[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

[[Page S13472]]

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

[[Page S13473]]

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

[[Page S13474]]

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

[[Page S13475]]

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.

                          ____________________