[Congressional Record Volume 151, Number 154 (Friday, November 18, 2005)]
[Senate]
[Pages S13302-S13304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            THE PATRIOT ACT

  Mr. SESSIONS. Mr. President, I would like to share some thoughts on 
the PATRIOT Act which, unfortunately, seems to have reached an impasse. 
That is distressing to me. I can't imagine that we have allowed this to 
happen. It is very disappointing. The American people need to 
understand how important the act is and how little it impacts the 
liberties which we cherish and how carefully it was crafted so as to 
not impact our liberties. I would like to share a few thoughts about 
that.
  Many of the key provisions of the act are scheduled to sunset at the 
end of this year. We will now presumably have to try to come back, in 
the few days we have in December, to complete the work. That is a very 
risky thing. We should complete this work today. Remember, those who do 
not sign up for this legislation, this conference report, or support it 
and do it today, giving us time to vote on it before we leave for the 
year, are risking letting the PATRIOT Act expire. And with its 
expiration, the walls that prohibited our governmental agencies from 
sharing critical intelligence information will go back up. Those are 
the very walls that were structured between the FBI and the CIA and 
other agencies that blocked the sharing of intelligence information 
that, in retrospect, we believe could possibly have allowed us to find 
out about and stop the 9/11 attacks. Perhaps not, but those walls, 
those failures to be able to share intelligence between those agencies 
were a critical factor in our lack of cooperation prior to 9/11.
  We passed the PATRIOT Act to fix that. It has worked extremely well. 
We should not go back to that time of the great walls.
  The PATRIOT Act has, without doubt, made us immeasurably safer. I 
fully support the act's provisions as originally passed. The main goal 
of the act was then, and remains today, very simple: to give Federal 
law enforcement officers, the FBI, and other agencies the same tools to 
fight terrorists and agents of foreign powers as the tools they have--
and virtually every law enforcement officer at the county, city and 
State level have--to fight other type criminals, drug lords, murderers, 
and even white collar tax evaders.
  I do not believe we acted too hastily in passing the PATRIOT Act. We 
were focused on this act. We made a commitment not to alter any of the 
great protections that we had. We negotiated it intentionally. People 
made the most outrageous allegations and had the most incredible 
misinformation about what was in it. By the time we completed the 
intense negotiations and debate for weeks, it was voted for in the 
Senate by an overwhelming bipartisan majority of 98 to 1. The House 
voted it with a huge majority also, 357 to 66. This year we passed the 
bill unanimously out of the Senate Judiciary Committee, a contentious 
committee, a committee which has civil libertarians on the right and 
the left. We voted it unanimously out of that committee, and the Senate 
passed it by unanimous consent. As originally drafted, the PATRIOT Act 
does nothing to harm the civil rights and liberties of Americans.

  I want to talk about that just a little. The Department of Justice 
inspector general, Glenn Fine, an appointee of President Clinton, has 
investigated all of the claims of civil rights and civil liberties 
violations received by the Department of Justice under the act. The 
independent inspector general found no incident in which the PATRIOT 
Act was used to abuse the civil rights or civil liberties of American 
citizens or anyone else.
  I do not believe portions of this act must be significantly revised, 
or have additional so-called protections added. And, I do not believe 
that sections of this act should be sunsetted. I will share with my 
colleagues the words of Attorney General Gonzales which he gave in a 
letter to our conferees as we tried to work out the final words for 
this act. He wrote to us and said--and no truer words have been spoken:

       The terrorist threat against this country will not sunset, 
     and neither should the tools we use to combat terrorism.

  Let me mention a few of the provisions of the act that give us the 
tools that are so important. One is the roving wiretap provision. 
Roving or multipoint wiretaps have been available to criminal 
investigators for many years. But section 206 of the PATRIOT Act made 
sure that this tool was also available for fighting terrorism. It 
allows the FISA court, the special foreign intelligence court, to 
authorize a wiretap to move from device to device as the target of the 
wiretap, the target of the foreign intelligence investigation, changes 
modes of communication.
  So let me tell you, though this has been approved as a legitimate law 
enforcement tool, and should continue to be a law enforcement tool, it 
is not that easy to obtain, you really have to prove you need a roving 
wiretap. I was a Federal prosecutor for over 15 years, a U.S. attorney, 
and I personally supervised and prosecuted a lot of cases. Let me just 
tell you how it works.
  In my 12 years as U.S. attorney for the Southern District of Alabama, 
I think maybe we had two wiretaps. These are very difficult to obtain. 
You have to have probable cause to believe that a person is involved in 
criminal activity. You have to identify how he is using communication 
devices and then submit to the court a memorandum--and the ones that I 
have seen were 60 to 100 pages of facts--to prove to the judge's 
satisfaction that we are not snooping on somebody who is innocent, but 
we are actually attempting to understand the scope of major criminal 
activity.
  The way it is monitored and managed is incredibly important because 
you have to listen to it constantly. If they talk about their family, 
you are supposed to turn it off. You have to have people listening all 
the time so that you can catch the evidence you are seeking. It is very 
expensive. You don't do it unless it is very important.
  So I have to say, Mr. President, it is so important in a terrorism 
investigation that agents have this tool when they are on to a group or 
entity that is not just selling drugs, as bad as that is, but are 
intent on blowing up and killing thousands of American citizens. And 
when you are on to them and they start using this phone and that phone 
and that phone and you have run back to court with your 60-page 
memorandum and find a judge and set up a hearing date and all that, by 
that time he has maybe gone to another phone, a cell phone, a pay 
phone, a phone in a motel, wherever he moves.
  So it is perfectly appropriate to have a wiretap if it is approved by 
a court

[[Page S13303]]

upon sufficient showing of probable cause. That is no doubt. All this 
does is to say that you can get the ability to intercept communications 
on that individual and then can use whatever phone he is using. 
Previously, the tradition was that you would have the wiretap on a 
single telephone number. This makes it clear that the court decisions 
allowing roving wiretaps are the law of the land, and it also creates a 
standard as to how they should be approved and utilized.
  So I think that is an important tool for investigators. Can you 
imagine how important that is to an investigative team that may be 
working on a dangerous terrorist cell? It could be the difference of 
life and death for thousands of American citizens.
  Let me mention another provision of the act. The objections to this 
one are so amazing to me. It just breaks my heart that people seem to 
have as much confusion about it as they do. This is the delayed notice 
search warrant. Under section 213, the PATRIOT Act created a nationally 
uniform process and standard for obtaining delayed notice search 
warrants. The act's standard applies to delayed notice warrants sought 
in any type of investigation, not just terrorism investigations. 
Delayed notice warrants are explained by the August 29, 2005 letter 
from the Department of Justice. They said:

       A delayed-notice warrant differs from an ordinary warrant 
     only in that the judge authorizes the officer executing the 
     warrant to wait for a limited period of time before notifying 
     the subject of the warrant because immediate notice would 
     have an adverse result as defined by statute.

  We must remember that delayed notice search warrants have been around 
for decades. As a matter of fact, I was reading a book not long ago 
about an organized crime matter that occurred years ago and they 
referred to a delayed notice search warrant. They didn't have any 
statutory standards for it at that time, but they asked the judge to 
allow them to delay notice, and the judge allowed it, and that process 
has been approved constitutionally.
  The PATRIOT Act did not create any new authority or close any gap in 
delayed notice law because there was really no gap to close. It simply 
set a uniform statutory standard for getting permission to delay 
notice.

  It is absolutely false to imply, as many have done, that these 
warrants are a way for the Government to ``sneak and peak'' into a 
civilian's home, papers, or effects without ever telling them. The 
truth is that they have to be told, but there is a delay between the 
search and when they are told. The critics have continued to suggest 
that these warrants are done without approval of a court, they want you 
to believe that because of the PATRIOT Act, the government can go into 
your house without a warrant and see what you have and never tell 
anybody that they have been there.
  Nothing could be further from the truth. That is why this bill passed 
98 to 1. We didn't write those kinds of broad provisions in this bill. 
We maintained the classic standard of approval of a search warrant, the 
probable cause standard and all that goes with it. The PATRIOT Act 
simply set an objective uniform standard for delayed notice.
  Why is this important? Well, I could go into detail, but I would just 
ask you to imagine that one is surveiling a group that you have 
probable cause to believe is going to try to blow up an area of the 
United States and that you have probable cause to believe that they 
have planned to make a bomb. You could go in this residence while 
nobody is there pursuant to a search warrant on probable cause issued 
by a Federal judge and conduct a search. Normally, the only difference 
in these warrants is that you would normally tell the person whose 
house is searched immediately, and immediately report back to the 
Court. Here you have make a report but you don't have to tell the 
person you have searched their house until a later date set by the 
judge.
  You may find in their house bombmaking materials papers on how to 
make a bomb, explosive devices, triggers, and those kinds of things. 
And it may be that from that you could obtain information from their 
house on who else was involved in the cell, to identify the entire 
ring, the entire cell, and arrest them all at once at an appropriate 
time. If you have to tell the person immediately, in some cases you 
risk tipping the whole group off and having them spread out like a 
covey of quail. That is what too often happens if you don't have this 
kind of tool. It is critically important to investigators trying to 
protect the United States of America that we preserve this section of 
the PATRIOT Act.
  Section 215 of the PATRIOT Act allows the FBI to seek an order for 
the production of tangible things--books, records, papers, documents, 
and other items for an investigation to obtain foreign intelligence 
information. Basically, they are a form of subpoena authority. Section 
215 orders must be preapproved by a judge and cannot be used to 
investigate ordinary crimes or even domestic terrorism. Opponents of 
section 215 have tried to create the impression that the FBI is using 
215 to visit libraries nationwide in some sort of dragnet to check the 
reading records of everyday American citizens.
  That is just not so. They have no interest in that whatsoever. Why 
would they? They are not doing that. I did get a letter from Rebecca 
Mitchell, director of the Alabama Public Library Service, who was 
critical of some of her colleagues who have been objecting to these 
provisions in the act. Her August 15 letter to me stated:

       I want to personally thank up for your strong leadership 
     stand on the PATRIOT Act. Our libraries should not be a tool 
     for terrorism. I know you have received negative comments 
     from the American library association on your stand but this 
     is not the opinion of most librarians in our State. Please 
     continue to fight to keep our Nation safe.

  Please understand that no provision of the PATRIOT Act, including 
section 215, even mentions libraries or is directed at libraries. 
Nevertheless, as Director Mitchell points out, it is important that 
library records remain obtainable as one of the tangible records that 
section 215 can reach. Intelligence or criminal investigators may have 
very good and legitimate reasons for extending to library or bookstore 
records. For example, investigators may need to show that a suspect has 
purchased a book giving instructions on how to build a bomb.
  I prosecuted a guy who had already had one book written about him, 
and after the prosecution, they made a second movie about him. We 
conducted a search warrant, a lawful search warrant that was upheld. We 
found a book called ``Death Dealers Manual,'' describing how to kill 
people; and a book called ``Deadly Poison,'' describing how to make 
deadly poison. That was great evidence to use to show that he was more 
than casually interested in murdering people.
  Andrew McCarthy, a former Federal prosecutor who led the 1995 
terrorism case against Sheik Omar Abdel Rahman, recently elaborated on 
this point in an article in National Review Online. This is what he 
said:

       Hard experience--won in the course of a string of terrorism 
     trials since 1993 [that he had personally been involved in] 
     instructs us that it would be folly to preclude the 
     Government a priori from access to any broad categories of 
     business records. Reading material, we now know, can be 
     highly relevant in terrorism cases. People who build bombs 
     tend to have booklets and pamphlets on bomb making.

  For heavens' sake, I would add, of course they do.

       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 that may be on it. . . . 
     If he [a defendant] 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--
     and rightly so.
  Of course, she was Attorney General under President Clinton.
  So this occurs in every courtroom in America. Documents are obtained 
through subpoena. It is stunningly dangerous that we would not 
understand this concept and why it is needed in the context of 
terrorism investigations.
  I will add just a few additional thoughts on obtaining records and 
documents. An American citizen has an expectation of privacy and it is 
the right of an American under the Constitution to be free from 
unreasonable--unreasonable--search and seizures is guaranteed by our 
Constitution.
  Where do you have privacy rights? If you give someone your personal 
papers,

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you turn them over to them, do you still have privacy rights if they 
were to read them? Certainly not. So the law has developed many years 
in this fashion. You have an expectation of privacy in those areas of 
your life where you have control--the inside of your automobile, the 
trunk of your car, the glove compartment of your car, your desk at your 
office, any part of your house, your garage, an outbuilding around your 
house that you have exclusive control over. Those are areas over which 
you have exclusive control, and you have an expectation of privacy. 
People cannot go into those places and seize anything you have there 
without probable cause or else it would be an unreasonable search and 
seizure.
  But if you go to a motel and fill out a motel receipt and give it to 
the motel operator, it is not yours. It is the motel's document, it is 
a business record. If you go to a bank and you open an account and they 
keep all kinds of records of that account, they are the bank's records, 
not yours. Every person in that bank has access to those documents and 
records. If you make a telephone call, the words you use are yours, and 
you have an expectation of privacy between you and the person who 
receives the call. But the fact that you make a telephone call and the 
telephone company prints out a billing statement that has telephone 
numbers on it, that is available to anybody who works in the telephone 
company. That is not your record, it is their record. So you do not 
have the same privacy expectations, that is all.
  The court has always understood that. This has never been in dispute. 
Every district attorney in America, all kinds of law enforcement 
officers, State and Federal, through subpoenas, without court approval, 
have been able to obtain those kinds of documents if the documents are 
relevant to an investigation they are undertaking.
  I received telephone toll records in drug cases I prosecuted. These 
kinds of records could be relevant in a terrorist case, make no mistake 
about it. You check the telephone numbers they call, and they are 
calling a certain number in New York City. Maybe you have records from 
another person, and they are calling that same number at various times 
of the day, and maybe right before a terrorist attack occurred or right 
after an attack occurred, phone calls are going back and forth. That is 
real evidence of who may be involved in a terrorist cell or criminal 
drug enterprise. That is how investigators work every day. That is what 
juries expect to see when cases are prosecuted. To have this great fear 
that there is something in this act that in a significant way alters 
those classical powers of investigators to find out those who may be 
trying to kill us--it is just not true. It is an exaggeration. It is a 
concern that is not real.
  This PATRIOT Act is about to expire. It would be an abdication of our 
responsibility as the Senate not to move this bill forward before the 
end of the year. Let's move it now. If we need to stay over the 
weekend, I am willing to do so. We can stay next week; I am willing to 
do so. It is important that we not allow this legislation to fail. I 
encourage the leaders on both sides to work toward achieving that goal.

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