[Congressional Record Volume 151, Number 154 (Friday, November 18, 2005)]
[Senate]
[Pages S13297-S13300]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            THE PATRIOT ACT

  Mr. KYL. Mr. President, I want to get to the matter I came to speak 
on, the PATRIOT Act.
  The Senator from Massachusetts spoke to us about having respect for 
one of our colleagues in the other body who is, in fact, a patriot and 
who certainly should never be called a coward.
  I also want to ask that same deference to those in the Defense 
Department and others who were doing their duty for our country, who 
could have been in the private sector making a lot of money and taking 
care of their families but chose to serve their country in another way 
in later life by acting on behalf of all of us in matters of national 
security. The Secretary of Defense, Don Rumsfeld, Paul Wolfowitz, Doug 
Fife, who headed the office I spoke of, these are patriots. And for 
anyone to suggest that someone like Doug Fife or Don Rumsfeld or Paul 
Wolfowitz were misleading anyone is, frankly, about as low as you can 
get. And even loose words such as ``unlawful'' have been thrown about.
  This is a very bad state of affairs that we have come to when that is 
the kind of discourse we have in talking about people who have served 
our country honorably. I hope my colleagues will join me in trying to 
elevate the rhetoric rather than taking it down further. And that 
applies to everybody--Democrat and Republican Members of Congress, or 
the administration.
  I came to talk about the PATRIOT Act. I would like to make some 
comments because we are in the middle of a big debate in the Senate and 
House about the reauthorization of the PATRIOT Act. If we don't 
reauthorize the PATRIOT Act, all of the tools that we have given to our 
law enforcement and intelligence community to help us win the war on 
terror are going to--not quite, but most of those tools will cease to 
exist. They will expire. That is why we have to reauthorize it.
  Just as it is important for us to give the men and women in the 
military the tools they need in the missions we send them on, the war 
on terror, so, too, it is for us to ensure our law enforcement and our 
intelligence people have the tools they need to carry out the mission 
that we ask of them.
  In the war on terror, intelligence and the ability to use it in the 
law enforcement community are critical to our success.
  One of the greatest things we accomplished after 9/11 in passing the 
PATRIOT Act was to tear down the wall that had been created between our 
intelligence-gathering organizations and law enforcement. They couldn't 
talk to each other. One could gather information, but they couldn't 
give it to the other, and vice versa.
  As a result, neither were able to do their job in getting information 
about terrorists and putting out that information to proper and good 
use.
  There is virtually no disagreement that I know of that this part of 
the PATRIOT Act has been critical to our success since 9/11. Yet there 
are those on both sides of the aisle in this body who are threatening 
to hold up the reauthorization of the PATRIOT Act because they haven't 
gotten their way on every little thing that they want, and some of them 
don't even know what the conference committee has been negotiating. I 
am on that conference committee and I know what we have discussed, and 
I know what is still a matter of issue out there.
  I want to talk a little bit about the PATRIOT Act because there is a 
great deal of ignorance about what this important tool does for our war 
on terror. And we cannot be ignorant, even though it is a matter of law 
and a little bit complicated. We don't have the luxury of being 
ignorant about this. We have to understand it to appreciate it.
  I will speak to that for a little bit.
  I believe, like some great controversies of the time, history books 
will record that the controversy over the PATRIOT Act was actually 
something we will look back on and say, What was all the fuss about? It 
is a little bit like when President Reagan talked about tearing down 
the wall and calling the Soviets the ``Evil Empire.'' There was great 
handwringing. This was not going to be good for our foreign policy. We 
look back on it now and say, What was all the fuss about? He was right. 
It was a good thing.
  Those who are threatening to hold up the reauthorization of the 
PATRIOT Act should have pretty much the same words spoken to them about 
the wall. This time we are talking about the wall between intelligence 
and law enforcement. I say to them, ``Tear down this wall.'' We did it 
in the PATRIOT Act. They are about to let the PATRIOT Act expire 
because they have some view that every little thing they want has not 
gotten accomplished in the PATRIOT Act.
  This is important business. For those who are threatening to prevent 
the reauthorization of the PATRIOT Act, I challenge them to come to the 
Senate today, tomorrow. I will be here. Let's have the debate.
  What are the big deals in the PATRIOT Act? The biggest is the wall 
coming down, as I said. There is no disagreement about that. Yet, it is 
going to go right back up if we do not act.
  The second provision in the PATRIOT Act that people have focused on 
is the so-called section 215 which allows a FISC, Foreign Intelligence 
Surveillance Court, to issue subpoenas to produce business records. 
That authority has been in the law for a long time. But we added it to 
the PATRIOT Act in order to allow the FBI to seek an order from this 
special court that was created for:

       . . . the production of tangible things (including books, 
     records, papers, documents, and other items) for an 
     investigation to obtain foreign intelligence information.

  Not to obtain foreign intelligence information. And FISC defines 
``foreign intelligence'' as information relating to foreign espionage, 
foreign sabotage, or international terrorism.
  Section 215 is basically a form of subpoena authority, such as that 
allowed for numerous other types of investigation. A subpoena is merely 
a request for particular information. Unlike a warrant--and this is 
important--a subpoena does not allow a government agent to enter 
somebody's property and take things. It is only a request. If the 
recipient objects, the Government must go to court and defend the 
subpoena and seek an order for its enforcement. Most Federal agencies 
have the authority to issue subpoenas, and many agencies have multiple 
subpoena authorities.
  The Justice Department has identified over 335 different subpoena 
authorities in the United States Code. One can hardly contend that 
although the Federal Government can use subpoenas to investigate 
Mohammed Atta if it suspects he is committing Medicare fraud that it 
should not be allowed to use the same powers if it suspects he is 
planning to fly airplanes into buildings. What sense would that make?
  Some critics argue that most of the existing authorities are 
different because section 215 subpoenas do not relate to heavily 
regulated industries

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like some of the other subpoenas. But even subpoenas issued to 
investigate the industries are used to request information from persons 
outside the industry. For example, the Small Business Administration is 
authorized to use subpoenas to aid its fraud investigations. When it 
uses that subpoena, it can and often does request information from 
others doing business--from anyone doing business--with the recipient 
of the SBA loan.
  In one important way, the authority in section 215 of the PATRIOT Act 
is even narrower than the authority given by most subpoena statutes. 
This is critical. Unlike these other authorities, a section 215 order 
must be preapproved by a judge. Many people who debate the PATRIOT Act 
ignore this or do not know it. They say, you do not even have to get a 
court order. It must be preapproved by a judge. Even grand jury 
subpoenas, despite their name, are simply issued by a prosecutor 
conducting a grand jury investigation with no judicial review prior to 
their issuance.
  Chief among the complaints made by critics of this section is that it 
could be used to obtain records from bookstores or libraries. Some of 
these critics have even alleged that section 215 would allow the FBI to 
investigate someone simply because of the book he borrows from the 
library. Section 215 could, in fact, be used to obtain library records, 
though neither it nor any other provision of the PATRIOT Act 
specifically mentioned libraries or in any way is directed at 
libraries. Section 215 does authorize court orders to produce tangible 
records and that could theoretically include library records.
  Where the critics are wrong is in suggesting a section 215 order 
could be obtained because of the books that someone reads or Web sites 
he visits. Section 215 allows no such thing. Instead, it 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, section 215 assures 
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 of Representatives and the Senate every 6 
months. These checks and safeguards leave FBI agents little room for 
the types of witch hunts the PATRIOT Act critics conjure up. Any use of 
the subpoenas, in other words, must be reported to us.
  Further, and I ask Members to think about this for a moment, 
especially in view of some of the criticism that has been leveled at 
the act, I would like to emphasize there are very good and legitimate 
reasons why an intelligence or criminal investigation might extend to a 
bookstore or a library. One example former Deputy Attorney General 
Comey has cited is the investigation of the Unabomber, Ted Kaczynski. 
Remember that the Unabomber's brother had relayed to Federal agents his 
suspicion that Ted Kaczynski was behind this decades-long string of 
mail bomb attacks. At the time, the Unabomber had recently published 
this manifesto which cited several obscure and ancient texts. In order 
to confirm the brother's suspicions, Federal agents subpoenaed Ted 
Kaczynski's library records and discovered that, in fact, he had 
checked out these same obscure texts cited in the manifesto.
  Section 215 also could have been used directly to investigate the 
perpetrators of the September 11 attacks. How so? We now know that in 
August of 2001 individuals using Internet accounts registered to Nawaf 
al Hazmi and Khalid al Midhar used public access to computers in the 
library of a State college in New Jersey. The computers in the library 
were used to shop for and review airline tickets on an Internet travel 
reservation site. Al Hazmi and Al Midhar were hijackers aboard American 
Airlines flight 77 which took off from Dulles Airport and crashed into 
the Pentagon.

  The last documented visit to the library occurred on August 20, 2001. 
On that occasion, records indicate that a person using Al Hazmi's 
account used the library's computer to review September 11 reservations 
he had previously booked.
  In August of 2001, Federal agents knew that al Midhar and al Hazmi 
had entered the United States. They initiated a search for these 
individuals because they knew they were associated with al-Qaida. Had 
the investigators caught the trail of these individuals--and by the 
way, one of the criticisms in the 9/11 Commission Report was that our 
Government did not adequately pursue these two individuals; that there 
was a lot of evidence they could have pieced together. They didn't 
follow it. They let them out of their sights, at which point they were 
gone. They knew they were here, but they could not find them. Had they 
followed the trail of the individual and had the PATRIOT Act already 
been law, the investigators would have likely used a section 215 to use 
the library records to see the Internet trail, and history might well 
be different.
  Finally, over half a dozen reports submitted by the Inspector General 
of the Department of Justice have uncovered no instances of abuse 
involving section 215. The latest public report indicates this 
authority has been used approximately three dozen times--not all 
related to libraries, of course. Section 215 is not used very often. 
But we know that when Federal agents do use it, it is for an important 
purpose. I cannot imagine that any one of us would want to stop Federal 
agents from using section 215 in the way it has been used.
  There were those who said we should have some additional restrictions 
on section 215; even though it is an important tool, we need it further 
restricted. So the conference committee said, all right, let's first 
make sure we have a new statutory relevance standard so there is no 
question the information obtained has got to be relevant to the foreign 
intelligence investigation.
  Another concession made was that there would be a three-part 
additional test which would be put in place to presume relevancy if you 
can satisfy this three-part test. It is going to further complicate 
things, further delay things. It is not going to be easy for the 
Justice Department to prove.
  Moreover, another layer of bureaucracy was imposed with so-called 
minimization standards. The Department of Justice would be required to 
put into regulation limits on how long the material could be kept, who 
it could be given to, and so on and so on.
  Those who had concerns about section 215 brought those concerns 
forward and those have been negotiated. I know of no further issue 
relating to section 215 in the conference that Members of either side 
of the aisle have brought forward. So those of my colleagues who have 
said we are going to filibuster the conference report on the PATRIOT 
Act because, among other things, it has this section about library 
records. They ought to get informed about the section, and they also 
ought to appreciate the fact that the people who have negotiated this 
on both sides of the aisle, on both sides of the Capitol, have 
concluded they are now done with this section. We have put everything 
in there we need to to further ensure it can never be abused, but we 
want to retain it as an important part of our tools in fighting 
terrorism.
  The second of the three sections I discuss is section 213, the 
delayed notice searches. This is the so-called ``sneak and peek'' 
search. It is an unfortunate name. Section 213 of the act merely 
codifies judicial common law, allowing investigators to delay giving 
notice to the target of a search that a search warrant has been 
executed against him. Section 213 allows delayed notice of a search for 
evidence of any Federal criminal offense if a Federal court finds 
reasonable cause to believe that immediate notice may result in 
endangering the life or physical safety of an individual, flight from 
prosecution, destruction, or tampering with evidence, intimidation of 
potential witnesses, or would otherwise seriously jeopardize the 
investigation. Notice still must be provided within a reasonable period 
of the warrant's execution, though this period may be extended for good 
cause.
  The ACLU, in particular, has been critical of section 213. One might 
think an organization seeking to find fault with this section that 
deals with the war on terrorism might focus on something other than 
this particular PATRIOT provision because all it does is codify 
authority that has been allowed

[[Page S13299]]

by the Federal courts for several decades. This is not new. The ACLU 
alleges that section 213 expands the Government's ability to search 
private property without notice to the owner. It also states that 
section 213:

       . . . mark[s] a sea of change in the way search warrants 
     are executed in the United States.

  And it finally has charged that as a result of the section 213 
authorization of delayed notice, ``you may never know what the 
government has done.''
  None of these allegations is true. First, the target of a delayed 
notice search will always eventually ``know what the government has 
done'' because section 213 expressly requires that the Government give 
the target notice of the execution of the warrant ``within a reasonable 
period of its execution.'' Section 213 clearly and explicitly 
authorized only delayed notice, not no notice.
  Further, section 213 neither ``expands the government's ability'' to 
delay notice nor can it even remotely be described as a ``sea change'' 
in the law. Twenty-five years ago the U.S. Supreme Court established 
that ``covert entries are constitutional in some circumstances, at 
least if they are made pursuant to a warrant.'' That citation is Dalia 
v. U.S. Congress first authorized delayed notice searches 35 years ago 
in the 1968 Omnibus Crime Control Act. These searches repeatedly have 
been upheld as constitutional.
  In 1990, the U.S. Court of Appeals for the Second Circuit held:

       Certain times of searching or surveillance depend for their 
     success on the absence of premature disclosure. The use of a 
     wiretap, or a ``bug,'' or a pen register, or a video camera 
     would likely produce little evidence of wrongdoing if the 
     wrongdoers knew in advance that their conversation or actions 
     would be monitored. When nondisclosure of the authorized 
     search is essential to its success, neither Rule 41 nor the 
     Fourth Amendment prohibits covert entry.

  You can see why this is so. There are certain circumstances where you 
cannot let the ``bad guy'' know you are listening in on his 
conversations.
  To the extent the ACLU intends to suggest that delayed notice 
searches are unconstitutional, it bears mention that the U.S. Supreme 
Court has already addressed that view. I mentioned the 1979 Dalia case 
in which the Supreme Court described that argument as ``frivolous.''
  If anyone would still wish to argue that section 213 is 
controversial, I would note that on this point, too, the conference 
committee has resolved the only issue that was in contention. The 
Senate passed a bill that substantially reenacted section 213 with no 
restrictions on authority. The bill was, by the way, reported out of 
the Judiciary Committee on a unanimous rollcall vote, which means even 
the most vocal critics agreed to it, and it later passed the full 
Senate by unanimous consent. The only debate in the conference over 
section 213 is what the presumptive time limit should be for 
investigators to return to court to renew the delay-in-notice 
provision.
  The Senate bill included a presumptive delay of 7 days, the House 
bill a presumptive delay of 180 days, with no provision for longer 
delay in particular cases. The conference committee has agreed to 30 
days. I suggest that is an eminently reasonable compromise. And for all 
the huffing and puffing about so-called ``sneak and peek,'' this is 
what the real debate has come down to.
  I have one more matter, and I will conclude very quickly, Mr. 
President.
  The other section, the third section, is this one on roving wiretaps. 
It simply allows terrorism investigators to obtain a wiretap for any 
phone that a suspect uses rather than limiting the wiretap to a 
particular phone. Criminal investigations already have this authority. 
The PATRIOT Act simply updates the law to give terror investigators the 
same authority. As I said, this particular section is no longer in 
controversy. To my knowledge, all questions have been resolved in the 
conference committee on this.
  Mr. President, I conclude by noting that the conferees have made a 
very good-faith effort to iron out differences, to add additional 
protections, preventions of abuse. What it boils down to is we have a 
law that finally gives law enforcement and the intelligence community 
the tools they need to fight terrorism. It brings down the wall that 
prevented them from cooperating in the past. It provides adequate 
safeguards to ensure that no liberties are being diminished. It applies 
only to the investigation of terrorism and crimes by terrorists against 
the citizens of the United States. It would be a pity if we did not 
move forward to reauthorize this important piece of legislation before 
it expires.
  I renew my challenge to my colleagues. If anyone wants to discuss 
this, or debate it, I will be here today. I will be here tomorrow. For 
that matter, I will be here Monday if they want to do it. It is 
important we get this done and not leave here until we have given our 
law enforcement officials the tools they need to protect us.
  Mr. LEAHY. Mr. President, the current consideration by the Congress 
of a rewrite of the USA PATRIOT Act is a significant event. These are 
important issues, and they have become increasingly important to the 
American people.
  This bill, more than any other, must have the confidence of the 
American people. I understand that and Chairman Specter understands 
that. I commend the chairman for his commitment to work in a bipartisan 
manner, both during the committee process and throughout the House-
Senate conference. He and I agree with the vast majority of Americans 
that a reauthorization of the PATRIOT Act's expiring provisions must be 
accomplished in a bipartisan process, not in a bitter, partisan battle.
  The PATRIOT Act suffers from an image problem. This perception 
problem stems in large measure because of the rhetoric, practices and 
secrecy of the Bush administration and the Ashcroft Justice Department. 
The antidote is clear and it is simple--less secrecy, more 
congressional oversight, more judicial review and an adjusted balance 
that better protects the rights and liberties of all Americans.
  That is what we produced here in the Senate when first the Senate 
Judiciary Committee and then the Senate unanimously adopted our PATRIOT 
Act reauthorization bill. We worked together and we did so in a timely 
manner, completing our work in July. The Senate appointed conferees 
immediately. Regrettably, the House did not follow suit. They delayed 
more than 3 months until November 9, just last week and just a week 
before Congress was scheduled to recess. We lost 3 months that we could 
have used to find common ground and create a better bill. 
Unfortunately, the House Republican leadership played games with the 
PATRIOT Act while the clock was ticking.
  Even last week, with conferees newly appointed by the House, I was 
hopeful that in our limited time, we could negotiate in good faith and 
reach a bipartisan, bicameral agreement. We made some progress over the 
weekend on important issues, reaching a tentative agreement on improved 
reporting requirements that would shine some light on the use of 
certain surveillance techniques. I believed that we were close to 
striking a reasonable balance on the core civil liberties issues raised 
by the PATRIOT Act.
  But on Sunday, the Bush administration stepped in and, with the 
acquiescence of congressional Republicans, the bipartisan negotiations 
were abruptly ended. The curtain came down. Democratic participation 
was excluded from the process. As a result the tentative agreements 
were scuttled based on Bush administration demands.
  Further impeding bipartisan progress, the conference report was being 
loaded up with controversial provisions that had nothing to do with the 
PATRIOT Act, terrorism, or anything in either the House or Senate-
passed bills. The PATRIOT Act suddenly was being used as a vehicle of 
convenience to pass laws that could not be passed on their own merit. 
This overreaching by the House Republican conferees caused more time to 
be lost, and because of the ill-advised choices that were made late in 
this process, the conference report is not what it should be.
  The needless and divisive chapter in the late stages of what should 
have been--can what could have been--an open and bipartisan conference 
threatens to undermine national consensus on this bill. Sadly, it also 
threatens national confidence in how we as a Congress can best address 
these important issues. Before the Bush administration butted in and 
grabbed the reins, we were close to a compromise that could have been 
acceptable to almost all members of Congress and to the American 
public. This is not that conference

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report. I am not sure that this conference report can win the 
confidence of the American people. Rather than seek common ground with 
the Congress and with the American people that we represent, the Bush 
administration and Republican conferees have taken and abused their 
power and taken terrible advantage.
  Just 2 months ago, we observed the fourth anniversary of the horrific 
attacks of September 11, 2001. In the aftermath of the attacks, 
Congress moved quickly to pass anti-terrorism legislation. The fires 
were still smoldering at Ground Zero when the USA PATRIOT Act became 
law on October 30, 2001, just 6 weeks after the attacks.
  Many of us here today worked together in a spirit of bipartisan unity 
and resolve to craft a bill that we had hoped would make us safer as a 
nation. Freedom and security are always in tension in our society, and 
especially so in those somber weeks after the attacks, but we tried our 
best to strike the right balance. One of the fruits of that 
bipartisanship was the sunset provisions contained in the PATRIOT Act. 
These sunsets have allowed us some opportunity to obtain key 
information Americans have a right to know, and to revisit these 
matters to add more sunshine and oversight. Those sunsets were 
supported by Dick Armey, the Republican House majority leader and by me 
in the Senate an unlikely duo I concede, but in this case, a successful 
and productive alliance that proved to benefit the American people. We 
prevailed, thank goodness.
  Sadly, the Bush administration and Republican congressional 
leadership has largely squandered this opportunity to refine the 
PATRIOT Act. Instead, they are insisting on a continuing assault on 
habeas corpus rights and adding other extraneous matters. Working with 
Chairman Specter, we are insisting on modifications to the conference 
report that will make it more protective of civil liberties and 
increase opportunities for oversight, including a 4-year sunset.
  I thank Senators Kennedy, Rockefeller and Levin for their efforts to 
improve the draft circulated to us this week. I know that some Senate 
Republican conferees were not satisfied that the draft fully protected 
Americans' civil liberties and thank them for working to improve this 
important measure. I hope that the other conferees will work with us to 
arrive at a conference report that we all can support and that we can 
take to the American people together.
  If the Bush administration would cooperate with us--the people's 
representatives--we will be better able to refine the authorities and 
uses of national security letters and the other tools provided in the 
law. Without that cooperation, with the veil of secrecy cloaking so 
much activity, neither Congress nor the American people will know or 
trust what the government is doing.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I thank the Senator from Arizona for 
the passion and commitment he has to the protection of our law 
enforcement officers, who are doing a great job for us. I appreciate 
what he is saying and doing.

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