[Congressional Record Volume 151, Number 159 (Tuesday, December 13, 2005)]
[Senate]
[Pages S13462-S13467]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATRIOT ACT REAUTHORIZATION
Mr. SUNUNU. Mr. President, today I come to the floor to speak about
the pending reauthorization, extension of the PATRIOT Act, the
legislation passed in the wake of the September 11 attacks. This debate
is fraught with emotion because we were all outraged at what happened
on September 11. Everyone in America and around the world shares a
desire to address the threat of global terrorism, to give law
enforcement appropriate powers to pursue those terrorists. But we want
to make sure in doing so we pass legislation that is in keeping with
the principles on which our country was founded--principles of
individual liberty and freedom.
Ultimately, this debate about renewing, extending the PATRIOT Act is
about police powers, the power that the people, through their elected
representatives, give to government, give to agents of government.
Whether it is at the State, local, or Federal level, we give certain
police powers to government to conduct searches. We give the government
power to detain individuals. We give the government power to serve
subpoenas, to confiscate records. We do it because we think ultimately
it is in the public interest to do so. But just as the Framers
recognized, we need to provide a balance, to balance these very
forceful, very powerful tools with personal freedom, civil liberty.
So as a result, we require the government, or government agents, to
show cause before they conduct a search. We set standards for evidence
in a courtroom. They need to meet certain standards of evidence to
conduct a search, certain standards of evidence to detain an individual
or a suspect. And, of course, we have the principle of due process,
trial by jury, and the ability to have an appeal heard in a court of
law.
Some people may say: We know that. These are fundamental. These are
basic to our system of justice. But it is important that we are
reminded of these basic principles if we are going to get the
reauthorization and the extension of the PATRIOT Act correct.
This is not a new set of issues. These are the very issues
contemplated by the Framers. In many respects, these police powers are
issues that alarmed the Framers--and I say alarmed because they were so
concerned about the powers of Government and the powers of the State
that they wrote specific protections into the Constitution. The fourth
amendment, protecting from unreasonable search and seizure,
specifically addresses the threshold of probable cause, that the
Government shall show probable cause before it conducts search and
seizure of personal property.
The fifth amendment protects us from self-incrimination. We have all
seen enough Perry Mason to understand what it means to invoke one's
rights under the fifth amendment. It speaks specifically about due
process and the right to an open, fair due process when one is being
prosecuted, whether it is for a criminal act or whether we are
prosecuting one of these powers of search and seizure, a power of the
State to issue a search warrant.
The sixth amendment speaks specifically about a right to a trial and
what it means to have one's case heard before a jury or in a court of
law. All of these amendments and others, but these three in particular,
speak directly to balancing the rights of individuals and the liberty
of individuals with the powers of the State.
The Framers were, quite frankly, very distrustful of Government and
the power of the Federal Government. I try to be a little less
pessimistic in my work in the Senate, but I must be frank with my
colleagues in stating that on this issue, on the PATRIOT Act, I have
begun this debate more from a position of mistrust and concern about
the work that had been done in preparation for this reauthorization and
the position taken by the administration. I will speak to that in a
moment, but it is important to note that on the Senate side we had
bipartisan agreement and on the Senate side
[[Page S13463]]
we had terrific leadership by Senator Specter on these issues. He
understands this balance probably as well as anyone in the Senate. I do
not fault his work as a chairman and certainly not the work of the
Senate as a whole, given that we had incorporated a number of
protections in our legislation.
The Justice Department began this process well over a year ago,
taking the position that we should make all the provisions of the
PATRIOT Act permanent and we should not make any changes, we did not
need to make any changes. This is legislation that was passed just 6
weeks after September 11. I would not say it was passed in haste, but
it was passed during a very difficult and emotional time in our
country's history. We had sunsets on 16 provisions in the PATRIOT Act
for just that reason. We knew there was a lot of uncertainty as to how
this war on terrorism would progress, what tools law enforcement really
did need to pursue legitimate terrorist suspects, what we needed to do
to get our hands around financial records or other financial
transactions that might lead investigators to uncover terrorist cells
in America or around the world.
Anyone who understands the legislative process knows that was not a
perfect bill, no matter how hard people worked on it. To suggest that
when it came time for reauthorization there would be no need for
changes I believe suggests a lack of understanding of the process of
Congress, the legislative process, and how things get put together on
Capitol Hill, or lack of understanding about the substance in the bill,
not understanding all the provisions in the bill and how they did in
some cases unnecessarily infringe on civil liberties, or perhaps an
arrogance that leadership, those who were responsible for providing
leadership within the Justice Department, knew they were not abusing
any of the provisions in the law so no changes needed to be made. I
will speak to that argument shortly, but I think it is very
unfortunate.
So when one has this kind of legislation, as sweeping in scope as
this is, and suggests when it comes time to deal with these sunset
provisions that no changes need to be made, I think shows a lack of
substantive reflection on the balance between the police powers of the
State I spoke about and civil liberties on the other hand.
Two years ago, I joined with a number of my colleagues in introducing
the SAFE Act: Senators Durbin, Salazar, and Feingold on the Democratic
side, Senators Craig, Murkowski, and myself on the Republican side. We
spoke specifically to a few provisions in the PATRIOT Act where we
thought we could do a better job of protecting civil liberties.
The 215 section that allows the subpoena of business or library
records, the national security letter provision--the national security
letter is a sweeping order issued without the approval of a judge that
gives investigators access to financial data, to medical data, or to
other transaction records; the roving wiretap provision that is
necessary because we have new communication technologies that are more
mobile than ever but where we still need to do a good job of specifying
who the target is of that roving wiretap; delayed search warrants--
again, sometimes there is going to be a need for conducting a search
warrant before notifying a target so that the investigation is not
jeopardized. But we should have specific provisions written in the law
for notifying that target after a certain period of time. As it was
written, there was no period specified for notification.
Of course, the idea of sunsets is important to civil liberties
anytime one is dealing with law enforcement legislation, because a
sunset calls on Congress to come back, look at how a law was used, look
at how it was implemented, how it affected civil liberties, and make
appropriate changes.
I ask unanimous consent to speak for an additional 10 minutes.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I have no objection. I add to that consent
that I would then follow the distinguished Senator from New Hampshire
on the same subject.
Mr. SUNUNU. I so modify my request.
Mr. ALEXANDER. Reserving the right to object, I ask unanimous consent
to follow the distinguished Senator from Vermont.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. SUNUNU. We introduced the SAFE Act to deal with very specific
areas where we thought the PATRIOT Act needed to be improved to better
protect civil liberties. Some would argue that with the PATRIOT Act, as
it has been rewritten, the conference agreement, that there were only a
few areas now where there is a disagreement and so we ought to accept
it as it is. I make a broad argument, though, that simply because we
are conducting shortcuts on civil liberties in only a few areas is
simply not an effective argument. I think where civil liberties are
concerned, as I illustrated with the Framers' concerns, we ought to do
everything in our power to make sure proper protection is provided.
A few key points about the weaknesses that remain in the PATRIOT Act,
and with these weaknesses I will not be able to support the final
conference report. I certainly will not support moving forward with the
conference report, in part because I think these are substantive
problems but also because they are problems that should be easily
addressed in a reworked conference agreement. The first deals with the
business and libraries provision, section 215. In section 215 we have
established a very broad standard, too broad a standard, for
investigators to get access to sensitive records--whether it is at a
business or a library; it makes no difference. The standard is that the
records simply be shown as relevant to an investigation. That does not
sound inappropriate, but as a legal standard that means records could
be subpoenaed that have no direct connection to a particular suspect.
As a result, the records of many innocent Americans, or the burden
placed on businesses to continually produce records under this
provision is going to be far too onerous.
There is also associated with this provision, this business records
subpoena power, a permanent automatic gag order that prevents you from
discussing the fact that this order has been issued to you as an
individual or your business, and there is no judicial review of that
gag order. I think this is a fundamental flaw in this conference
report, the idea that you have been served with a permanent gag order
to restrict your free speech, to restrict you from talking about that
gag order, and it is permanent and you have no ability to appeal it in
a court of law.
I would argue that taking your case, your appeal before a judge is
fundamental to our system of justice in the United States of America. I
would further argue that it in no way undermines law enforcement's
ability to conduct an investigation to give the business or the
individual the opportunity to appeal that gag order in a court of law.
The argument that it might cost a little bit extra is ridiculous in the
face of the need to protect individual civil liberties.
The system of judicial review for these section 215 subpoenas simply
is not acceptable. Similarly, the system of judicial review on national
security letters fails to meet the important test of balancing
individual civil liberties. There is a very low threshold for getting a
national security letter. It is not approved by a judge. The threshold
is merely a ``showing of relevance,'' once again not a direct
connection to a suspect, which is very problematic. Moreover, the
threshold for overturning the gag order--again a restriction on the
ability to even discuss the national security letter--is that you must
show bad faith on the part of the Federal Government. That is virtually
impossible. No individual, no business served with a national security
letter will effectively be able to show bad faith on the part of the
Federal Government, and therefore they will never have a national
security letter or its accompanying gag order overturned.
To have meaningful judicial review you have to have a meaningful
standard, a reasonable standard of showing in that court of law. I
think it is fair to say, if we look around the world at different
governments' attempts to eviscerate the power of due process, this is
one way to do it--to have judicial review, to ``let people have their
case in
[[Page S13464]]
a court of law,'' but set the standard of evidence or the standard for
overturning an egregious decision so high that the government always
wins. That is simply not acceptable where American civil liberties are
concerned.
Finally, let me turn to a few of the arguments posed or made to
individuals, such as Senator Leahy or Senator Feingold or me, who have
brought forward these objections. One argument is what I would describe
as a very broad argument, that we need to extend the PATRIOT Act, we
need to fight terrorism, we need to make sure we don't undermine the
ability of law enforcement in their work to deal with terrorist
threats. I agree. Senator Leahy--I will take the opportunity to speak
for my colleague from Vermont. He agrees we need to do all of these
things. But that is not a substantive argument for not making these
changes he and I support. We are all for fighting terrorism. We are all
for extending the PATRIOT Act. I do not oppose the idea of subpoenaing
business records or even library records or the idea of a national
security letter. What I oppose is having such a powerful government
force in place without countervailing protections for civil liberties.
A second argument is one I mentioned earlier: for the Justice
Department to say we have not abused any provisions in the current
PATRIOT Act so just extend them all as written. It doesn't matter to me
whether it is a Democratic administration or Republican administration,
the argument that you have not abused a poorly written law is no
argument at all for extending and making permanent that poorly written
law. If it does not protect civil liberties, we should modify it. We
should make sure the protections are there so that no matter who holds
the reins of power, in the executive or the legislative or the judicial
branches of Government, those freedoms continue to be protected.
A third argument is if we do not move forward, if this bill fails to
get a cloture vote this week and it goes back to conference, it will
only get worse. Let me get this straight. If you vote against a bill
that doesn't adequately protect civil liberties, we are going to take
it back to conference and compromise civil liberties even further? I
think that is an outrageous argument to make. I think there are some
people who are making it, or who have made it, who do not intend it to
be taken that way. But I think it is only fair that it be taken that
way. That is an inappropriate threat. If the attitude of the conferees
is they will further restrict civil liberties if they do not get this
poorly written bill passed, then perhaps no law is better.
I do not believe that. I think there ought to be a willingness to
make improvements. Again, there are no specific reasons for how these
changes that I have described--judicial review of a 215 gag order, a
better threshold for overturning an NSL there is no substantive
argument that I have heard for how these would undermine law
enforcement's ability to pursue terrorists. These arguments simply do
not hold up.
Benjamin Franklin, 200 years ago, observed that:
Those who would give up Essential Liberty to purchase a
little Temporary Safety deserve neither Liberty nor Safety.
Those words are as true today as they were over 200 years ago. There
is no reason to compromise the right to due process, the right to a
judicial review, to fair and reasonable standards of evidence, in the
pursuit of our security and the pursuit of terrorists wherever they may
be around the world. I think making these changes is reasonable. They
are fair.
I have joined with Senator Leahy in introducing a 3-month extension
of the existing PATRIOT Act to ensure that we have plenty of time, in a
reasonable and thoughtful way, to make very modest changes that would
go a long way toward ensuring this is a better bill, that it is a bill
that we can be proud of, and a bill that will protect civil liberties.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Vermont is recognized.
Mr. LEAHY. Mr. President, first, if I might, I wish to compliment my
colleague and neighbor from across the Connecticut River, Senator
Sununu of New Hampshire. He has laid out very clearly and eloquently
the reasons we should not be rushed into a bad bill. It is not because
any of us here have any love of terrorists. Of course none of us do; no
Americans do.
On a September morning 4 years ago, nearly 3,000 lives, American
lives, were lost--not in a foreign nation but on our own soil. Our
lives as Americans changed in an instant. There is not a person within
this Chamber who does not remember exactly where he or she was when
they heard the news of the attacks of 9/11. In the aftermath of those
attacks, Congress moved swiftly to pass antiterterrorism legislation.
We moved as a Congress, as a Senate, as a House--not as Republicans or
as Democrats, but as Americans, united in our efforts. The fires were
still smoldering at Ground Zero in New York City when the USA PATRIOT
Act became law on October 30, 2001, just 6 weeks after the attacks.
I know how hard we worked. I was chairman of the Senate Judiciary
Committee at the time. Many of us here in the Senate today worked
together in that spirit of bipartisan unity. We resolved to craft a
bill that would make us safer as a nation.
Freedom and security are always in tension in our society, especially
so in those somber weeks after the attacks. We tried our best to strike
the right balance between freedom and security.
The Senator from New Hampshire quoted Benjamin Franklin. As one reads
the history of the founding of this Nation and what the Founders went
through, his quote stands out so much. Benjamin Franklin, like the
other Founders, knew that had our new country not worked, had the
Revolution not worked, most of them would have been hanged for trying
to break away from our mother country. When he spoke of a people who
would give up their liberties for security deserving neither, he knew
of what he spoke. And he set a key idea for the fledgling democracy of
America, and it is one that I like to think through the generations we
have strengthened. During my years in the Senate, I have done
everything possible to strengthen that balance to maintain our
liberties because if we do not maintain our liberties, at the best we
have a false security. It is not a real security.
One of the fruits of the bipartisanship of the PATRIOT Act, in trying
to work out this balance, was the sunset provisions. Those key
provisions set an expiration date of December 31, 2005, on certain
Government powers that had great potential to affect the civil
liberties of the American people. We are just weeks away from that date
now.
Some may wonder how these sunset provisions worked their way into the
PATRIOT Act. They were put there by the Republican leader of the House,
Dick Armey of Texas, and myself. We have entirely different political
philosophies, but we agreed on one thing: If you are giving great
powers to our Government, you want to make sure there are some strings
attached. It makes no difference whether it is a Republican
administration or a Democratic administration, you want to make sure
there are strings attached. Leader Armey and I insisted on these
sunsets to ensure that Congress would revisit the PATRIOT Act within a
few years and consider refinements to protect the rights and liberties
of all Americans more effectively, and we prevailed on that point.
Sadly, the administration and some in the leadership in the House and
Senate have squandered key opportunities to improve the PATRIOT Act.
The House-Senate conference report filed last week by Republican
lawmakers falls short of what the American people expect and deserve
from us. The bipartisan Senate bill, which the Senate Judiciary
Committee and then the Senate adopted unanimously, struck a better
balance.
If I might, I wish to compliment the chairman of the Senate Judiciary
Committee, Senator Arlen Specter, the senior Senator from Pennsylvania,
and those Republicans and Democrats in this body who worked with him,
as I did, to put together a fair and balanced bill which was able to go
through our committee, which is sometimes heavily divided on issues.
Instead, it went through the Judiciary Committee unanimously and passed
the Senate unanimously. We worked together on that because we
understand that the
[[Page S13465]]
reauthorization of the PATRIOT Act has to have the confidence of the
American people.
Think for a moment. Governments can limit the rights of the people in
their countries really in only two ways: they can do it by force of
arms, by oppression and repression, as we have seen with totalitarian
governments, or, if they have done it right, they can do it with the
consent of the governed.
As we are limiting some of these rights, as we are giving greater
powers to our Government, we want to do it in a way where the American
people--all of the nearly 300 million people in this great country--
would have confidence in what we have done, because we do not enforce
our laws in this country by force of arms, by dictatorship; we do it
with the consent of the governed.
I believe what we passed in the Senate and in the Senate Judiciary
Committee would have the confidence of the American people. But now we
have pushed forward and changed that to flawed legislation which will
not have that confidence and respect of the American people. The
Congress should not rush ahead to enact flawed legislation to meet a
deadline that is within our power to extend. We owe it to the American
people to get this right. America can do better than this flawed
legislation.
The way forward to a sensible, workable, bipartisan bill is clear. It
is very clear, as Senator Sununu said on the floor earlier this morning
and as I have suggested. Yesterday, Senator Sununu and I introduced a
bill to extend the sunset for the expiring PATRIOT Act powers until
March 31, 2006. Give us until March 31 to get this right, give us until
March 31 to have a bill that would have not only the respect of the
American people but especially the confidence of the American people.
Our laws work if we have confidence in them, and they fail if we do not
have confidence in them.
In offering this bill, Senator Sununu and I have been joined by
Senators Craig, Rockefeller, Murkowski, Kennedy, Hagel, Levin, Durbin,
Stabenow, Salazar, and others. It is a bipartisan effort to extend this
deadline. A deadline which Congress imposed to ensure oversight and
accountability should not now become a barrier to achieving bipartisan
compromise and the best bill we can forge together.
This is a vital debate. It should be. These are vital issues to all
Americans. If a brief extension is needed to produce a better bill that
would better serve all of our citizen then by all means, let us give
ourselves that time. We want to give tools to prosecutors. I spent 8
years of my life as a prosecutor. Some of the finest people on my staff
are former prosecutors. We know the needs, especially in the electronic
age. But we can do better, and America can do better if given the time.
I thank Senator Sununu and all of our cosponsors in coming together
in a bipartisan way to advance what is a commonsense solution.
I ask unanimous consent to have printed in the Record some recent
editorials on this matter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Dec. 12, 2005]
A Better Patriot Act
The conference report on the USA Patriot Act
reauthorization bill contains one major improvement over the
previous version and a few minor ones. The new bill contains
strong ``sunset'' provisions, under which the three most
controversial provisions would lapse again after four years,
not the seven of the earlier draft. This is no small win for
civil liberties. The sunset provisions in the original
Patriot Act have given Congress leverage over the past few
years to extract information from an administration not known
for openness concerning its use of the powers Congress gave
it. Insisting that the administration justify itself again
relatively soon ensures that Congress will be able to adjust
and refine the law as need be.
Yet the conference report remains far from perfect. A
bipartisan group of senators is still objecting that it does
too little to protect civil liberties, and they are
threatening a filibuster, though it is not clear whether they
have the votes to sustain one. Some of the changes they are
seeking are reasonable and constructive. While the bill does
not contain the worst excesses of the House version, which
was larded with irrelevant and often terrible policy changes,
it still has a fair number of extraneous sections. Some are
silly, some ugly.
What makes all this so frustrating is that a consensus bill
was surely possible. Indeed, it happened. The Senate version
of the bill passed on a unanimous vote, representing broad
agreement to grant government authorities the powers they
legitimately need while ensuring accountability in their
use--and it didn't contain a raft of irrelevant laws
unrelated to intelligence. The members balking at the current
bill would do a service if they forced a cleaner, more
accountable Patriot Act reauthorization.
Debate over the conference report has focused on a narrow
array of civil liberties issues, all quite technical. The
rhetoric from civil libertarians makes the stakes here seem
greater than they really are. The differences between the
various proposals are not huge in practical terms. They are,
however, significant. The conference report contains weaker
controls on secret warrants for business records in national
security cases than the Senate bill did. It also does too
little to get a handle on the use of national security
letters--a form of administrative subpoena that the FBI uses
in national security cases to obtain records of certain
business transactions. These problems are not unsolvable, and
it's hard to believe the government is today getting much
data through uses of these powers that would be forbidden
were they written more accountably.
What's more, sift through the bill and you'll find
provisions dealing with tobacco smuggling, establishing civil
immunity for folks who donate firefighting equipment to fire
departments, establishing new crimes--some punishable by
death--related to marine navigation, creating a new national
security division in the Justice Department, letting Secret
Service forensics experts help out in finding missing kids,
combating methamphetamine abuse and making life more
miserable for people challenging state convictions in federal
court. None of this, needless to say, has much to do with
protecting America from al Qaeda.
The Patriot Act cannot be allowed to lapse at year's end,
and the current bill is much improved over earlier versions.
But it could still be a lot better. Precisely because the
administration cannot afford to let its powers expire,
further improvement should still be possible.
____
[From the Fresno Bee, Dec. 12, 2005]
Take the Time
Fresno, CA.--Barring an unlikely successful filibuster, the
USA Patriot Act is likely to be renewed this week, mostly in
the form it was given in 2001. That's when Congress, in the
wake of the Sept. 11 terrorist attacks, rushed to give law
enforcement broader powers of investigation. That's still
justified up to a point. Law enforcement and intelligence
agencies should not be hamstrung, for instance, by a now-
lapsed ban on sharing information.
But it's risky to give blanket authority to government
agencies to bypass the courts, as this law partly does. It's
too tempting to look into every nook and cranny just to be
sure there isn't something amiss there.
After lengthy debate behind closed doors, a House-Senate
conference committee agreed on compromise language that
congressional negotiators say will include more protection
for individuals. But if that's true, why do six senators--
three Democrats and three Republicans--still oppose the
measure? (One of them--Democrat Russ Feingold of Wisconsin,
the only senator to vote against the original law--is
threatening to filibuster the revised version on the Senate
floor.)
The principal objection of these lawmakers, and those of us
who cherish individual liberty, is that the law sets too low
a threshold for justifying the need to examine private
records, including medical, financial and employment. And
they are not persuaded--nor are we--that requiring
authorities to show that their investigation has some
relevance to an anti-terror investigation is enough.
These secret searches should be limited to specific
individuals and not be so broad as to allow ``fishing
expeditions.''
Supporters of the revised law say action is necessary now
because 16 provisions of the original act are set to expire
Dec. 31. That's true. But there's a way to avoid undue haste
without tying the hands of law enforcement: Adopt a proposal
by Sen. Patrick Leahy, ranking Democrat on the Judiciary
Committee, to extend the law for three months, allowing time
for public debate on a law that could be used as much to harm
individuals as to catch terrorists.
The compromise bill would make all but two of the 16
expiring provisions permanent. The other two are to be
extended for only four years, rather than the 10 years sought
by House Republicans. That's small comfort to those whose
privacy will be at risk in the meantime.
House Judiciary Chairman James Sensenbrenner, a proponent
of quick action, claims it's needed to aid law enforcement in
detecting terrorists before they strike. But that sense of
urgency extends only so far. Former members of the 9/11
Commission have just scorched Congress and the White House
for failing to protect the country in many ways, including
the misallocation of resources to states or localities based
on political clout instead of risk.
Americans would be no less safe if Congress were to
postpone a final vote and allow time for an open and honest
debate.
____
[From the Kansas City Star, Dec. 12, 2005]
More Time Needed To Forge Better Bill
Kansas City, MO.--A shaken Congress passed the Patriot Act
with almost no debate in the wake of the 2001 terrorist
attacks.
[[Page S13466]]
Since then politicians across the spectrum have joined
librarians, city councils and other groups in raising alarms
about the law's intrusions on the privacy of American
citizens.
With the act set to expire Dec. 31, lawmakers are
scrambling to reach a compromise that would allow most of the
provisions to be renewed permanently. Time is short, but it's
essential for Congress to give Americans a better balance
between national security and civil liberty.
The House and Senate this week will consider a compromise
agreement reached by negotiators. The package makes a good-
faith attempt to address some of the problems. But it
continues to give law enforcement agencies too much leeway to
search people's homes and examine their records without first
obtaining permission from judges.
Provisions in the proposed law instruct judges to presume
federal agents' requests for records are valid, unless the
targeted people can prove the government acted in bad faith.
That places citizens at a serious disadvantage. Judicial
oversight doesn't mean much if the judges merely serve as
rubber stamps for law enforcement agents.
The compromise also does little to curb the burgeoning use
of ``national security letters,'' which the FBI uses to make
sweeping requests for records from libraries, telephone
companies and Internet providers.
Former Attorney General John Ashcroft used to sneer and
scoff at librarians who raised concerns about these requests,
implying they were rare. But The Washington Post has reported
that the FBI issues 30,000 such letters a year.
Senators from both political parties are raising valid
concerns about the proposed new law. Democratic Sen. Patrick
Leahy proposed renewing the existing act for 90 days to give
lawmakers more time to write a better bill.
Leahy's idea has merit. National security and individual
freedoms are too important to be compromised in haste.
____
[From the Morning Call, Dec. 12, 2005]
The War on Terrorism
Allentown, PA.--An unusual coalition of conservatives and
liberals, along with the U.S. Chamber of Commerce and the
American Civil Liberties Union, merits attention. It's rare
for groups so far apart along the usual political spectrum to
agree on something. But they are united in their concern that
a compromise reached by Senate and House negotiators Thursday
won't sufficiently protect Americans' civil liberties. They
have reason for concern.
Sen. Arlen Specter, the Republican chairman of the Senate
Judiciary Committee, said the compromise legislation is ``not
a perfect bill, but a good bill.'' House and Senate
negotiators came up with a plan to permanently extend 14 of
16 provisions set to expire at the end of the year. Of
particular note: When a law enforcement agent seeks access to
records, by order of a secret court established under the
Foreign Intelligence Surveillance Act, the agent must provide
a ``statement of fact'' proving it is relevant to an anti-
terrorism investigation.
But the coalition's concerns about fishing expeditions got
a boost last week when a bipartisan group of six senators
issued a statement critical of the compromise: Republican
Sens. Larry E. Craig of Idaho, John E. Sununu of New
Hampshire and Lisa Murkowski of Alaska, and Democratic
Senators Russell D. Feingold of Wisconsin, Richard J. Durbin
of Illinois and Ken Salazar of Colorado.
The primary concern is that restrictions in the Patriot Act
haven't gone far enough since its passage in the wake of 9/11
to prevent government officials from going on so-called
``fishing expeditions.'' The Washington Post reported in
October that the FBI used provisions of the act regarding
records-gathering to annually issue more than 30,000
specialized subpoenas, or national security letters, seeking
information from businesses.
The letters don't require the government to demonstrate a
link between the information being sought and a suspected
terrorist. They only attest that the records sought are
relevant to a terror investigation. This provision of the
Patriot Act must be tightened before the anticipated House
and Senate votes this week.
Or, if such an agreement cannot be reached, both chambers
should take the advice of Sen. Patrick J. Leahy of Vermont.
The ranking Democrat on the Judiciary Committee, who didn't
agree to the compromise, has proposed a three-month extension
of the Patriot Act, past its year-end expiration date.
Sen. Feingold, the only senator to vote against the
original legislation in 2001, has threatened to filibuster
the bill extending Patriot Act provisions because it lacks
sufficient safeguards to protect constitutional freedoms.
Sixty votes would be required to block a vote on final Senate
passage.
A three-month extension is preferable, however, to a bitter
partisan battle on the Senate floor.
____
[From the Times Union, Dec. 12, 2005]
True Patriots
Albany, NY.--There's scant comfort in the compromise
reached by House-Senate conferees late last week on renewing
the USA Patriot Act. While it is welcome news that House
negotiators failed in their attempt to have the most
controversial provisions of this law extended for seven
years, rather than four, as the Senate insisted upon, and
which is now part of the compromise, there is no
justification to put basic civil liberties at risk for even
four minutes, let alone four years.
Fortunately, a bipartisan group of six senators is vowing
to filibuster the accord, which is scheduled to be voted upon
this week. They are the true patriots. Their demands are
hardly burdensome. To the contrary, they want any final
legislation to include checks and balances against possible
abuse of power by government agencies acting under the
surveillance powers of the Patriot Act. That means some
monitoring of, say, FBI demands for reading, financial and
other personal information on American citizens. Former Rep.
Bob Barr of Georgia, who now heads a group called Patriots to
Restore Checks and Balances, sums up the issue this way:
``Lawmakers could have easily fixed these controversial
record search provisions by simply adopting the Senate-passed
amendment to Section 215, requiring the government to show a
connection between records sought and a suspected foreign
terrorist, and by applying a similar requirement to the NSL
(National Security Letters) powers. The decision of some
lawmakers to rush this flawed Patriot Act legislation to a
vote may allow them to leave a little earlier for the
holidays this year, but it will also leave the civil
liberties of their constituents in jeopardy for years to
come.''
Supporters of the compromise argue that it does offer
safeguards against government abuses by requiring some
judicial overview. But a close reading of these oversight
requirements shows that investigators would have no trouble
meeting the loose standards for initiating searches.
No one, least of all Mr. Barr, is suggesting that the
government shouldn't be able to track down suspected
terrorists. But the broad surveillance powers granted under
the Patriot Act open the way for possible abuses, such as
collecting information on law-abiding Americans without
notifying them or allowing them the opportunity to challenge
the searches.
Sen. Patrick Leahy, D-Vt., who refused to sign the
compromise, suggests a reasonable solution: Rather than rush
the vote, extend the current act for three months and use the
extra time to forge a better bill. ``We owe it to the
American people to get this right,'' Sen. Leahy says. It's a
debt that should not be taken lightly.
____
[From the Sacramento Bee, Dec. 11, 2005]
Patriot Act Renewal: Take Time to Do It Right
Sacramento, CA.--Barring an unlikely successful filibuster,
the USA Patriot Act is likely to be renewed this week, mostly
in the form it was given in 2001. That's when Congress, in
the wake of the 9/11 terrorist attacks, rushed to give law
enforcement broader powers of investigation. That's still
justified up to a point. Law enforcement and intelligence
agencies should not be hamstrung, for instance, by a now-
lapsed ban on sharing information.
But it's always risky to give blanket authority to
government agencies to bypass the courts, as this law partly
does. It's too tempting to look into every nook and cranny
just to be sure there isn't something amiss there.
After lengthy debate behind closed doors, a House-Senate
conference committee agreed on compromise language that
congressional negotiators say will include more protection
for individuals. But if that's true, why do six senators--
three Democrats and three Republicans--still oppose the
measure? (One of them--Democrat Russ Feingold of Wisconsin,
the only senator to vote against the original law--is
threatening to filibuster the revised version on the Senate
floor.)
The principal objection of these lawmakers, and of civil
libertarians, is that the law sets too low a threshold for
justifying the need to examine private records, including
medical, financial and employment. And they are not
persuaded--nor are we--that requiring authorities to show
that their investigation has some relevance to an anti-terror
investigation is enough. Instead, these secret searches
should be limited to specific individuals and not be so broad
as to allow ``fishing expeditions.'' That has happened before
and almost surely will again.
Supporters of the revised law, mainly House Republicans and
the White House, say action is necessary now because 16
provisions of the original act are set to expire Dec. 31.
That's true. But there's a simple way to avoid undue haste
without tying the hands of law enforcement: Adopt a proposal
by Sen. Patrick Leahy, ranking Democrat on the Judiciary
Committee, to extend the law for three months, allowing time
for public debate on a law that could be used as much to harm
individuals as to catch terrorists.
The compromise bill would make all but two of the 16
expiring provisions permanent. The other two are to be
extended for only four years, rather than the 10 years sought
by House Republicans. That's small comfort to those whose
privacy will be at risk in the meantime.
House Judiciary Committee Chairman James Sensenbrenner, a
proponent of quick action, claims that's needed to aid law
enforcement agencies ``in the detection, disruption and
dismantling of terrorist cells before they strike.'' Yet such
a sense of urgency seems to extend only so far on Capitol
Hill. Former members of the 9/11 Commission
[[Page S13467]]
have just scorched both Congress and the White House for
failing to protect the country in a variety of ways,
including the misallocation of resources to states or
localities based less on risk than on political clout.
Americans would be no less safe if Congress were to
postpone a final vote and allow time for an open and honest
debate.
____
[From the Brattleboro Reformer, Dec. 10, 2005]
Repealing Patriotism
Brattleboro, VT.--At some future date, when sanity perhaps
returns to our nation, historians will look back at the
Patriot Act and put it in the same category as other assaults
on our civil liberties, such as John Adams' Alien and
Sedition Act, Abraham Lincoln's suspension of habeas corpus
during the Civil War or Franklin Roosevelt's internment of
Japanese-Americans during World War II.
On Oct. 26, 2001, President Bush signed the Uniting and
Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA PATRIOT) Act. The
House of Representatives passed this grab bag of police-state
tactics by a 357-66 vote with almost no debate.
Wisconsin Democrat Russ Feingold was the only senator to
vote no. At the time, Feingold called the Patriot Act a
``truly breathtaking expansion of police power.''
A fearful Congress was stampeded into approving, almost
sight unseen, one of the broadest assaults on civil liberties
in our nation's history. Despite assorted court challenges,
the expansion of police power continues--an expansion which
has done little to capture the masterminds of the Sept. 11
attacks or to prevent future attacks. But this expansion has
done much to undermine our hard-won Constitutional rights.
What has happened to our legal rights since then? Here's a
refresher:
You've lost your freedom of association. The federal
government can now monitor the doings of religious and
political organizations, even if there's no reason to suspect
that illegal activity is going on.
You've lost your freedom from unreasonable searches. The
federal government may search and seize your papers and
effects without probable cause and without a court warrant.
It can also question librarians and booksellers about your
reading habits, and threaten them with jail if they reveal to
anyone that you're being investigated.
You've lost your right to a speedy and public trial. The
federal government can now jail you indefinitely without you
being charged with a crime and can do so without holding a
trial and without allowing you to confront your accusers.
This is what you can expect if you are deemed to be a
``terrorist'' or are deemed to be ``assisting a terrorist
group.'' The definition of ``terrorist'' and ``terrorist
group'' is purely up to the government, of course.
You've lost your right to legal representation.
Conversations between attorneys and clients can now be
monitored in federal prisons. That is, if you're fortunate
enough to have an attorney. The federal government now has
the right to deny you legal representation too.
In short, the federal government can arrest virtually
anyone it deems to be a danger to national security, even
without a formal criminal charge, and jail them indefinitely.
It can deny you a lawyer or even a trial, public or secret.
And all of this can happen without your family or friends and
relatives ever knowing what happened.
This is what the so-called war on terrorism has done to our
Constitutional rights. This is why the current debate in
Congress over extending the provisions of the Patriot Act is
important.
To keep the Patriot Act as it is means more secrecy, more
disinformation and more repression. It is quite frankly, un-
American. It is behavior straight out of a totalitarian
state; tactics not worthy of the world's greatest democracy.
The average American thinks he or she is safe. But history
has shown us that when a regime has absolute power, it's only
a matter of time before anyone and everyone is subject to
official intimidation and attack.
Security and ``fighting terrorism'' are not suitable
pretexts for destroying more than two centuries of American
jurisprudence. The rule of law as enshrined in the
Constitution is supposed to still mean something in America.
It's time to demand that Congress and the Bush
administration respect our civil liberties. There shouldn't
be a discussion to modify or extend the Patriot Act.
Instead, Congress should be working to repeal it.
Mr. LEAHY. Mr. President, I thank the distinguished Senator from
Tennessee for his willingness to allow me to go forward at this time. I
know he has been sitting here patiently. I thank him, and I yield the
remainder of time.
The PRESIDING OFFICER. Under the previous order, the Senator from
Tennessee is recognized for 10 minutes.
Mr. ALEXANDER. Thank you, Mr. President.
____________________