[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
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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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