeda 
     terrorists to address the gaps in our national security.

  Mr. Fitzgerald went on to describe how, in August 1998, the American 
Embassy in Nairobi was bombed by al Qaeda. Investigators quickly 
learned that el Hage's associate Harun was responsible. In this 
particular case, investigators had been able to work around 
information-sharing limits because of an al Qaeda terrorist's 
willingness to be interviewed by the FBI, and even with this 
information U.S. agents were not able to stop a terrorist attack. The 
pre-Patriot limits were not a decisive factor in blocking U.S. 
intelligence agents from preventing the Kenya bombing. But they could 
have been. As U.S. Attorney Fitzgerald concluded, ``we should not have 
to wait for people to die with no explanation [other] than that 
interpretations of the law blocked the sharing of specific information 
that probably [c]ould have saved [American lives].''
  As Attorney General Reno noted in her testimony before the 9/11 
Commission, ``these restrictions [on information sharing] have now been 
eliminated as part of the Patriot Act.'' Director Mueller, in his 
Judiciary Committee testimony yesterday, described the impact of this 
change:

       The removal of the ``wall'' has allowed government 
     investigators to share information freely. Now, criminal 
     investigative information that contains foreign intelligence 
     or counterintelligence, including grand jury and wiretap 
     information, can be shared with intelligence officials. This 
     increased ability to share information has disrupted 
     terrorist operations in their early stages--such as the 
     successful dismantling of the ``Portland Seven'' terror 
     cell--and has led to numerous arrests, prosecutions, and 
     convictions in terrorism cases.
       In essence, prior to September 11th, criminal and 
     intelligence investigators were attempting to put together a 
     complex jigsaw puzzle at separate tables. The Patriot Act has 
     fundamentally changed the way we do business. Today, those 
     investigators sit at the same table and work together on one 
     team. They share leads. They fuse information. Instead of 
     conducting parallel investigations, they are fully integrated 
     into one joint investigation.

  These Patriot Act changes can directly be credited with some 
important recent successes in the war on terror. For example, in 
February 2003, Federal prosecutors arrested and indicted Sami Al-Arian 
and seven other suspected terrorists. The 50-count indictment indicated 
that Al-Arian was the financial director and the North American leader 
of Palestinian Islamic Jihad, a terrorist group that has killed more 
than 100 people in and around Israel, including two Americans. Al-Arian 
wired money to groups in Israel that paid money to the families of 
terrorists who carried out suicide bombings. He also founded three 
organizations in Florida which, among other things, drafted final wills 
and testaments for suicide bombers.
  Incredibly, through much of the 1990s, Al-Arian was secretly watched 
by two different sets of U.S. investigators. The FBI had been 
conducting a criminal probe of Al-Arian since 1995. Meanwhile, 
intelligence agents had monitored Al-Arian since the late 1980s. 
Because of pre-Patriot restrictions, the two sets of investigators were 
not able to share information and were not aware of the full extent of 
each other's investigations. It was only after the FISA Court of Review 
upheld Patriot

[[Page S6098]]

Act Sec. 203's information-sharing provisions in November 2002 that 
intelligence officials were able to show their files to prosecutors. 
Several months after this Patriot provision was upheld and made 
effective, prosecutors arrested and indicted Al-Arian and put an end to 
his activities.
  Of course, the provisions of the Patriot Act subject to the Sec. 224 
sunset include much more than just the three provisions that facilitate 
information sharing. Although I will not discuss all of those 
provisions in detail today--some of which have never been 
controversial--I would like to discuss one provision that has been a 
particular focus of attacks on the Patriot Act.
  Section 215 of the Patriot Act allows the FBI to seek an order for 
``the production of tangible things (including books, records, papers, 
documents, and other items) for an investigation to obtain foreign 
intelligence information.'' FISA defines ``foreign intelligence'' as 
information relating to foreign espionage, foreign sabotage, or 
international terrorism, or information respecting a foreign power that 
relates to U.S. national security or foreign policy. Thus Sec. 215 
cannot be used to investigate ordinary crimes or even domestic 
terrorism. And in every case, a Sec. 215 order must be approved by a 
judge.
  Alhough Sec. 215 is basically a form of subpoena authority, like that 
allowed for numerous other types of investigation indeed, it is more 
tightly restricted than other types of subpoenas because it must be 
pre-approved by a judge Sec. 215 has been heavily targeted by Patriot 
Act critics. Chief among their complaints is that Sec. 215 could be 
used to obtain records from bookstores or libraries. Some of these 
critics have even alleged that Sec. 215 would allow the FBI to 
investigate someone simply because of the books that he borrows from a 
library.
  Section 215 could in fact be used to obtain library records, though 
neither Sec. 215 nor any other provision of the Patriot Act 
specifically mentions libraries or is directed at libraries. 
Nevertheless, Sec. 215 does authorize court orders to produce tangible 
records--which could include library records.
  Where the critics are wrong is in suggesting that a Sec. 215 order 
could be obtained because of the books that someone reads or the 
websites that he visits. Sec. 215 allows no such thing. Instead, 
Sec. 215 allows an order to obtain ``tangible things'' as part of an 
investigation to ``obtain foreign intelligence information''--
information relating to foreign espionage or terrorism or relating to a 
foreign government or group and national security. By requiring a judge 
to approve such an order, Sec. 215 ensures that these orders will not 
be used for an improper purpose. And as an added protection against 
abuse, the Patriot Act also requires that the FBI ``fully inform'' the 
House and Senate Intelligence Committees on all use of Sec. 215 every 
six months. These checks and safeguards leave FBI agents little room 
for the types of witch hunts that Patriot Act critics conjure up.
  Further, it bears mention that federal investigators already use an 
authority very similar to Sec. 215 the grand jury subpoena--to obtain 
bookstore records. As Deputy AG Comey recently emphasized in a letter 
that he submitted to the editor of the New York Times, ``orders for 
records under [Sec. 215] are more closely scrutinized and more 
difficult to obtain than ordinary grand jury supoenas, which can 
require production of the very same records, but without judicial 
approval.'' Similarly, in a September 11, 2003 editorial, ``Patriot 
(Act) Games,'' the Washington Post noted that investigative authority 
to review library records ``existed prior to the Patriot Act; the law 
extends it to national security investigations, which isn't 
unreasonable.''
  Finally, I would emphasize that an intelligence or criminal 
investigation may have good and legitimate reasons for extending to 
library or bookstore records. For example, in a recent domestic 
terrorism case, Federal investigators sought to prove that a suspected 
bomber had built a particularly unusual detonator that had been used in 
several bombings. The investigators used a grand-jury subpoena to show 
that the suspect had purchased a book giving instructions on how to 
build such a detonator.
  Moreover, we should not forget that terrorists and spies historically 
have used libraries to plan and carry out activities that threaten U.S. 
national security. We know, for example, that some terrorists have used 
computers at public libraries to use the internet and communicate by 
email. It would be unwise to place libraries and bookstores beyond the 
scope of anti-terror investigations.
  Andrew McCarthy, a former federal prosecutor who led the 1995 
terrorism case against Sheik Omar Abdel Rahman, recently elaborated on 
this point in a November 13, 2003 article in National Review Online, 
``Patriot Act Under Siege'':

       [H]ard experience--won in the course of a string of 
     terrorism trials since 1993--instructs us that it would be 
     folly to preclude the government a priori from access to any 
     broad categories of business record. Reading material, we now 
     know, can be highly relevant in terrorism cases. People who 
     build bombs tend to have books and pamphlets on bomb making. 
     Terrorist leaders often possess literature announcing the 
     animating principles of their organizations in a tone 
     tailored to potential recruits. This type of evidence is a 
     staple of virtually every terrorism investigation--both for 
     what it suggests on its face and for the forensic 
     significance of whose fingerprints may be on it. No one is 
     convicted for having it--jurors are Americans too, and they'd 
     not long stand for the odious notion that one should be 
     imprisoned for the mere act of thinking.
       When a defendant pleads ``not guilty,'' however, he is 
     saying: ``I put the government to its proof on every element 
     of the crime, including that I acted with criminal purport.'' 
     Prosecutors must establish beyond a reasonable doubt not only 
     that the terrorist engaged in acts but did so intending 
     execrable consequences. If an accused says the precursor 
     components he covertly amassed were for innocent use, is it 
     not relevant that he has just borrowed a book that covers 
     explosives manufacture? If he claims unfamiliarity with the 
     tenets of violent jihad, should a jury be barred from 
     learning that his paws have yellowed numerous publications on 
     the subject? Such evidence was standard fare throughout Janet 
     Reno's tenure as attorney general--and rightly so.

  In his testimony yesterday, FBI Director Mueller also described the 
importance to antiterror investigations of some of the other Patriot 
Act authorities subject to expire under Sec. 224. For example, Director 
Mueller noted that:

       The PATRIOT Act gave federal judges the authority to issue 
     search warrants that are valid outside the issuing judge's 
     district in terrorism investigations. In the past, a court 
     could only issue a search warrant for premises within the 
     same judicial district--yet our investigations of terrorist 
     networks often span multiple districts. The PATRIOT Act 
     streamlined this process, making it possible for judges in 
     districts where activities related to terrorism may have 
     occurred to issue search warrants applicable outside their 
     immediate districts.
       In addition, the PATRIOT Act permits similar search 
     warrants for electronic evidence such as email. In the past, 
     for example, if an Agent in one district needed to obtain a 
     search warrant for a subject's email account, but the 
     Internet service provider (ISP) was located in another 
     district, he or she would have to contact an AUSA and Agent 
     in the second district, brief them on the details of the 
     investigation, and ask them to appear before a judge to 
     obtain a search warrant--simply because the ISP was 
     physically based in another district. Thanks to the PATRIOT 
     Act, this frustrating and time-consuming process can be 
     averted without reducing judicial oversight. Today, a judge 
     anywhere in the U.S. can issue a search warrant for a 
     subject's email, no matter where the ISP is based.
       [Further], the PATRIOT Act updated the law to match current 
     technology, so that we no longer have to fight a 21st-century 
     battle with antiquated weapons. Terrorists exploit modern 
     technology such as the Internet and cell phones to conduct 
     and conceal their activities. The PATRIOT Act leveled the 
     playing field, allowing investigators to adapt to modern 
     techniques. For example, the PATRIOT Act clarified our 
     ability to use court-ordered pen registers and trap-and-trace 
     devices to track Internet communications. The Act also 
     enabled us to seek court-approved roving wiretaps, which 
     allow investigators to conduct electronic surveillance on a 
     particular suspect, not a particular telephone this allows 
     them to continuously monitor subjects without having to 
     return to the court.

  All of the authorities described by Director Mueller obviously are 
critical to antiterrorism investigations--and all will expire next year 
unless Congress acts to repeal Sec. 224.
  In responding to some of the accusations of Patriot Act critics, I do 
not mean to dismiss the importance of either civil liberties or of 
independent oversight of the federal government. I would simply 
emphasize that the Patriot Act is carefully crafted legislation that 
both guarantees protection for civil liberties and is subject to ample 
oversight. I would note, in this vein, that in a report filed in 
January

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2004, Department of Justice Inspector General Glenn A. Fine--an 
appointee of President Clinton described the results of his 
investigation of all recent civil-rights and civil-liberties complaints 
received by the Justice Department. The Inspector General found no 
incidents in which the Patriot Act was used to abuse civil rights or 
civil liberties.
  The Patriot Act's provisions for independent oversight of the new 
authorities created by the Act were described in detail by Deputy AG 
Comey in his April 14, 2004 testimony before the Judiciary Committee. 
Mr. Comey noted:

       First, the USA PATRIOT Act preserves the historic role of 
     courts by ensuring that the vital role of judicial oversight 
     is not diminished. For example, the provision for delayed 
     notice for search warrants requires judicial approval. In 
     addition, under the Act, investigators cannot obtain a FISA 
     pen register unless they apply for and receive permission 
     from federal court. The USA PATRIOT Act actually goes farther 
     to protect privacy than that Constitution requires, as the 
     Supreme Court has long held that law enforcement authorities 
     are not constitutionally required to obtain court approval 
     before installing a pen register. Furthermore, a court order 
     is required to compel production of business records, in 
     national security investigations.
       Second, the USA PATRIOT Act respects important 
     congressional oversight by placing new reporting requirements 
     on the Department. Every six months, the Attorney General is 
     required to report to Congress the number of times section 
     215 has been utilized, as well as to inform Congress 
     concerning all electronic surveillance under the Foreign 
     Intelligence Surveillance Act. Under section 1001 of the USA 
     PATRIOT Act, Congress receives a semiannual report from the 
     Department's Inspector General detailing any abuses of civil 
     rights and civil liberties by employees or officials of the 
     Department of Justice. It is important to point out that in 
     the Inspector General's most recent report to Congress, he 
     reported that his office has received no complaints alleging 
     misconduct by Department employees related to the use of a 
     substantive provision of the USA PATRIOT Act.
       Finally, the USA PATRIOT Act fosters public oversight of 
     the Department. In addition to the role of the Inspector 
     General to review complaints alleging abuses of civil 
     liberties and civil rights, the Act provides a cause of 
     action for individuals aggrieved by any willful violation of 
     Title III or certain sections of FISA. To date, no civil 
     actions have been filed under this provision.

  The United States has had some important successes in the war on 
terror so far. Worldwide, more than half of al Qaeda's senior 
leadership has been captured or killed. More than 3,000 al Qaeda 
operatives have been incapacitated. Within the United States, 4 
different terrorist cells have been broken up--cells located in 
Buffalo, Detroit, Seattle, and Portland. 284 individuals have been 
criminally charged to date, and 149 individuals have been convicted or 
pleaded guilty, including: shoe bomber Richard Reid, six members of the 
Buffalo terrorist cell, two members of the Detroit cell, Ohio truck 
driver Iyman Faris, and U.S.-born Taliban John Walker Lindh.
  Patriot-aided criminal prosecutions also have contributed to U.S. 
intelligence efforts to learn more about terrorist organizations. 
Facing long prison terms, some apprehended terrorist have chosen to 
cooperate with the U.S. government. So far, the Justice Department has 
obtained plea agreements from 15 individuals who are now cooperating 
with terror investigations. One individual has given the U.S. 
information about weapons stored by terrorists in the United States. 
Another cooperating terrorist has given U.S. investigators information 
about locations in the U.S. that are being scouted or cased for 
potential attacks by al Qaeda.
  The Patriot Act has played a major role in what U.S. antiterror 
investigations have accomplished so far. And it is clear that we will 
continue to need the authorities created by the Patriot Act into the 
foreseeable future. For these reasons, I am pleased to introduce today 
with my colleagues a bill to repeal Sec. 224 and make the Patriot Act 
permanent.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2476

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

     SECTION 1. REPEAL OF USA PATRIOT ACT SUNSETS.

       Section 224 of the USA PATRIOT Act (18 U.S.C. 2510 note) is 
     repealed.
                                 ______