[Congressional Record Volume 151, Number 113 (Monday, September 12, 2005)]
[Senate]
[Pages S9939-S9940]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN:
  S. 1680. A bill to reform the issuance of national security letters; 
to the Committee on the Judiciary.
  Mr. CORNYN. Mr. President, it has been nearly 4 years since the 
terrorist attacks of September 11, 2001. In the days, weeks, and months 
since that day, the American people have braced themselves for the 
possibility of another terrorist attack on our homeland. After all, we 
know all too well that al Qaeda is a stealthy, sophisticated, and 
patient enemy, and that its leadership is extremely motivated to launch 
another devastating attack on American citizens and American soil.
  In fact, outside the United States, al Qaeda and affiliates of al 
Qaeda have continued to be remarkably active, responsible for numerous 
terrorist attacks over the last few years, spanning the globe from 
Pakistan to Bali to Spain to London.
  It is precisely because al Qaeda is so aggressive, so motivated, and 
so demonstrably hostile to America that I am so grateful that, to date, 
al Qaeda still has not successfully launched another terrorist attack 
on our soil. There are undoubtedly many reasons for this. First and 
foremost, I am profoundly thankful to the brave men and women of our 
Armed Forces, who fight the terrorists abroad so that we do not have to 
face them at home. I also firmly believe that our efforts to strengthen 
anti-terrorism and law enforcement tools right here at home have much 
to do with this record of success and peace in our homeland to date.
  The war on terrorism must be fought aggressively--but consistent with 
the protection of civil rights and civil liberties. Whenever real civil 
liberties problems do arise, we must learn about them right away, so 
that we can fix them swiftly.
  Last year, Federal judge struck down a portion of the Electronic 
Communications Privacy Act of 1986. This law balanced the national 
interest in protecting electronic communications privacy against the 
legitimate needs of national security, by establishing a procedure for 
obtaining electronic communications records in certain national 
security investigations through the use of so-called ``national 
security letters.'' The USA PATRIOT Act amended the law to make clear 
that such letters could be issued in terrorism investigations as well.
  This provision was passed by the Senate on a voice vote, and shortly 
thereafter it passed the House by unanimous consent.
  The primary reason the court struck down this provision was that the 
right to judicial review was not expressly written into the text of the 
law. It is important to note that the ability to scrutinize the 
issuance of national security letters was not actually disputed by the 
government. To the contrary, the Justice Department agreed that there 
should be judicial review. The court simply concluded that the 1986 law 
was not drafted with sufficient clarity to authorize such review.
  I have previously introduced legislation to remedy the defects noted 
by the District Judge. That legislation amended the Electronic 
Communications Privacy Act to make explicit the

[[Page S9940]]

availability of judicial review to examine national security letters. 
However, national security letters are also available outside the Title 
18 context. For instance, Title 15 allows the government to obtain 
consumer information maintained by consumer reporting agencies; Title 
12 allows the government to obtain the financial records maintained by 
financial institutions; and Title 50 allows the government to obtain 
records about persons with access to classified information who may 
have disclosed classified information to a foreign power.
  It is important to make sure that the right to judicial review is 
statutorily available in all national security letter contexts. The 
bill I am introducing today expressly authorizes a recipient to 
challenge any national security letter in court. It also: details the 
procedure the government must follow to substantiate its use of a 
national security letter; allows the government to present classified 
information to the court so that it can properly evaluate the 
challenge; and specifies that a recipient of a national security letter 
may consult with legal counsel about its obligations.
  I hope that this legislation will be enacted in the same bipartisan 
spirit that put both the Electronic Communications Privacy Act and the 
USA PATRIOT Act on the books.
                                 ______