Congressional Record, Volume 151 Issue 159 (Tuesday, December 13, 2005)

[Congressional Record Volume 151, Number 159 (Tuesday, December 13, 2005)]
[Senate]
[Pages S13471-S13478]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

IRAQ

Mr. FEINGOLD. Mr. President, over the past few months, I have
addressed the Senate on a number of occasions about the
administration's flawed Iraq policies. I have discussed a number of
problems with those policies. But the most important problem is that
they are undermining our ability to counter a wide range of
transnational threats that face our country. In too many cases, these
threats have been overlooked or insufficiently addressed because of
this administration's misguided emphasis on policies in Iraq.
Today I will explain why we need to refocus our national security
strategy on the global campaign against terrorist networks, and I will
briefly identify five areas on which we need to focus. A clear,
targeted strategy to strengthen our national security is not an option
but a necessity in the face of the growing threats posed by jihadist
terrorist networks. The President is spending a lot of time talking
about success in Iraq. Unfortunately, he fails to recognize that
success in Iraq will not be achieved by a massive and indefinite U.S.
military presence. He appears to fail to understand the limited role
that the U.S. military can play in Iraq's long-term political and
economic reconstruction efforts. I am afraid to say, he fundamentally
fails to understand that success in Iraq, as important as it is, is
secondary to success in our larger campaign against global terrorists.
Iraq--simply put--is not the be all and end all of our national
security.
Our brave service men and women won a resounding victory in the
initial military operation in Iraq. They have performed magnificently
under very difficult circumstances. Now their task is largely over. The
current massive U.S. military presence, without a clear strategy and a
flexible timetable to finish the military mission in Iraq, is actually
fueling the insurgency and will ultimately prevent the very economic
and political progress that the Iraqis are demanding and that the
President has started to talk about in his speeches. This isn't a
strategy for success in Iraq or a strategy for success in the fight
against global terrorism. That is why we need a flexible timeline for
meeting clear benchmarks and also withdrawing U.S. troops.
I am not talking about an artificial timetable, a phrase the
President likes to use. I am calling for a public, flexible timetable
with clear benchmarks. I have suggested the end of December 2006 as a
target date for completion of that mission. But I have made clear that
any date will have to be flexible to respond to unforeseen
circumstances.
The administration has a unique opportunity this week to set our Iraq
policy on track. Iraqis will return to the polls on December 15 to
choose their leaders. Spelling out a plan for the timely withdrawal of
U.S. troops from Iraq will signal U.S. support for an autonomous,
independent, and self-sustaining Iraqi government. There is no better
way to empower the new Iraqi government and the Iraqi people than by
showing that the U.S. military mission in Iraq is not indefinite. If we
don't heed the advice of a growing chorus of experts to set a timetable
for withdrawal, it will be impossible to recenter our priorities and
reengage in the global campaign against terrorist networks.
And that is what we need to do in order to defeat those networks.
We have not kept our eye on the ball, Mr. President. We have focused
on Iraq to the exclusion of these critical priorities, and we have done
so at our peril. It is far past time for us to engage in a serious
dialogue about the threats we face, and come up with a tough,
comprehensive national security strategy to defeat them.
What are these threats and where do they come from? As we all know,
the jihadist network is global in its reach, and it is showing no signs
of slowing its recruitment and organization in every region of the
world. Since we waged war against the Taliban in the fall of 2001--a
war I supported, by the way--we have seen the network of extremist
jihadist movements proliferate throughout the world. We have seen it
surface in Madrid, London, Amman, Bali, and in places such as the
Philippines, Algeria, Pakistan, Somalia, and Nigeria. And while it has
spread throughout the world, it holds certain

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similar characteristics wherever it appears.
It is good to turn to the definition that the 9/11 Commission report
itself gave of what this threat is: ``the enemy is not Islam, the great
world faith, but a perversion of Islam.'' The report reads:

[t]he enemy goes beyond Al-Qaeda to include the radical
ideological movement inspired in part by Al-Qaeda that has
spawned other terrorists groups and violence. Thus our
strategy must match our means to two ends: dismantling the
Al-Qaeda network and in the long term prevailing over the
ideology that contributes to Islamist terrorism.

In order to reduce the danger of Al-Qaeda and radical jihadism all
over the world, we must invest our time, our attention, and our best
minds on this global threat. And we can't defeat it with just one
aspect of American power. We need to develop and execute a national
security strategy that utilizes our entire arsenal of political,
economic, diplomatic and military power in order to counter the primary
threats against us. I want to lay out five major areas of concern
today. They are (1) addressing the conditions in which terrorists
thrive; (2) enhancing our military's ability to wage the campaign
against global terrorists; (3) improving our public and private
diplomacy; (4) strengthening our non-proliferation efforts; and (5),
finally finishing the job in Afghanistan.

First, we must combat the conditions that make extremist ideologies
attractive and that allow terrorist networks to take root and grow.
Failed and weak states, such as Somalia, allow terrorism, narcotics
trade, weapons proliferation, and other forms of organized crime to
take root and grow. By not addressing these conditions, we allow
warlords and terrorists to thrive and we leave people suffering from
poverty and oppression susceptible to their rhetoric, promises, and
pressure.
Let us not forget that three of the poorest and most isolated
countries in the world--Somalia, Sudan, and Afghanistan--served as the
starting blocks for the terrorist network that delivered the most
lethal attack ever on the U.S. If it wasn't clear before September 11,
2001, it is now--we ignore these places at our national peril.
Over 4 years after 9/11, places like Somalia continue to be large,
black holes on our radar, and continue to create the conditions that
allow terrorist networks to recruit, train, and export their lethality
at will. While Somalia has remained a failed state for over a decade
now, recent examples of the lawlessness that exist within that country
made headlines when freely operating pirates attacked a civilian cruise
ship 25 miles off of the Somali coast. We can expect more headlines
like that if we continue to think that supposedly small, marginal
states are not worth our attention.
That is why we should be taking seriously the inability of Uganda,
the new government of southern Sudan, or the U.N. to defeat the Lords
Resistance Army, which continues to commit atrocities around the Great
Lakes region of central Africa. And we do not always have to look far
for failed states. Right here in our backyard, Haiti endures rampant
political violence and a festering humanitarian crisis, and has served
as a base for narcoterrorists and criminal power structures throughout
the region for over a decade. Unfortunately, this administration has
failed to develop a comprehensive policy to help Haiti lift itself from
chaos and to create livable conditions for the citizens of Haiti. That
is a mistake because leaving a country to suffer under chaos only
creates a platform for further threats to the region and to our
country.
If we fail to address weak and failed states, the lawlessness
displayed by warlords, pirates, bandits, thugs, and thieves there will
eventually be exploited by our enemies. After all, terrorists find
active and passive support among the alienated and the disaffected.
Addressing failed and failing states is not easy, but turning a blind
eye to them is naive and dangerous.
My second area of concern today is the need to prepare and equip our
military for a global campaign against terrorist networks. The war in
Iraq has had a devastating affect on our military's readiness and
capabilities. I have voted for an increase in the military's end
strength, but this is a long-term solution and does not address the
immediate problems we face as we continue to over-burden the brave men
and women of our armed forces. It also does not address our failure to
prioritize military spending. Right now, courageous servicemembers are
too often required to do their jobs without the right equipment. While
we continue to spend billions of dollars on Cold War-era weapons
systems, we are not fully funding the needs of the military personnel
fighting our current wars. It is a national shame that the Department
of Defense budget, which so dwarfs our spending in any other sector,
still has failed to pay for the timely provision of adequate armor for
our men and women in the battlefield.
Mr. President, waging a successful global campaign against terrorism
also will require us to counter new and growing terrorist tactics.
Improvised Explosive Devices, IEDs, continue to increase in lethality
and complexity in Iraq and elsewhere. I was pleased that Secretary
Rumsfeld recently appointed a retired general to lead a joint task
force on countering the threat of IEDs. As the death of 11 marines in
Iraq on December 5 showed, the U.S. military has yet to develop a
strategy or technology to sufficiently defend our servicemen and women
from these troubling weapons. More troubling is the fact that we are
now seeing the use of increasingly sophisticated IEDs outside of Iraq.
This know-how and technology is being proliferated throughout the
global network of terrorists who seek to harm the United States.

The IED task force needs to identify a strategy, tactics, technology,
and training to defend from these weapons, but it also needs to figure
out ways of countering the proliferation of IED technology, know-how,
and tactical training that are currently being exported from Iraq.
Tragically, Iraq has turned in to a testing-ground for these new
weapons, and the administration needs to explain not just how it is
countering the lethality of IEDs in Iraq, but also how it is mitigating
or preempting the use of these weapons by terrorist networks globally.
My third area of concern is our woefully inadequate diplomatic
efforts, public and private. As the recent 9/11 Commission report card
showed, we need to do much better in communicating our principles and
goals to the international community. In part we are failing because
this administration has not consistently adhered to the core American
values that have made us a model around the world, that helped defeat
communism, and that have inspired democracies globally. The
administration's approach to detainees, torture, and secret prisons, to
name a few issues, has jeopardized this country's unique moral
authority as a country that upholds the rights, liberties, and freedoms
of every individual. I believe that we can combat terrorism while
remaining true to those values.
Mr. President, we need a new, sustained and comprehensive public and
private diplomacy, and a concerted effort to tell the rest of the world
who we really are and what we really believe in. This diplomatic effort
is essential if we are going to prevail in what is in part a battle of
ideas--and one that we cannot afford to lose. I am not talking about
giving lectures or showing videos, but about engaging in genuine
dialogue with other peoples and countries. Listening, and responding
to, their concerns is one of the most effective ways to improve our
image, and thus our relationship, with the international community.
Diplomacy also involves looking for opportunities to demonstrate our
core values. One such opportunity was lost in the response to the
recent tragic earthquake in Pakistan where hundreds of local religious
organizations--many of them linked to extremist or anti-American
ideologies--beat out American relief efforts with quick, appropriate,
and thoughtful responses. A CEO of a U.S.-based relief agency, having
just returned from Pakistan, relayed to me his frustration that ``the
United States lost a significant opportunity to win the hearts and
minds of a core population in Pakistan vulnerable to extremist
ideologies because we responded with standard, boxed solutions.''
We also need to engage our international partners not only in the
campaign against terrorist networks, but also in the challenge to
eradicate malaria, address HIV/AIDS, help rebuild

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countries such as the Democratic Republic of the Congo, bring peace to
the Darfur region in Sudan, and help counter the impact that illicit
power structures and the absence of rule of law have on societies
around the world, to give just a few examples. We need to work hand in
hand with those partners in developing strategies to isolate rogue
states and to advance democracy and respect for human rights.
The fourth area we need to focus on is the proliferation of weapons,
large and small. We need to do much more to stop nuclear proliferation
and ensure that terrorist organizations do not obtain access to nuclear
weapons. We must deal with the threats of loose nukes as an urgent
priority both at home and abroad. This administration unfortunately has
failed to do so. More nuclear weapons were secured in Russia in the 2
years before 9/11 than in the 2 years after. That is an alarming fact.
And we should not have missed the opportunity at the last Nuclear Non-
Proliferation Treaty conference to start moving forward on a new global
regime; one that does a better job of protection and punishing cheating
so that states cannot take their nuclear programs right up to the line
of compliance and then withdraw from the treaty when they are ready to
become new nuclear weapons states.
We should also reverse the foolish decision to ease export
restrictions on bomb-grade uranium that was part of the massive and
misguided Energy bill signed by the President this summer.
We must also focus on smaller weapons that continue to fall into the
hands of terrorist networks at a cost of tens of thousands of lives
each year. I applaud the recent announcement by my distinguished
colleagues, Senators Lugar and Obama, of their initiative to make more
funding and new authorities available for new proliferation programs
and to counter the growing threat that light weapons, such as the Man
Portable Air Defense System, pose to the United States.
Unfortunately, we are behind the ball on this issue, and we need to
drastically improve our ability to hunt down, shut down, and capture
the networks of arms dealers that are getting rich by selling weapons
to our enemies.
Fifth and finally, we must refocus our energies on Afghanistan. The
President spends a lot of time discussing Iraq, but not much time on
Afghanistan which was and maybe still is home to Osama bin Laden.
Unlike our presence in Iraq, our presence in Afghanistan is
contributing to increased stability in the country and region and is
delivering progress in the war on al-Qaida.
Success in Afghanistan is essential for making progress in the
campaign against terrorist networks, and it is where we must show the
commitment, resolution, and capabilities of America. It is one of the
first battlefields in this war. We now have the opportunity to turn
what was once a despotic and broken country into a thriving democracy.
It needs a lot of work, though, and disproportionate attention to Iraq
has drained many of our positive and appreciated efforts in
Afghanistan.
I see three major areas that need further attention in Afghanistan.
First, as part of assuring long-term success in Afghanistan, we need
to ensure that international assistance, much of it from the United
States, continues to be targeted, coordinated, and appropriate. We are
running the risk of creating a ``Donor's Republic of Afghanistan'' by
creating an unsustainable Afghan Government that the Afghans themselves
cannot afford or manage. At this time, annual recurring costs to
maintain the U.S.-developed Afghan National Army outweigh the central
Government's revenue streams by a multiple of two or three. And this is
not taking into consideration the police force and other essential
public services that are in drastic disrepair or in need of further
development.
Second, we need to continue burden sharing throughout the
international community and encouraging a greater role for NATO, the
United Nations and, most importantly, the Afghan Government, as it
struggles to fight resurgent terrorist and obstructionist threats.
I was glad to receive news last week that NATO will increase its
presence in southern Afghanistan, but we need to assure that long-term
development and security aid is tied to measurable benchmarks for
success.
Third, we need to continue to pressure countries such as Pakistan,
Iran, China, Russia, Turkmenistan, Kyrgyzstan, and others to be
constructive partners in the development of Afghanistan's new and
fragile government and economy. Afghanistan is suffering from porous
borders which make it an ideal environment for a thriving illegal drug
trade, illegal imports and exports, and terrorists and insurgents who
want to prevent the new Afghan Government from developing.
We have to succeed in Afghanistan. If we allow the new Afghan
Government to become weak, feckless, and corrupt, we will risk losing
everything we have invested. We will lose a partner in the campaign
against terrorist networks, and we will lose the opportunity to point
to Afghanistan as an accomplishment.
I have tried to identify five crucial areas in which we are not doing
enough to protect our national security. We are not doing enough for a
number of reasons, but foremost among them is the administration's
single-minded and self-defeating emphasis on Iraq. The President's
debilitating and misguided Iraq policy is preventing us from focusing
our attention, our resources, and our efforts on the global campaign
against terrorist networks. That is why we need a plan to wind down our
military presence in Iraq and bring our focus back to the threat of
radical jihadist-based terrorism.

While this administration talks and thinks about Iraq, our enemies
are growing stronger around the globe. Those enemies are disparate,
diffuse, and relentless. They operate in ungoverned spaces, on the
Internet, in cities, mountains, and jungles. Left unchecked, they will
continue to plot against the United States.
Our national security policy is adrift, but we have the power to
change it, to correct our course. We must tackle these challenges and
build a security strategy that protects our Nation from the most
dangerous threat that it faces.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Burr). The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, before the Senator from Wisconsin leaves
the floor, I request that he be available to discuss some of the
provisions of the PATRIOT Act. I see him remaining on the floor, so
permit me at this time to take up a couple of the issues which the
Senator from Wisconsin has raised, appropriately putting my question to
the Chair as our rules require, and then asking for responses.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. The Senator from Wisconsin has raised an issue on the
national security letters with respect to the presumption which arises
when a high-ranking governmental official, such as the Attorney
General, Deputy Attorney General, Assistant Attorney General, head of
the FBI, or head of the departments making the request, certifies that
there is a national security interest or an issue of diplomatic
relations.
This is an issue which, as I understand it, the ranking member, the
Senator from Vermont, Mr. Leahy, raised earlier. The question I have
for the Senator from Wisconsin is whether he is aware of the fact that
the conclusive presumption, which is present in the conference report,
is not as tight as the conclusive presumption which was present in the
Senate bill which passed unanimously from the Judiciary Committee, of
which the Senator from Wisconsin is a member, and by unanimous consent
on the floor of the Senate, without objection by the Senator from
Wisconsin.
I refer specifically to the provision in the Senate bill which says:
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.
That language is substantially repeated in the conference report,
except that the conference report makes it tougher on the governmental
certification by requiring the high-level official to make the
certification.
Quoting from the conference report, it says: If at the time of the
petition

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the Attorney General, the Deputy Attorney General and 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--and now we come to the crucial language, continuing--
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.
My questions to the Senator from Wisconsin are the obvious ones: No.
1, was he aware that the conference report has the identical provision,
except more restrictive, and if so, why does he now object to this
provision in the conference report when he approved it in committee and
raised no objection on the floor?
Mr. FEINGOLD. As the Senator well knows, on the floor we passed this
bill by unanimous consent, without debate, but I and others raised our
concerns in the Judiciary Committee. The Senator well knows I was not
pleased with the outcome on this provision in the Senate. I fought hard
to get as many changes as possible, but we did not get the changes we
needed with regard to national security letters, and the conference
report failed to improve this provision as it should have done.
The Senator is correct, as I understand it, that the Senate version
did not change much of existing law in this area, and the conference
report is essentially the same. The conference report did not include
the national security letter standard that a bipartisan group sought,
three Democrats and three Republicans, as well as other cosponsors of
the SAFE Act, which is that the Government can only obtain records that
pertain to a terrorist and spy.
In addition, in answer to the Senator's question, the judicial review
of the NSL gag rule in the conference report also is inadequate. In the
SAFE Act, we included meaningful judicial review of national security
letters and the NSL gag rule. Under the Senate version, there is
judicial review of national security letters and gag rule, but there
again, disappointedly, even the Senate version of the bill failed to
create a standard that was realistic. It created a standard for the gag
rule that would be virtually impossible to meet.
Of course, the areas that caused me to vote for the Senate bill were
the improvements it contained, especially the change to Section 215,
which we have lost; on sneak and peak search warrants, which was
largely pulled back; and on John Doe roving wiretaps, which have been
only partially preserved.
The point is that I was not happy with this portion, but in light of
some of the other changes in the Senate bill, I did work, as the
Chairman knows, cooperatively with him to create a document that at
least had some balance. What has happened now is we have lost the
positive changes we gained in the Senate bill, and we continue to have
a very inadequate provision relating to the national security letter
authority.
Mr. SPECTER. Mr. President, with all due respect, the Senator from
Wisconsin has not answered my question. When he takes up the SAFE Act,
which he cosponsored, so did this Senator. I was not satisfied with the
provisions of the PATRIOT Act in effect at the present time, and I was
a cosponsor of the same bill as the Senator from Wisconsin, Senator
Durbin, and others, in order to protect civil liberties, which I sought
to do in the Senate bill and I sought to do, and I think successfully,
in the conference report.
When the Senator from Wisconsin talks about Section 215, I am coming
to that and I wish to engage him in a discussion on that specifically,
but let me put it aside for a minute so as not to confuse that issue.
With respect to sneak and peak, the delayed notice, I am coming to that
as well because there are major, vast improvements in the conference
report over existing law. With respect to the roving wiretaps, I am
coming to that, too. But focusing for just a minute one at a time so
there can be some understanding--this is a very complicated bill. I
spoke on it at some length yesterday afternoon in order to acquaint my
colleagues with it. I have made quite a number of calls to my
colleagues, as far as I can go, to acquaint people with what is in this
bill so we can understand it and vote on it with an understanding.
Coming back to the conclusive presumption in the national security
letter, the question I posed to the Senator from Wisconsin was
whether--well, maybe three questions. Does not he agree that the
conference report is even more protective of civil liberties than the
Senate bill? The second question: Did he know about it? And if on this
provision alone, putting aside the others he referred to, 215, sneak
and peak, and wiretap, and we want to come to sunset, too, which is a
gigantic improvement--it was not mentioned by the Senator from
Wisconsin. I think when we get to that he will concede that was a big
improvement and maybe he overlooked it in commenting or at least any
comment that I heard him make. But coming back to the national
security letter, what about my three questions, if I may pose them
through the Chair to the Senator from Wisconsin?

Mr. FEINGOLD. I would say to the chairman through the Presiding
Officer, I did respond to his question, and I can tell him that I was
aware of the changes that occurred in the conference report vis-a-vis
the Senate bill. They are not adequate. We are still very far away from
the SAFE Act with regard to this provision. I note that the chairman
cosponsored the SAFE Act and yet did not object, apparently, to the
significant withdrawal from the SAFE Act provisions in this area. What
we need in this provision on these national security letters to prevent
potential abuses, as well as the abuses that may well be already
occurring--the Washington Post suggested some 30,000 national security
letters per year--is a clear standard that these provisions can only be
used to obtain records that pertain to a terrorist or a spy. Neither
the Senate version nor the version in the conference report achieves
that. So, yes, I acknowledge there are some language differences, but I
do not believe they achieve what we need to achieve with regard to
national security letters.
Mr. SPECTER. Mr. President, the Senator from Wisconsin does not know
what I did in conference because he was not a conferee. There is no
reason why he should know. But I can tell him that I fought very hard
for a lot of these provisions, and I can tell him further that I was
not persuasive enough to get 100 percent of what I wanted.
Mr. FEINGOLD. Mr. President, I would like to say----
Mr. SPECTER. Wait just a minute. I have the floor. I want to finish
this, and I will come back to the Senator from Wisconsin and give him
ample time to comment on what he wants to comment on.
We have a bicameral system. If the Senate could act alone, we would
have had the Senate bill. When the Senator from Wisconsin says he was
not satisfied with this provision in the Senate bill contrasted with
the SAFE Act, I would not disagree with him about that. I will not
disagree with him about that at all. In the Senate bill, I did not have
everything that I would like. There are 17 other members of the
Judiciary Committee and there are many members who thought the Senate
bill went too far on civil rights. It was necessary to balance very
delicately to get 18 Senators to agree, sort of unheard of, and I will
not go over the composition of the committee, but we have people from
opposite ends of the political spectrum on that committee.
Mr. FEINGOLD. Mr. President, would the Senator yield so I can respond
to his comment?
Mr. SPECTER. One moment, and then I will yield for the Senator's
reply.
The point is, the Senate came to this conclusive presumption and the
Senator from Wisconsin voted for it. The full Senate came to this
conclusion. The Senator from Wisconsin did not object to it. So I think
it is rather late in the day--frankly, too late in the day--for the
Senator from Wisconsin to say that a provision which he has approved is
the basis for rejecting the conference report because the conference
report did not do something he would have liked better.
Now, without yielding the floor, I ask unanimous consent that the
Senator

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from Wisconsin be allowed to make whatever comments he chooses on this
point.
Mr. FEINGOLD. Mr. President, the first thing I want to say is that
the Senator from Pennsylvania is not the problem here. Everything he
has said is accurate. He fought tenaciously in the committee, and I
think brilliantly, to bring us together in a balanced package. I say to
the Senator, through the Presiding Officer, I am grateful for his
efforts in the Judiciary Committee and the Senate as a whole, and for
his efforts in the conference committee, because I know the Senator
tried. What happened in the Senate was that the will of this body as a
whole, which we all compromised on, prevailed. The Senator from
Pennsylvania correctly points out that I had to give, unfortunately, on
this national security letter issue, to get the important changes
regarding library records, sneak-and-peek searches, and sunsets.
The fact is, I say to the Senator that of course I objected to that
provision. But I was trying to work with the Senator to come up with a
balanced package, as Senator Sununu and I were commenting earlier, a
package we could support as a whole. The Senator is now suggesting that
after we made some gains and we lost some issues, I should now accept
the one part we did not prevail on and give up the parts I did prevail
on. That strikes me as a rather odd deal.
It was, as the Senator knows, a very difficult vote for me to support
the Senate package. I was the only Member of this body to vote against
the original PATRIOT Act because it was deeply flawed, and the Senator
from Pennsylvania and many others have acknowledged there were such
flaws and we have worked together to fix what we could. I was
determined, as I said at the time we passed the Senate bill, to work
with my colleagues to fix the other flaws, especially those in the
national security letters.
But this idea that when you get the package back and it only includes
the things you don't like and it doesn't include the things you did
like, that you should keep your mouth shut and you should not oppose
it, that to me is ridiculous.
Mr. President, I say to the Senator, and I mean it absolutely
sincerely, he has been a tremendous chairman. He has been one of the
real keys to us having any chance at all to fix this legislation. But I
am very disappointed with what we got back from the conference
committee. I know very well that the chairman did not want this
document to look like this. He wanted it, I assume, to look like the
very document he crafted in the Senate Judiciary Committee.
I yield back to the Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I do not disagree with everything the
Senator from Wisconsin has said. In fact, I like part of it where he
said I was brilliant, I like the part where he said I was a tremendous
chairman, but there were other parts with which I disagree as to what
he said.
A little levity will not hurt this debate any.
I focus only on national security letters at the outset, to establish
the point that the conference report is more protective of civil
liberties on that point than the Senate bill. I want to go on to the
other points. I have only faint hopes of persuading the Senator from
Wisconsin to support the conference report, but I do think it is very
useful to have this discussion because he is, appropriately, very
deeply involved in this bill and there is no better way to acquaint our
colleagues and the staffs--perhaps two or three people watching on C-
SPAN2--to acquaint America, to the extent we can, with what we are
doing here.
On to section 215: Section 215 involves business records and the
highly controversial point on library records. The Senator from
Wisconsin is correct that the existing law is deeply flawed. Bear in
mind, we are living under that law until we pass a new law. That is the
law we are operating under today. Existing law enables a law
enforcement official unilaterally to go to get records on his
determination that they are relevant, and there is no judicial review.
What the Senate bill did, and what the conference report perpetuates,
is to put in judicial review. The traditional safeguard of liberty has
been to interpose a disinterested, impartial magistrate between law
enforcement and the citizen. That is what happens when you get a
search-and-seizure warrant to establish probable cause. That is what
happens when you get an arrest warrant to take somebody into custody.
We have moved substantially toward that cause, although not quite
probable cause for a search warrant or an arrest warrant, but a very
substantial portion of the way by the Senate bill, which is perpetuated
in the conference report, that a 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.''
The Senate bill established three criteria for the relevant standard.
First, activities of a suspected agent of a foreign power; second, a
foreign power or agent of a foreign power; third, an individual in
contact with or known to a suspected agent of a foreign power. In
conference we did add an additional provision, which the Senator from
Wisconsin has objected to. The additional provision is that the judge
may order the production of records of an individual where the judge
concludes those records are important--crucial to the investigation, to
a terrorism investigation.
If I had my druthers, I wouldn't have put the provision in, but we
had a closed-door briefing where the Department of Justice came in and
showed us what they consider to be needed. I thought it was within the
realm of reason, but I knew it would be an obstacle to getting the law
put into effect and getting support for that provision, and I opposed
it. But when I recognized that there are other points of view besides
mine and besides the Senate's, and without a lot of other major
concessions on the national security letter, which I have already
described and will come back to--there were more concessions we got
there--it seemed to me that provision was acceptable.
The question which I have for the Senator from Wisconsin is whether
he has had an opportunity to get that briefing? Last Thursday, I asked
my Chief Counsel, who has done such an extraordinary job, Michael
O'Neill--who was here a moment or two ago; he's probably too busy to
stay and listen to his speeches--to make a briefing available to the
Senator or his staff. My question to the Senator from Wisconsin is, No.
1, if he has had an opportunity to get that briefing; No. 2, if so,
what he thought of it with respect to the weightiness of what the
Department of Justice had to say; and, No. 3, if this modest addition
is so significant as to sink--or in conjunction with other similarly
unweighty matters--sink the bill?
Mr. FEINGOLD. In response to the Senator from Pennsylvania, the
Senator knows very well I am familiar with what went on in that
briefing. You and I spoke here outside this Senate Chamber about these
very provisions. I indicated to the Senator that I had my staff, who
received this briefing, go over with me, in a secure setting, exactly
the hypotheticals that those who wanted this additional provision in
the conference report raised. My staff and I looked at those
hypotheticals and were very unpersuaded.
Here is the significance. What the Senator from Pennsylvania is
suggesting is that it is not a major change to add, on top of the
three-part test of the Senate, an additional provision that merely
requires relevance. This is a big deal, because the other three
provisions require that the records pertain to a terrorist or spy, or
records of people in contact with or known to a terrorist or spy, or
relevant to the activities of a terrorist or spy. All three of those
tests require something closer to the connection that the Senator from
Pennsylvania and I demanded in the SAFE Act.
The additional item put in the conference report is the loophole, the
exception, that swallows that three-part test. It does not require the
connection to the terrorist or spy, even though this legislation, from
the very outset, was supposed to be a response to what happened on 9/
11, to terrorism. This does gut the changes to section 215 that are in
the Senate bill. This does render meaningless the efforts you and I and

[[Page S13476]]

others made to get a good provision in the Senate. And, yes, it is a
sufficient reason not to go forward.
The feelings the American people have about this poorly drafted
section 215 cannot be answered by a provision that simply demands
general relevance and does not require a connection to terrorism or
espionage. It is unacceptable. And on that ground alone, although there
are other grounds, it is very disturbing.
I want to say that the Senator, my colleague and friend, did try
hard. He said earlier that if he had his druthers he would have
preferred a better provision. This isn't about druthers. This is about
a devastating power of the Government to be able to go and take your
library records on some general notion of relevance that has nothing to
do with any connection to terrorism or espionage. That is unacceptable
in America, and under our Bill of Rights.
Mr. SPECTER. Mr. President, I did not acquiesce in this matter simply
as a matter of druthers or nondruthers. I acquiesced in this matter
because it was, as a total scheme of things, acceptable. There was
adequate protection. It is not, as the Senator from Wisconsin defines
it, broad-ranging authority of a judge. The impartial judicial official
has to agree that it is a terrorism investigation, and that these
records are crucial and important to the investigation, that they are
relevant to the investigation, and it is not something that is
extraneous but it is a terrorism investigation.
I focus on this matter again not with any expectation of persuading
the Senator from Wisconsin but to tell my colleagues why he is
objecting to this provision, and to invite my colleagues, the other 98
Senators, if they want the briefing, to see why there were sensible
reasons for the Department of Justice and the details of this provision
not going too far, not impinging on civil liberties because I wouldn't
support a bill which impinged on civil liberties. I simply wouldn't do
it. But there are others who have contentions, and we had a great many
concessions from the House of Representatives.
I have taken up the two principal considerations which the Senator
from Wisconsin was arguing, the conclusive presumption in the national
security letter and this additional provision under section 215.
But I want to come back for a moment to the national security letter
on important concessions which the Senate obtained in the conference
report, first, to point out that the national security letter was not
established by the PATRIOT Act which we enacted shortly after 9/11. The
national security letters have been in existence for decades. But the
Senate utilized the revisions to the PATRIOT Act to put limitations on
the national security letters because they fit within the overall
parameters. We have some very important concessions on national
security letters in the conference report. The standard has always been
that if you had a national security letter, you kept quiet about it,
the recipient did. There was no explicit opportunity for the recipient
of a national security letter to challenge it. But the conference
report fixing up the Senate provision explicitly gives the recipient of
a national security letter the right to contact an attorney, to go to
court, and to have a national security letter quashed, if it is
unreasonable, oppressive, or otherwise contrary to law. The recipient
also has the power to get a court order to tell the target. That is
subject to a certification by these high-ranking governmental officials
that it would endanger national security or diplomatic relations.
But again, the provision in the conference report is more protective
of civil liberties than what was in the Senate report. On this
provision on national security letters, the conference report goes much
further than existing law. Again, the national security letters were
not covered in the PATRIOT Act.
I don't have a question for the Senator from Wisconsin. I will come
to some later, but I ask unanimous consent that I might yield to the
Senator, if he cares to reply at this point to what I have said,
without losing my right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I say to the Senator that I meant what I
said about his efforts and his sincere desire to try to fix these
provisions, and that is what we started to do in the Senate version.
Second, I do think this is an excellent process, that we need to come
out here on the floor and be very specific about what is right and what
is wrong about these provisions. It is neither sufficient to say to our
colleagues that we have to pass it as it is because the time is running
out, nor is it sufficient for somebody on my side to say, look, this is
an enormously dangerous, unfixable provision and the whole thing should
go down. Neither of those positions is defensible. What is defensible
is to look at each of these provisions as we have been doing and ask if
we have done enough to protect law-abiding Americans. I come to the
conclusion that we were very close, had maybe even achieved that with
regard to section 215. But the conference report failed in that regard,
and it brings us back far too close to the original mistake.
On the national security letters, I am not impressed by the
improvements of the Senate version, which I didn't find to be adequate
in the first place. So with regard to both of those, not to mention the
sneak-and-peek searches that we will discuss later on, the conference
report simply does not do the job.
I do recognize the Senator's sincere desire to make sure the Senate
is well informed about the remaining issues that could affect how
Members vote on the conference report.
I yield the floor.
Mr. SPECTER. Mr. President, the national security letters are
stronger in the conference report than they were in the Senate bill.
The conclusive presumption in the conference report is more protective
than the language in the Senate bill on conclusive presumption. The
conference report picking up the Senate bill provisions improves the
civil liberties protection from existing law by the explicit right of
the recipient to go to court to quash or to make the disclosure to the
target.
Mr. FEINGOLD. Mr. President, if I could make one remark, and then I
will have to leave. If the Senator will yield.
Mr. SPECTER. I will yield on the condition that I not lose my right
to the floor.
Mr. FEINGOLD. On the national security letters, we will have to agree
to disagree and continue to debate this and come to a similar
conclusion with regard to what the conference report did vis-a-vis the
Senate bill. Perhaps we could agree on how valuable it would be in
light of how serious these concerns are about the national security
letters, for that provision at least to be part of the group of
provisions subject to a sunset.
I want to point out to my colleagues with regard to these national
security letters that there may have been 30,000 issued, according to
the Washington Post, per year. That power is not sunsetted. That is
troubling.
I yield the floor.
Mr. SPECTER. Mr. President, I suggest that the Senator from Wisconsin
get a classified briefing and not accept what he reads in the
Washington Post. The Washington Post is wrong. I hope the Senator from
Wisconsin will not leave the floor. If I can have the attention of the
Senator from Wisconsin, I hope he will not leave the floor while I make
a couple of other comments. I will try to be brief, although I don't
think it has been extensive so far.
Mr. FEINGOLD. I appreciate that. I need to leave briefly. I will be
right back, but I enjoy this process. I need to take care of one
matter, and I look forward to returning to continue this discussion.
Mr. SPECTER. Let me be brief with one comment about 30,000. I urge
the Senator from Wisconsin to get a classified briefing and not to take
the facts of the Washington Post, because the Washington Post is
totally wrong. I am not at liberty to tell the Senator what the facts
are, although I asked the Department of Justice to put those facts
before the public. Too much is classified, and I think this is
inappropriately classified. I would like to be able to detail it.
Let me talk about the delayed notice provisions.
Existing law provides for notification of the target in a reasonable
period of time, which could mean anything. The Senate bill called for 7
days, the House

[[Page S13477]]

bill wanted 180 days, and we got 30 days.
I suggest in the totality of the legislation that we are in the 85 to
15-percent range, 85-percent Senate provisions, 15-percent House
provisions, and the 15 percent which the House has does not impinge on
civil liberties. I wouldn't take 1 percent if this were an
inappropriate impingement on civil liberties. The 30 days can be
extended by a court on cause shown for specific reasons.
With respect to the wiretap provision, I joined the Senator from
Wisconsin in opposing the roving wiretaps. I have never liked wiretaps.
When I was district attorney for Philadelphia, this issue came up for
consideration of our body, and I was the only one of 67 county district
attorneys to object to wiretapping.
Since I can only be brief here, I would invite my colleagues again--I
know I am not going to persuade the Senator from Wisconsin. In talking
about the late notice and talking about the wiretap provisions, I want
my colleagues to look at the details as to how we have protected
against random selection on the specification, a description of the
person who is to be wiretapped, and showing that the person subject to
the wiretap is likely to try to avoid the wiretap.

The final comment I have to make is about sunsetting. The House put
in a provision for a 10-year sunset. The Senate put in a provision for
a 4-year sunset. The House wanted the compromise of 7 years, halfway
between 4 and 10. The Senate conferees insisted on a compromise at 4
years. The House said it was not much of a compromise, not when they
were at 10 and the Senate was at 4 years. I thank the White House for
assistance in working this detail out. We did so on the expectation
that by working the sunset to 4 years, we would have a number of
Senators' signatures on the conference report and a number of House
signatures on the conference report.
I am not going to wash that linen in public as to what happened but
only to say that our ability to review this bill at 4 years is a mighty
potent weapon to keep law enforcement on its toes, knowing it is going
to be subject to review in that period of time.
I have pledged privately and publicly and again in the Senate
yesterday to have extensive and piercing oversight as to what law
enforcement does. I think the Senator from Wisconsin will agree on the
point that in the year I have been chairman, there has been real
oversight. We have called for it and done a job here.
The debate has been very useful. I don't have any questions to pose
to the Senator from Wisconsin. I am glad he is here to respond so the
other side can be articulated and so my colleagues can make their own
evaluation as to the weight of the objection of the Senator from
Wisconsin to section 215, which is very limited to that one additional
provision, which is justified, so they can evaluate his objection to
the national security letters where the conclusive presumption is
tighter in the conference report than in the Senate version and other
protections, and the protections on delayed notice, so-called sneak and
peek, and wiretaps, and then especially on sunset.
The debate is very illuminating and does more than the speech I gave
yesterday. There is nothing as dull as a speech on the Senate floor and
nothing as lively as a little debate. This Senate has very little
debate, very little exchange of ideas where Senators come and in a
respectful way pose questions and in a respectful way give answers to
illuminate rather than obfuscate; no table-pounding.
I thank the Senator from Wisconsin for what he has done this year on
the committee and for his thoughtful approach here, albeit wrong,
albeit not persuasive and should not carry the day. I thank him for his
contribution.
Without yielding the floor, I ask unanimous consent I may yield to
the Senator from Wisconsin without losing the floor.
The PRESIDING OFFICER (Mr. Chambliss). Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, I am thoroughly enjoying this, and I
came out here and described the Senator again as valiant on this issue.
But I am getting a little worried as we start reviewing each of these
provisions. The Senator from Pennsylvania voted for every single one of
these provisions that I have talked about as part of the Senate
version. There was a reason we drafted it that way.
When the Senator properly puts me through my paces on each of these
issues and I identify my remaining objections and he minimizes the
objections--keep in mind he already voted for those very provisions; he
voted for exactly these provisions in the Senate bill. So when I point
out on section 215 that a general relevance standard is not a
sufficient protection and he agrees on the record that was troubling to
him, it seems to me that is a valid issue to be concerned about.
With regard to the sneak-and-peek provision, the Senator did not
vote, when he voted in the Senate, for 30 days' permission for a sneak
and peek and a 90-day extension after that; he voted for 7 days,
because the Senator from Pennsylvania knows as well as any Member in
this Senate that the idea of a sneak-and-peek search in the first place
is a very troubling exception to the fourth amendment protection that
every American has against unreasonable searches and seizures. This is
a very narrow exception. When the Senate voted in the Senate, he did
not vote for 30 days. He did not vote for a period of time that is over
four times larger than 7 days; he voted for 7 days. To now suggest this
is somehow a trivial concern is not consistent with either the
Senator's record on this particular legislation or consistent with his
apparent cosponsorship of the SAFE Act in the past.
This debate is valuable, but when the Senator actually lists these
all together as he has done, the only thing I can agree with him on
is--and I am grateful--that the sunsets have been preserved. That is
positive.
Let me say, the Senator cosponsored the SAFE Act. He knows some of
the things we are sunsetting potentially permit the violations of the
rights of innocent and law-biding Americans. A sunset is only a
secondary level of protection that essentially says, Look, people's
rights might be violated now, but at least we will have a chance to
change it later. The idea of simply prevailing on the sunsets, which
allow violations to continue without changing the substance of the law
to protect Americans' rights and civil rights liberties, is not a
sufficient reason to vote for the conference report. But I do look
forward to further exchange with the Senator on this as the week goes
on.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. I thank the Senator from Wisconsin.
The last comments made the argument better than I have during the
course of the last hour when he chastises me for agreeing to 30 days
when I voted for 7 days but the House bill has 180 days. That is a
reason to vote against the bill. He has made my case.
When you take up an issue about what is fair and appropriate and
adequately protective of civil rights as to when the target should be
notified as to a surreptitious or secret search of his apartment, and
you have an existing bill which says a reasonable period of time--which
could be anything--and the Senate comes in at 7 days and the House
comes in at 180 days, there is no real concession on civil liberties.
The House made a concession of 150 days, from 180 to 30. The Senate
made a concession of 23 days, from 7 to 30.
I ask the other 98 Senators whether this is a meritorious argument, a
weighty argument, or more of scintilla. That is an expression we use in
the law when the item has virtually no weight. In the common law, they
talk about a peppercorn being adequate for consideration. But this is a
scintilla. Maybe this is not even a scintilla, to say a concession from
7 to 30 days is meaningful.
I am glad the Senator from Wisconsin made that as his final,
persuasive, overwhelming argument because that illustrates the
flimsiness of the considerations.
Mr. FEINGOLD. Mr. President, because of the last exchange, that will
not be----
Mr. SPECTER. I have the floor, but I will yield to the Senator from
Wisconsin on unanimous consent. I saw Senator Byrd one day perfect
this, and I will not make a mistake of yielding without reserving the
right to the floor.

[[Page S13478]]

Mr. FEINGOLD. I have no desire----
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. I have no desire to take the floor away from the
Senator from Pennsylvania, but back where I live, when the Government
comes into your home and you do not know they have been rummaging
around in your house and you find out 7 days later that they did this,
you are upset. If you do not find out for 30 days, where I come from
that is not a scintilla; that is a big deal. The U.S. Government coming
into your house without giving you notice, as people expect under the
fourth amendment, is not a triviality.
It is at the very core of one of the most important provisions of the
Bill of Rights. I am not sure I am, in the end, even comfortable with
this concept of a sneak and peek search. I think it has been
demonstrated it may be needed in some cases, but why in the world can't
a judge have to renew that every 7 days?
It is not a matter of trivia to the people of my State that the
Government can come into their house without notice under the fourth
amendment. And I reject the idea that it is a minor difference between
7 and 30 days.
Mr. SPECTER. Mr. President, the problem with the renewed argument by
the Senator from Wisconsin is not on 7 days or 30 days, it is on 1 day.
It is on any sneak and peek. It is on any delayed notification. Law
enforcement has that latitude because they need to continue the
investigation. If a disclosure is made, it will impede an
investigation. A short period of time enables them to continue the
investigation without alerting the target.
One day would be too long for the argument which is made by the
Senator from Wisconsin. We are conducting this debate as if we have a
law enforcement community in this country made up totally of rogues who
have no regard for the rights of the individual. And when they get a
delayed notice warrant, bear in mind, my colleagues and the Senator
from Wisconsin, they have gotten judicial review on this sneak-and-peek
warrant. On this delayed notification warrant, they have gone to a
judge and have gotten leeway on standards which are set forth and
articulated in the PATRIOT Act.
Mr. President, the Senate is not in order.
The PRESIDING OFFICER. The Senator is correct.
The Senate will come to order.
Mr. SPECTER. Back to the substance of the argument: this period of
time, the less, the closer to the Senate position the better. But this
is not some random act of a rogue law enforcement officer. This is a
delayed notice warrant which has been obtained by going to an impartial
magistrate and by showing cause and by showing reason to have this
delayed notice.
Mr. President, the Senator from New Hampshire was on the floor
earlier today and has raised a number of arguments. I see other of my
colleagues on the floor seeking recognition so I will not take these up
at this time. But I would invite my colleagues to examine what the
Senator from New Hampshire has had to say in the context of the debate
which I have had with the Senator from Wisconsin because I think they
are covered. But I will want to deal with them specifically.
I would point out--I am looking through the transcript for a moment
on some of the things which he has had to say. There are also some
comments made by the Senator from Vermont, the distinguished ranking
member, which I will comment about later. We will have a debate.

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