[Congressional Record Volume 151, Number 158 (Monday, December 12, 2005)]
[Senate]
[Pages S13438-S13443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            THE PATRIOT ACT

  Mr. SPECTER. Mr. President, I have sought recognition to describe the 
conference report on the PATRIOT Act, which was agreed to by conferees 
in the House of Representatives and the Senate last Thursday. This is 
the first time the Senate has been in session since that time, and the 
first opportunity for me to make a floor statement outlining the 
provisions of the conference report.
  I begin by thanking the distinguished chairman of the House Judiciary 
Committee, Congressman James Sensenbrenner, for his cooperation and 
cordiality in working through many very difficult issues to come to 
agreement between the House and Senate conferees.
  There has been general agreement that reauthorization of the PATRIOT 
Act is necessary as an important tool in the fight against terrorism. 
One item which the PATRIOT Act accomplished, which was enacted shortly 
after 3,000 Americans were killed and many wounded on 9/11, was 
elimination of the so-called wall, so that evidence gathered under the 
Foreign Intelligence Surveillance Act could be used in a criminal 
prosecution. Prior to the enactment of that provision, if there was 
evidence obtained under the Foreign Intelligence Surveillance Act, 
which has a slightly lesser standard than probable cause used for a 
criminal search warrant, it could not be used for a criminal case. 
There is no disagreement, to my knowledge, with the proposition that 
this provision is very important and ought to be retained.

[[Page S13439]]

  Similarly, other provisions of the PATRIOT Act have been conceded to 
be important: the provisions on obtaining records, the provisions on 
wiretaps--although subject to some limitations, and I voted against 
that provision when the bill was up shortly after the 9/11 attacks in 
2001--and provisions on delayed notice warrants. And there are many 
provisions which there has been general agreement ought to be retained.
  There have been questions raised, and appropriately so, about the 
sweep of the PATRIOT Act and whether it could accomplish its designed 
purposes while providing more protection for civil rights and civil 
liberties. A good bit of the public debate--most of the public debate--
has been focused on those provisions. The conference report makes vast 
improvements on existing law on items such as obtaining business 
records, the so-called library record provision; on the delayed notice 
provisions; and on roving wiretaps. There are limitations now imposed 
on national security letters, which have been in effect for decades. 
They were not created by the PATRIOT Act, but the reauthorization of 
the PATRIOT Act has provided a forum for reconsideration of the way 
national security letters are used and to provide safeguards for civil 
liberties.
  The principal concern expressed publicly about the PATRIOT Act is the 
ability of law enforcement to obtain business records--it has been 
commonly referred to as the ``library records provision.'' There is 
great concern about obtaining somebody's library records by an agent 
unilaterally, who makes the certification that the records are sought 
for an investigation, and the agent on his or her own goes and obtains 
the records. The conference report is a vast improvement on existing 
law because the conference report imposes judicial review, not quite up 
to the standard of probable cause for a search and seizure warrant or 
probable cause for an arrest warrant but cause shown.
  The statute provides that the court may issue an order for records 
only on ``a statement of facts showing that there are reasonable 
grounds to believe that the tangible things sought are relevant to an 
authorized investigation to protect against international terrorism.''
  Having judicial intervention between the assertions of the law 
enforcement officer and the invasion of privacy to get these records is 
the common law standard; that is, the American way of protecting civil 
liberties. So the impartial magistrate is interposed between the police 
and law enforcement official and the citizen.
  The Senate bill provided that relevance would be established only on 
a showing one of three things:
  No. 1, that the records pertain to ``a foreign power or an agent of a 
foreign power; two, the activities of a suspected agent of a foreign 
power who is the subject of an authorized investigation; or three, an 
individual in contact with or known to a suspected agent of a foreign 
power.''
  The conference report makes an important change to the standard from 
the Senate bill. This change was made after a closed-door briefing with 
the Department of Justice was able to show strong reasons to allow the 
judge to authorize obtaining records where one of those three 
conditions had not been met, where there was a terrorism investigation 
underway, and those records were crucial to moving ahead with that 
terrorism investigation.
  I believe, while it would be preferable to have the Senate version, 
that this provision is reasonable and realistic and is certainly not a 
substantial basis, not really any basis at all, for rejecting the 
conference report.
  The next most highly publicized concern has been on the so-called 
national security letter. I repeat, the national security letter was 
not created by the PATRIOT Act passed shortly after 9/11 but has been 
an investigative tool for decades. Under current law, there is no 
explicit right on the part of someone who has been served with a 
national security letter to do anything about it except to comply. The 
conclusion has been reached that the recipient may not make a 
disclosure of that national security letter.
  The conference report is a vast improvement. I have used the word 
``vast'' repeatedly because it makes a very extensive improvement by 
enabling the recipient to go to a lawyer. It explicitly says you can go 
to your lawyer and you can challenge the national security letter and 
you can go to court. You can have the national security letter quashed 
if it is unreasonable, oppressive, or otherwise contrary to law. When 
you go to court, you can get permission to tell the target of the 
national security letter about the national security letter, if the 
judge finds that doing so would not harm national security, interfere 
with an investigation or diplomatic relations, or risk death or bodily 
injury to another person.
  The judicial review is somewhat limited in that there is a 
presumption that the certification by high-ranking officials of the 
Department of Justice or the FBI or the requesting agency will be 
conclusive on whether the disclosure will be harmful to national 
security or diplomatic relations.
  What was not understood, really misunderstood, during the course of 
the deliberation in the conference, was that the Senate bill, which was 
widely heralded as being a remarkably good bill, agreed to by all 18 
members of the Judiciary Committee--and it is very unusual to have the 
Judiciary Committee agree unanimously on anything, let alone on a 
matter of civil rights, but that was done. Then, when the bill was 
forwarded to the floor, it went on our so-called unanimous consent 
calendar, which means it was passed by unanimous consent without any 
floor debate. It is highly unusual and perhaps unprecedented on a bill 
of this magnitude to be on the unanimous consent calendar because 
people all thought it was fine. That requires the absence of an 
objection. Any one Senator can prevent it going on to the unanimous 
consent calendar. That means 100 Senators have to in effect have 
acquiesced.
  The provision in the Senate bill was that ``in reviewing a 
nondisclosure requirement, a certification by the government that the 
disclosure may endanger the national security of the United States or 
interfere with diplomatic relations will be treated as conclusive 
unless the court finds that the certification was made in bad faith.''
  As I said before, it was misunderstood and not noted by the conferees 
as to that provision in the Senate bill which drew only praise, not an 
objection. But there was an objection raised to a provision in the 
conference report which is more protective of civil liberties than that 
which was in the Senate report.
  The conference report specifies ``if at the time of the petition, the 
Attorney General, the Deputy Attorney General, an Assistant Attorney 
General, or the Director of the Federal Bureau of Investigation, or in 
the case of a request by a department agency, or instrumentality of the 
Federal Government other than the Department of Justice, the head or 
deputy head of such department, agency, or instrumentality''--here 
comes the critical language--``certifies that disclosure may endanger 
the national security of the United States or interfere with diplomatic 
relations, such certification shall be treated as conclusive unless the 
court finds that the certification was made in bad faith.''
  So the conference report is more protective of civil rights than was 
the Senate bill, which was so widely praised, because in the Senate 
bill you had to have a certification by the Government, which means any 
agent of the Government. But in the conference report, it was ratcheted 
up to require certification by these high-ranking officials, such as 
the Attorney General or the head of the FBI or the department heads or 
Assistant Attorneys General, all of whom are subject to Senate 
confirmation.
  I think, had the misconception not prevailed about the presence of 
that provision in the Senate bill, our conference would have been a lot 
shorter, and I think it fair to say, not with absolute certainty but 
fair to say, it would have had more signatures on the conference 
report.
  But in any event, the conference report gives much more by way of 
protection of civil liberties than is present under existing law.
  The third issue which was taken up to enhance the protection of civil 
liberties is the delayed notice provision, or the so-called ``sneak and 
peek provision.'' This involves a situation where

[[Page S13440]]

there would be a warrant to search someone's house or apartment 
surreptitiously; that is, without giving notice to the individual.
  Under existing law, under the PATRIOT Act, the Government must notify 
the individual within a reasonable period of time. Reasonable has no 
definitive limit, is vague and indefinite; it is open to very wide 
interpretation as to what constitutes reasonable. The conference report 
imposes a maximum time limit of 30 days, which can be extended on cause 
shown if certain specific criteria were met.
  The Senate bill had a 7-day notice requirement. The House bill had a 
180-day requirement, and the compromise was 30 days. So most of the 
provisions of the Senate bill or most of the substance of the Senate 
bill was agreed to. Now you have a set time limit, unless cause is 
shown to extend it; again, what I would characterize fairly as a vast 
improvement. Then there are provisions under the roving wiretap laws. I 
have always been concerned about the intrusion of privacy under 
wiretaps. In my days as district attorney, I was the sole district 
attorney among the 67 Pennsylvania counties to oppose legislation on 
wiretaps. When the PATRIOT bill came to the Senate shortly after 
September 11, I was one of the few Senators who voted against the 
wiretap provision.

  Law enforcement has made a case in support of a roving wiretap and 
the PATRIOT Act conference report protects civil liberties additionally 
by requiring that there be an identification of the individual, a 
description, and that there be a showing that the individual will seek 
to try to evade detection of the wiretap so that on that provision, as 
well, there is an enhancement of civil liberties.
  Perhaps the most contentious issue that was taken up by the 
conference was the issue of the sunset. The House of Representatives 
asked for a sunset of 10 years in their bill. The Senate bill has a 
sunset of 4 years. The House proposed, in a very forceful way, a 
compromise at 7 years, splitting the difference. The sunset provision 
is very important because all of the provisions of the PATRIOT Act 
expire at the end of the sunset unless there is a renewal. This puts 
law enforcement on notice that there will be oversight by the Judiciary 
Committees of both Houses, and the Senate Judiciary Committee has been 
very diligent on oversight and is committed to extensive oversight on 
this bill however it comes out.
  There were very long, detailed, extensive negotiations. I thank the 
White House. I thank the President, who was personally acquainted with 
this issue. I had the opportunity to travel with him to Philadelphia 
earlier today where he made a speech about Iraq. He said to me, it was 
my expectation if we fulfilled your request for assistance on getting a 
4-year sunset, there would be a little more receptivity for the bill. I 
am paraphrasing what was involved. This issue went to the highest level 
of the Federal Government. We had tremendous assistance from the White 
House on the sunset provision. Not only was the President conversant 
with it, as I have stated, but the Vice President was involved in the 
negotiations, the Chief of Staff, Andrew Card, whom I talked to on a 
number of occasions, and others in the White House. This 4-year sunset 
is a major, major, major improvement for civil liberties interests in 
that these provisions will be in existence not for 10 years, 7 years, 
6, 5, but only for 4 years.
  In essence, we have a bill which is not perfect. I don't know that we 
deal in perfection in the legislative process. The whole art of 
politics and legislation is the art of accommodation, conciliation, and 
compromise, which is a worthwhile concept. That is the way we work in a 
democracy. No one gets their way entirely.
  If I had my preference, we would have taken the Senate bill lock, 
stock, and barrel, and that would have been it. But we have a bicameral 
legislature and considerations and issues raised by the House of 
Representatives, I think again, are fairly raised and fairly stated. I 
explicitly compliment Chairman Sensenbrenner for his cooperation and 
his good work on this bill.
  That is, believe it or not, a somewhat abbreviated version of this 
legislation, this complex legislation.
  We had a letter from six of our colleagues--Senator Craig, Senator 
Sununu, Senator Murkowski, Senator Durbin, Senator Feingold, Senator 
Salazar--and I ask unanimous consent that a copy of their letter to me 
and a copy of my letter to them be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                Washington, DC, November 17, 2005.
     Hon. Arlen Specter,
     Chairman, U.S. Senate Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, U.S. Senate Committee on the Judiciary, 
         Dirksen Senate Office Building, Washington, DC.
     Hon. Pat Roberts,
     Chairman, U.S. Senate Select Committee on Intelligence, Hart 
         Senate Office Building, Washington, DC.
     Hon. John D. Rockefeller IV,
     Ranking Member, U.S. Senate Select Committee on Intel1igence, 
         Hart Senate Office Building, Washington, DC.
       Dear Chairman Specter, Chairman Roberts, Ranking Member 
     Leahy, and Ranking Member Rockefeller: We write to express 
     our deep concern about the draft Patriot Act reauthorization 
     conference report made available to us early this afternoon. 
     As you know, the Senate version of the bill, passed by 
     unanimous consent in July, was itself a compromise that 
     resulted from intense negotiations by Senators from all sides 
     of the partisan and ideological divides. Unfortunately, the 
     conference committee draft retreats significantly from the 
     bipartisan consensus we reached in the Senate. It does not 
     accomplish what we and many of our colleagues in the Senate 
     believe is necessary--a reauthorization bill that continues 
     to provide law enforcement with the tools to investigate 
     possible terrorist activity while making reasonable changes 
     to the original law to protect innocent people from 
     unnecessary and intrusive government surveillance.
       To support this bill, we would need to see significant 
     movement back toward the Senate position in the following 
     areas:


                             1. Section 215

       The draft conference report would allow the government to 
     obtain sensitive personal information on a mere showing of 
     relevance. This would allow government fishing expeditions. 
     As business groups like the U.S. Chamber of Commerce have 
     argued, the government should be required to convince a judge 
     that the records they are seeking have some connection to a 
     suspected terrorist or spy.
       The draft conference report does not permit the recipient 
     of a Section 215 order to challenge its automatic, permanent 
     gag order. Courts have held that similar restrictions violate 
     the First Amendment. The recipient of a Section 215 order is 
     entitled to meaningful judicial review of the gag order.


                      2. National Security Letters

       The draft conference report does not provide meaningful 
     judicial review of an NSL's gag order. It requires the court 
     to accept as conclusive the government's assertion that a gag 
     order should not be lifted, unless the court determines the 
     government is acting in bad faith. The recipients of NSLs are 
     entitled to meaningful judicial review of a gag order.
       The draft conference report makes it a crime, punishable by 
     up to one year in prison, for individuals to disclose that 
     they have received an NSL, even if they believe their rights 
     have been violated. Violating an NSL gag order should only be 
     a crime if the NSL recipient intends to obstruct justice.


                               3. Sunsets

       The draft conference report includes seven-year sunsets, 
     which are too long. Congress should have the opportunity to 
     again review the controversial provisions of the Patriot Act 
     before the final year of the next presidential term. Four-
     year sunsets would ensure accountability and effective 
     oversight.
       The draft conference report does not sunset the NSL 
     authority. In light of recent revelations about possible 
     abuses of NSLs, the NSL provision should sunset in no more 
     than four years so that Congress will have an opportunity to 
     review the use of this power.


                       4. Sneak and Peek Warrants

       The draft conference report requires the government to 
     notify the target of a ``sneak and peek'' search no earlier 
     than 30 days after the search, rather than within seven days, 
     as the Senate bill provides and as pre-Patriot Act judicial 
     decisions required. The conference report should include a 
     presumption that notice will be provided within a 
     significantly shorter period in order to better protect 
     Fourth Amendment rights. The availability of additional 90-
     day extensions means that a shorter initial time frame should 
     not be a hardship on the government.
       For the past several years, our bipartisan coalition has 
     been working together to highlight and fix the civil 
     liberties problems posed by the Patriot Act. We introduced 
     the SAFE Act to address those problems, while still 
     maintaining important law enforcement powers needed to combat 
     terrorism. We cannot support a conference report that would 
     eliminate the modest protections for civil liberties that 
     were agreed to unanimously in the Senate.

[[Page S13441]]

       The conference report, in its current form, is 
     unacceptable. We hope that you, as members of the conference 
     committee, will consider making the changes set forth above. 
     If further changes are not made; we will work to stop this 
     bill from becoming law. Thank you for your consideration.
           Sincerely,
     Larry E. Craig.
     John E. Sununu.
     Lisa Murkowski.
     Dick Durbin.
     Russ Feingold.
     Ken Salazar.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                                   Washington, DC.
     Hon. Larry E. Craig.
     Hon. John E. Sununu.
     Hon. Lisa Murkowski.
     Hon. Richard J. Durbin.
     Hon. Russell D. Feingold.
     Hon. Ken Salazar.
       Dear Colleagues: I am in receipt of your November 17 letter 
     outlining your concerns about the draft Conference Report 
     reauthorizing the USA PATRIOT Act. My purpose in writing is 
     to explain how the final Conference Report addresses the 
     issues you have identified; or, where the issues are not 
     addressed, to explain why I am nonetheless comfortable with 
     the bill. Ultimately, my aim is to demonstrate to you that 
     the bill is one civil libertarians can, and should, embrace.
       Addressing each of your concerns in turn:


                             1. section 215

       The draft Conference Report would allow the government to 
     obtain sensitive personal information on a mere showing of 
     relevance. This would allow government fishing expeditions. 
     As business groups like the U.S. Chamber of Commerce have 
     argued, the government should be required to convince a judge 
     that the records they are seeking have some connection to a 
     suspected terrorist or spy.
       Although the Conference Report does authorize the FISA 
     court in certain narrow circumstances to issue an order under 
     Section 215 upon a showing of relevance, I respectfully 
     disagree that the result is a provision more open to abuse. 
     In fact, the additional protections we have obtained in the 
     Conference Report make Section 215 unquestionably more 
     protective of civil liberties and privacy rights than current 
     law, and likely even more protective of those rights than the 
     Senate bill.
       First, it is important not to overstate the significance of 
     the fact that the FISA court, in extraordinary circumstances 
     only, will allow a 215 order upon a showing of relevance to a 
     terrorism investigation. The relevance standard will apply 
     only in extraordinary circumstances because the Conference 
     Report channels all applications for Section 215 orders into 
     the three categories delineated in the Senate bill. By 
     providing a presumption of relevance when the government can 
     demonstrate a connection to a suspected terrorist or spy, the 
     bill ensures that requests falling outside the three 
     categories will be the exception and not the rule. Indeed, 
     the presumption ensures that law enforcement will face an 
     uphill battle in any effort to obtain a 215 order that does 
     not fall into one of the three categories and thereby 
     provides an incentive for the FBI to use the tool only when 
     it can show a connection to a suspected terrorist or spy. 
     Some flexibility was necessary because the Justice Department 
     was able to demonstrate, in a classified setting, that 
     circumstances arise in which it is necessary to obtain an 
     individual's records in an authorized investigation in which 
     it is not possible to demonstrate that the individual is 
     working on behalf of a foreign power or a known terrorist 
     organization.
       In addition, the Conference Report includes a number of 
     safeguards against abuse of Section 215 that neither the 
     Senate bill nor the House bill contained. First, the 
     Conference Report would require a comprehensive audit by the 
     Justice Department's famously independent Inspector General 
     of law enforcement's use of Section 215. The Inspector 
     General's reports will examine the use of Section 215 both 
     before and after reauthorization of the PATRIOT Act. Second, 
     the Conference Report would permit, for the first time, 
     public reporting of the total number of 215 orders sought and 
     granted. A third safeguard against the possibility of fishing 
     expeditions is the Conference Report's provision that Section 
     215 orders may not be used for the purpose of conducting 
     threat assessments. This requirement ensures that Section 215 
     will be used only during those authorized investigations that 
     have progressed beyond the initial stages. A fourth new 
     safeguard is that every order under Section 215 will require 
     minimization procedures that sharply curtail the retention 
     and dissemination of information concerning United States 
     citizens. These minimization procedures will prevent the 
     government from stockpiling information on American citizens 
     or from maintaining records on citizens who are only 
     incidental to the investigation.
       Finally, it is important to point out that the conferees 
     obtained all of these additional protections without 
     sacrificing the critical improvements over the current 
     Section 215 that made the Senate's PATRIOT bill attractive to 
     so many: (1) the requirement of a statement of facts to 
     accompany an application for an order under Section 215; (2) 
     the express vesting of discretion in the FISA judge to 
     review, and to reject, the FBI's application for a 215 order; 
     (3) the express right of recipients to consult legal counsel 
     and seek judicial review of 215 orders; (4) the requirement 
     of approval by senior FBI officials before the government can 
     seek library records, medical records, educational records, 
     gun records, and other sensitive documents; (5) the enhanced 
     reporting to Congress on the use of Section 215, including 
     specific information concerning requests for the most 
     sensitive documents; (6) the requirement that 215 orders can 
     compel the production only of those tangible things that 
     could be obtained under a grand jury subpoena or other orders 
     issued by federal courts; and (7) the inclusion of a four-
     year sunset provision to guarantee that Congress will revisit 
     Section 215 at a later time.
       The draft Conference Report does not permit the recipient 
     of a Section 215 order to challenge its automatic, permanent 
     gag order. Courts have held that similar restrictions violate 
     the First Amendment. The recipient of a Section 215 order is 
     entitled to meaningful judicial review of the gag order.
       After extensive discussion of this issue by the conferees, 
     I was able to conclude that the statutory scheme that the 
     Conference Report establishes would permit adequate judicial 
     review of the nondisclosure requirement.
       Primarily, this review occurs because an order under 
     Section 215 cannot issue without advance approval by the FISA 
     court. This review is not only important as a practical 
     matter, in that it guarantees judicial scrutiny of the 
     confidentiality provision in each 215 order; but it could 
     well prove dispositive in any First Amendment challenge. In 
     fact, one federal court that invalidated the nondisclosure 
     requirement of an NSL on First Amendment grounds specifically 
     singled out the absence of explicit judicial review in the 
     present law as the principal reason the regime governing 
     nondisclosure of orders under Section 215 was preferable. Doe 
     v. Ashcroft, 334 F. Supp. 2d 471, 515 (S.D.N.Y. 2004) 
     (``Furthermore, these provisions are not quite as severe as 
     those contained in the NSL statutes because, with one narrow 
     exception for certain FISA surveillance orders [that is not 
     relevant here], they apply in contexts in which a court 
     authorizes the investigative method in the first place.''); 
     cf Doe v. Gonzales, 386 F. Supp. 2d 66, 80 (D. Conn. 2005) 
     (criticizing the law governing NSLs on First Amendment 
     grounds because it ``provides no judicial review of the NSL 
     or the need for its non-disclosure provision'').


                      2. national security letters

       The draft Conference Report does not provide meaningful 
     judicial review of an NSL's gag order. It requires the court 
     to accept as conclusive the government's assertion that a gag 
     order should not be lifted, unless the court determines the 
     government is acting in bad faith. The recipients of NSLs are 
     entitled to meaningful judicial review of a gag order.
       As an initial matter, the ability to challenge the issuance 
     of an NSL remains the same as that necessary for challenging 
     a grand jury subpoena. A party challenging an NSL may be 
     successful if it is shown that compliance with the NSL would 
     be unreasonable, oppressive, or otherwise in violation of the 
     law. The provision at issue relates only to the question of 
     whether the recipient of the NSL may disclose that fact. In 
     that situation, the deference a court must show to the 
     government is not nearly as broad as stated. Specifically, 
     the court is required to treat a government certification 
     with deference only when the government asserts that removing 
     the nondisclosure requirement would endanger the national 
     security of the United States or interfere with diplomatic 
     relations. Even so, the court is able to invalidate the 
     nondisclosure requirement in the event the government acts in 
     ``bad faith.'' In all other circumstances, the Conference 
     Report makes no provision for any special deference to the 
     government.
       Furthermore, it is important to note that substantively 
     identical language was included in the Senate bill, which 
     passed this body by unanimous consent. See S. 1389 
     Sec. 8(b)(2) (``In reviewing a nondisclosure requirement, the 
     certification by the Government that the disclosure may 
     endanger the national security of the United States or 
     interfere with diplomatic relations shall be treated as 
     conclusive unless the court finds that the certification was 
     made in bad faith.''); see also H.R. 3199 Sec. 16.
       The conference adopted an important additional safeguard 
     ensuring that the presumption will be used only sparingly. 
     Under the Conference Report, the Attorney General, the Deputy 
     Attorney General, an Assistant Attorney General, the Director 
     of the FBI, or an official of similar stature in another 
     agency must personally make the requisite certification in 
     order to obtain the conclusive presumption. This is in 
     contrast to the House bill, which allowed this certification 
     to be made by the Special Agent in Charge of any one of the 
     FBI's 56 field offices, and the Senate bill, which provided 
     for certification by ``the Government,'' generally. In light 
     of this additional safeguard over and above what was in 
     either bill, as well as additional public reporting and 
     Inspector General reports concerning NSLs, my hope is that 
     this provision will not prevent you from supporting the 
     Conference Report.
       The draft Conference Report makes it a crime, punishable by 
     up to one year in prison, for individuals to disclose that 
     they have received an NSL, even if they believe their rights 
     have been violated. Violating an NSL gag order should only be 
     a crime if the NSL recipient intends to obstruct justice.

[[Page S13442]]

       The final Conference Report addresses this concern in full. 
     After intense negotiations involving various Senators and 
     House Members and the Senate and House leadership, the one-
     year misdemeanor for knowing and disclosure of an NSL was 
     struck from the bill. Consistent with your request, violation 
     of the NSL nondisclosure provision is only a crime if the NSL 
     recipient intends to obstruct justice.
       At the same time, I did want to take the opportunity to 
     clarify some facts about the NSL nondisclosure requirement, 
     which will not have the onerous impact on individual rights 
     that is implied. First, in contrast to current law, NSLs will 
     not automatically carry an injunction against disclosure; it 
     is only when the government certifies that disclosure may 
     result in a danger to national security or to the physical 
     safety of an individual, or in interference with an 
     investigation or diplomatic relations, that confidentiality 
     is even on the table. Second, the Conference Report 
     explicitly provides that individuals can disclose the 
     existence of the NSL both to those to whom such disclosure is 
     necessary to comply with the request and, critically, to an 
     attorney ``to obtain legal advice or legal assistance with 
     respect to the request.'' Thus, an individual who believes 
     her rights have been violated will be able to consult counsel 
     to explore her options for redressing any grievance. Third, 
     and also in contrast to current law, the Conference Report 
     includes a detailed mechanism for judicial review of the 
     nondisclosure requirement. The end result is that any 
     individual whose rights may have in fact been violated 
     will have a forum in which to petition for relief.


                               3. sunsets

       The draft Conference Report includes seven-year sunsets, 
     which are too long. Congress should have the opportunity to 
     again review the controversial provisions of the Patriot Act 
     before the final year of the next presidential term. Four-
     year sunsets would ensure accountability and effective 
     oversight.
       The final Conference Report addresses this concern in full. 
     After intense negotiations involving various Senators and 
     House Members, the Senate and House leadership, and the 
     Administration, the seven-year sunsets were reduced to four 
     years.
       In addition, Section 106A of the Conference Report, which 
     does not have an analogue in either bill and was generated 
     during the conference, provides that the Inspector General of 
     the Department of Justice will conduct two comprehensive 
     audits of the use of Section 215. Together with the sunsets, 
     these provisions go farther than even the Senate bill did in 
     ensuring that the Justice Department is fully accountable for 
     its use of Section 215. The Inspector General is known, 
     justifiably, for his thorough, independent-minded, and hard-
     hitting reports, so there is every reason to think that these 
     inquiries will be an effective check on the Justice 
     Department. Moreover, the release of each report will be 
     occasion for front-page news stories, Congressional 
     briefings, and public hearings--all of which will generate 
     fresh political will and opportunity to rectify any 
     problematic aspects of Section 215.
       The draft Conference Report does not sunset the NSL 
     authority. In light of recent revelations about possible 
     abuses of NSLs, the NSL provision should sunset in no more 
     than four years so that Congress will have an opportunity to 
     review the use of this power.
       NSLs have been used since at least the 1970s. No evidence 
     exists suggesting their use has ever been abused, nor until 
     now has anyone requested NSLs be subject to a sunset. Neither 
     the House nor the unanimously passed Senate bill contained a 
     sunset provision for NSLs. Nevertheless, the Conference 
     Report contains new accountability provisions and creates 
     additional opportunities for oversight. As with Section 215, 
     the Conference Report requires audits by the Inspector 
     General of law enforcement's use of NSLs. Section 119 of the 
     Conference Report, which was generated during the conference, 
     requires two such comprehensive audits. These audits should 
     have much the same effect as a sunset.
       Despite recent press reports, there is no evidence that 
     NSLs have been abused. Much of the relevant information about 
     NSLs is classified, so any individual news story will 
     understandably omit critical information that is available to 
     lawmakers. Thus, I strongly encourage you or your staff to 
     contact the Intelligence Committee if you are interested in 
     the complete picture concerning the use of NSLs. I think you 
     will be satisfied, as I was, that the media coverage vastly 
     overstates any such ``problems.''


                       4. sneak and peek warrants

       The draft Conference Report requires the government to 
     notify the target of a ``sneak and peek'' search no earlier 
     than 30 days after the search, rather than within seven days, 
     as the Senate bill provides and as pre-Patriot Act judicial 
     decisions required. The Conference Report should include a 
     presumption that notice will be provided within a 
     significantly shorter period in order to better protect 
     Fourth Amendment rights. The availability of additional 90-
     day extensions means that a shorter initial time frame should 
     not be a hardship on the government.
       As you know, I was able to include in the Senate bill a 7-
     day limit on the period in which notice can be delayed in 
     delayed-notice search warrants. The House bill, of course, 
     adopted a limit of 180 days, and the House was insistent on 
     not going any lower than 90 days--a period that, it was 
     argued, is consistent with the analogous limit for Title III 
     wiretaps. Moreover, while it is true that the Second Circuit 
     indicated that 7 days was a presumptively reasonable period 
     of delay, the Fourth Circuit countenanced an initial delay of 
     45 days. Still, my twin objectives in conference were to 
     retain a shortened delay period and to mitigate the 
     significant problem of courts permitting open-ended 
     notification delays.
       The Conference Report provides that the maximum period for 
     which notice can initially be delayed is 30 days. Although 
     this period is a few weeks longer than the 7-day time limit 
     from the Senate bill, it is considerably shorter than the 180 
     days permitted in the House bill and is a significant 
     improvement over the original PATRIOT Act, which included no 
     limits on the period of delay other than what was 
     ``reasonable.'' We were also able to eliminate the 
     possibility of open-ended delays by mandating that 
     notification occur on a date certain. In addition, the 
     Conference Report preserves from the Senate bill both public 
     reporting provisions and the requirement that extensions of 
     the delay period be granted only upon an updated showing of 
     the need for further delay.
       Finally, it is important to be mindful of the very limited 
     scope of this issue. Even in the national emergency following 
     September 11, 2001, delayed-notice searches were exceedingly 
     rare. Indeed, the Justice Department has estimated that 
     delayed-notice warrants constituted less than one-fifth of 
     one percent of all search warrants executed by Department 
     components between enactment of the PATRIOT Act and January 
     31, 2005.
       I appreciate the opportunity to explain my views regarding 
     the Conference Report, and I remain grateful for your 
     insights on these important issues. The Conference Report 
     goes far in achieving the aims of the original Senate bill; 
     namely, it permits law enforcement the necessary tools to 
     protect the country against terrorist acts while at the same 
     time safeguarding the civil liberties we all cherish. In 
     particular, what sets the Conference Report apart from even 
     the Senate bill is its detailed reporting requirements to 
     Congress and the public and its interposition of judicial 
     review on some of the more controversial provisions. 
     Requiring both detailed reporting and Inspector General 
     audits will enable the Congress, as well as the public, to 
     guard vigilantly against any possible governmental incursions 
     upon civil liberties.
           Very truly yours,
                                                    Arlen Specter.

  Mr. SPECTER. I ask unanimous consent that a copy of a ``Dear 
Colleague'' letter circulated generally to all the Senators dated 
December 9, 2005, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             United States Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, December 9, 2005.
       Dear Colleague: Upon the Senate's return during the week of 
     December 12th, we will be voting on the conference report 
     reauthorizing the USA PATRIOT Act. I write to seek your 
     support and to explain how the provisions of the conference 
     report retain the most important civil liberties and privacy 
     protections from the bill that passed the Senate and include 
     additional safeguards that emerged from the negotiations 
     between the House and Senate conferees. The conference report 
     retains the tools essential to law enforcement in fighting 
     international terrorism while significantly expanding 
     protections for civil liberties from the Act currently in 
     force.
       Although the conference report contains many valuable 
     provisions, such as important protections for the nation's 
     seaports and mass transportation systems, as well as new 
     penalties to combat the growing problem with methamphetamine 
     abuse, I would like to focus on several of the more 
     contentious provisions of the PATRIOT Act itself.


                     section 215: business records

       The most controversial provision of the PATRIOT Act has 
     been Section 215, the so-called ``library records'' 
     provision. The conference report adds several safeguards to 
     prevent abuse of Section 215 that neither the Senate bill nor 
     the House bill contained. First, the conference report 
     requires a comprehensive audit by the Justice Department's 
     independent Inspector General of law enforcement use of 
     Section 215. Second, the conference report will permit, for 
     the first time, public reporting of the total number of 215 
     orders sought and granted. A third safeguard is the 
     conference report's provision that Section 215 orders may not 
     be used merely for threat assessments. This requirement 
     ensures that Section 215 will be used only during those 
     authorized investigations that have progressed somewhat 
     beyond the initial stages. A fourth new safeguard is that 
     every order under Section 215 will require minimization 
     procedures that curtail the retention and dissemination of 
     information concerning United States citizens.
       The conference report also retains key provisions from the 
     Senate bill: (1) the requirement of a statement of facts to 
     accompany an application for an order under Section 215; (2) 
     the express vesting of discretion in the FISA judge to 
     review, and to reject, the FBI's application for a 215 order; 
     (3) the express right of recipients to consult legal counsel 
     and seek judicial review of 215 orders; (4) the requirement 
     of approval by the

[[Page S13443]]

     FBI Director, Deputy Director, or Executive Assistant 
     Director for National Security before the government can seek 
     library records, medical records, or other sensitive 
     documents; (5) the enhanced reporting to Congress on the use 
     of Section 215, including specific information concerning 
     requests for the most sensitive documents; (6) 
     the requirement that 215 orders can compel the production 
     only of those tangible things that could be obtained under 
     a grand jury subpoena or other orders issued by federal 
     courts; and (7) the inclusion of a four-year sunset 
     provision to guarantee that Congress will revisit Section 
     215 at a later time.
       The major difference between the Senate bill and the 
     conference report with respect to Section 215 is that the 
     conference report authorizes the FISA court in certain narrow 
     circumstances to issue a Section 215 order upon a showing of 
     relevance to an already authorized terrorism investigation 
     without a demonstration that the person's records being 
     requested is a known terrorist or acting on behalf of a 
     foreign power. The relevance standard will apply only in 
     extraordinary circumstances because the conference report is 
     set up so as to channel all applications for orders under 
     Section 215 into the three categories the Senate established 
     in its reauthorization bill. By establishing three 
     circumstances to demonstrate relevance when the government 
     shows a connection to a suspected terrorist or spy, the bill 
     ensures that requests falling outside the three categories 
     will be the exception and not the rule. Thus, the Senate 
     bill's three-part test remains a substantial safeguard in the 
     conference report.
       Law enforcement will face an uphill battle in any effort to 
     obtain a 215 order that does not fall into one of the three 
     categories and thereby provides an incentive for the FBI to 
     use the tool only when it can show a connection to a 
     suspected terrorist or spy. This provision was deemed 
     necessary because the Department of Justice was able, in a 
     classified setting, to demonstrate that circumstances may 
     exist in which an individual may not be known to a foreign 
     power or be a recognized terrorist but may nevertheless be 
     crucial to an authorized terrorism investigation.


                       national security letters

       The conference report also makes important changes to the 
     laws governing National Security Letters (NSLs), which the 
     FBI has used for several decades to request communications 
     records and financial information from third parties in 
     intelligence and terrorism cases. First and foremost, the 
     conference report makes explicit the right of NSL recipients 
     to ask a court to set aside the requirement to turn over 
     information as well as the requirement to keep the request 
     for information confidential. This is in stark contrast to 
     current law, which affords no such explicit right. Second, in 
     a protection analogous to one provided for Section 215, the 
     conference report requires the Justice Department's Inspector 
     General to audit the FBI's use of NSLs. Finally, the 
     conference report significantly enhances reporting to 
     Congress and requires an annual public report on the FBI's 
     use of NSLs. These reporting requirements enable both 
     Congress, and the public, to ensure that NSLs are not being 
     abused.


                  section 213: delayed-notice warrants

       The conference report has retained the important 
     protections from the Senate bill's amendments to Section 213 
     of the PATRIOT Act, which authorizes warrants allowing the 
     government to wait a number of days after the search before 
     notifying the target. The conference report requires that a 
     target be notified within 30 days of the search, unless the 
     facts of the case justify a later date. Although this period 
     is longer than the 7-day time limit from the Senate bill, it 
     is considerably shorter than the 180 days permitted in the 
     House bill and is a significant improvement over the original 
     PATRIOT Act, which imposes no limits on the period of delay 
     beyond what is ``reasonable.'' And, like the Senate bill, the 
     conference report permits extensions of the delay period only 
     upon an updated showing of the need for further delay. As in 
     the Senate bill, these extensions are limited to 90 days, 
     unless the facts justify a longer delay. Finally, and again 
     like the Senate bill, the conference report requires public 
     reporting of all delayed notice warrants.


                 section 206: multipoint wiretap orders

       Many, including myself, have discussed the need for changes 
     to Section 206 of the PATRIOT Act, which authorizes 
     multipoint or ``roving'' wiretap orders. I think the 
     conference report successfully meets that need. The ability 
     of the Justice Department to obtain multipoint wiretaps is in 
     part a result of changes in communications technology that 
     have made the use of cell phones ubiquitous. Terrorists have 
     taken advantage of those changes to cover their tracks by 
     using multiple phones.
       Borrowing elements from both the House and Senate bills, 
     the conference report limits the use of roving wiretaps to 
     those cases in which the FBI includes in its application a 
     ``specific'' description of the target and ``specific facts 
     in the application'' that show the target's actions may 
     thwart surveillance efforts. Further, the conference report 
     adopts the Senate bill's requirement that the FBI notify the 
     court within 10 days of moving its surveillance of a target 
     from one telephone number to another. As an additional 
     safeguard, the conference report requires that the FBI report 
     periodically to Congress on its use of the roving wiretap 
     authority. Finally, like the Senate bill, the conference 
     report includes a four-year sunset for Section 206 so that 
     Congress will revisit this provision in the near future. I 
     believe these important modifications will go far in 
     preventing abuse of this provision.
       Much of the criticism has really involved complaints about 
     the current PATRIOT Act without understanding the 
     improvements in the conference report. Numerous hearings have 
     determined that the PATRIOT Act has not been subject to 
     abuse. But in order to promote public confidence, the 
     conference report includes significant changes that will 
     enhance oversight by the Congress, the judiciary and the 
     public at large. The conference report represents a balanced 
     compromise designed to maintain our ability to investigate--
     and hopefully preempt--terrorist attacks, while ensuring that 
     the rights enshrined in our Constitution are not violated.
           Very truly yours,
                                                    Arlen Specter.

  Mr. SPECTER. The schedule which is currently anticipated is that the 
House of Representatives will take up this bill and vote on Wednesday 
and the Senate will take up a motion to proceed to vote on Wednesday. 
There is talk of a filibuster. Whatever Senators choose to exercise 
whatever rights they have, we will see, but I thought it would be 
useful in talking to a number of colleagues today, the request was made 
to see something in the Congressional Record which goes into some 
detail in hitting the hot spots, but I add to my colleagues who may be 
listening or staffers of my colleagues who may be listening or who may 
read this in the Congressional Record which will be in print today, my 
staff and I are ready, willing, and able to elaborate further on the 
substance of the conference report. This report has been the subject of 
negotiations between the House and Senate for weeks and has consumed 
all of last week.
  I thank the staffs on both the House and the Senate for 
extraordinarily diligent work, working around the clock. This was a 
full-time venture for me, personally, and other Members for the past 
many days. We have moved ahead because this bill expires on December 
31. For those who want to reargue it and relitigate it and reconsider 
it, it will not get any better. If we go back to conference, were that 
course to be followed, there are a lot of limitations in the wings that 
could be added. With only that one provision about the conclusive 
presumption having been an issue, and it having been in the Senate bill 
which, again I repeat, we were misinformed about and the vast 
improvements on the issues we have mentioned, it is a bill that ought 
to be accepted so we can move on.
  We have a very heavy schedule in the Judiciary Committee. When we 
return in early January before the Senate goes into session, we have 
the confirmation hearings of Judge Alito for the Supreme Court 
scheduled on the 9th of January. We then have scheduled as the first 
item of legislative business asbestos reform when we go back into 
session on the 23rd. The first item of legislative business will be 
available on January 24. Then we have the issue of immigration reform, 
which is very high on the agenda. We have backing up the matter of 
reporters' privilege or reporters' shield and a long list of items of 
other confirmation proceedings to take up the time of the Judiciary 
Committee.
  I invite my colleagues' careful consideration, and I repeat the 
availability of staff and myself personally to answer any questions or 
make any elaborations.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________