[Congressional Record Volume 151, Number 160 (Wednesday, December 14, 2005)]
[Senate]
[Pages S13519-S13521]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              PATRIOT ACT

  Mr. DURBIN. Mr. President, shortly after 9/11 we came together on a 
bipartisan basis in Congress to try to make certain that terrible 
tragedy was never repeated. We worked on a bipartisan basis to give 
tools to our Government to fight terrorism, to upgrade the laws of the 
United States so our Government could stay ahead of the curve when it 
came to that threat. We understood then, as we do now, that those tools 
were necessary for our Government, and we understood as well that 
preventing terrorism is the most important and the most valid exercise 
of governmental responsibility.
  But we were concerned, concerned that at that moment in our history 
we were responding quickly, perhaps emotionally, to the threat and to 
the tragedy of September 11. So in the wisdom of both Republican and 
Democratic legislators, we included in the PATRIOT Act this new set of 
tools to fight terrorism, sunset provisions. We said: Four years from 
now we will take another look at it. We are going to try to decide at 
that point in time if we went too far because at issue here was not 
just fighting terrorism but our basic rights and liberties.
  Giving the Government more power over the people in this country may 
be necessary in some regards to deal with terrorism, but we should 
always do it carefully because our basic rights and liberties, as 
guaranteed by our Constitution and the tradition of our laws, are 
things we are all sworn to uphold and protect. So the PATRIOT Act was 
passed on a bipartisan basis with only one dissenting vote in the 
Senate and included these sunset provisions.
  Well, the calendar has run, it is 4 years later, and now again we are 
looking at this PATRIOT Act. I found it interesting that there were 
certain provisions of this act which were obviously accepted by the 
American people, provisions which gave the Government more authority. 
But there were several that became controversial. And over the years, 
since the act was first passed, a number of Members of the Senate 
started asking questions about whether perhaps we did go too far in 
passing the PATRIOT Act. It led to the introduction of legislation 
which I cosponsored with Senator Larry Craig of Idaho entitled ``the 
SAFE Act,'' an attempt not to repeal the PATRIOT Act but to change some 
provisions which may have gone too far.
  It was an interesting bill by political standards because the 
cosponsors could not be more different. Senator Craig is a very 
conservative Republican from Idaho. I, of course, am a Democrat from a 
blue State in Illinois. Yet we came together and believed we had a 
common goal of giving the Government enough power to deal with 
terrorism and protect us but not too much power to take away our basic 
rights and liberties. We attracted cosponsors from both sides of the 
aisle--Senator John Sununu of New Hampshire; Senator Lisa Murkowski of 
Alaska; Senator Russ Feingold, who has been a very able leader on this 
whole issue, as well as Senator Ken Salazar, former attorney general of 
the State of Colorado. We have all come together to try to make certain 
that rewriting the PATRIOT Act on this 4-year anniversary is done in a 
responsible fashion.
  We could not have had a better outcome in the Senate. I cannot think 
of one. We passed our revision of the PATRIOT Act out of the Judiciary 
Committee unanimously. I want to tell

[[Page S13520]]

you, I have served on the Judiciary Committee for about 8 years now. It 
is rough to get a unanimous vote for a resolution praising motherhood. 
But we had a unanimous vote--Democrats and Republicans--on the new 
PATRIOT Act, brought it to the floor, and it really struck the right 
chord with all Members of the Senate to the point where we did not have 
a record vote to pass it. We passed it by unanimous consent, and that 
says we were on to something, the right balance.
  Then, of course, the legislative process takes that bill of the 
Senate and matches it with the bill in the House, and compromises are 
made. That is the reason we are here today.
  Because, sadly, some of the compromises that were made between the 
Senate bill and the ultimate bill we are being presented with were 
significant, historic, and some, I am afraid, were just plain wrong.
  In about 2 weeks, several provisions of the PATRIOT Act will expire. 
There are only a couple days left in this session of Congress. The 
Senate majority leader, Senator Frist, said this morning this is one of 
his high priorities. And it should be.
  Later this week, at the last possible moment, the Senate is going to 
consider the bill to reauthorize the expiring provisions of the PATRIOT 
Act. I wish we were not doing this at the last minute because this is 
an important debate. This debate is especially important because the 
current version of the bill does not include the safeguards which we 
need to protect the basic freedoms of Americans.
  I come to this debate with the belief we have inherent in our 
democracy, based on our Constitution, certain rights and freedoms and 
liberties. If this Government, or any government, wants to take that 
freedom away from me or from any American, they have to make a 
compelling argument. The presumption is in favor of our freedom. The 
presumption is in favor of our privacy. It is the Government's 
responsibility to show that it has to go beyond current law to take 
away our basic freedom. That is where I start. And I think many Members 
of the Senate--conservative and liberal--feel exactly the same way.
  Now, I understand there may be an attempt to shut off the debate on 
this PATRIOT Act. I think that is a mistake. I think we should give it 
the time necessary because we are talking about fundamental freedoms in 
this country. It is rare we stand on the floor and really consider a 
bill of this importance and this magnitude. But this is one of them. We 
rushed through the PATRIOT Act 4 years ago, as I said, in the light of 
what happened on 9/11, with an understanding we needed to pause and 
reflect on this in 4 years. We should not rush through this debate 
again.

  Some claim we should not be concerned with problems in this bill 
because it includes another sunset clause, which gives Congress the 
power to review three of the bill's most controversial provisions 4 
years from now. A sunset is really important. I am glad we included it 
in the original bill. But it is no justification for delaying changes 
to the PATRIOT Act that are needed to protect our fundamental 
liberties. We ought to fix the PATRIOT Act now.
  In the last 4 years, 400 communities in 45 different States have 
passed resolutions expressing concerns about the PATRIOT Act. The 
American people are sensitive to the fact that this could be an 
infringement on their basic rights. The communities that passed these 
resolutions represent about 62 million people across this country from 
every corner of the United States.
  Senator Craig and I introduced the SAFE Act to address these 
concerns. Three Republican Senators, three Democratic Senators, we came 
together across the aisle to try to find a bipartisan and sensible 
approach to dealing with this issue. The SAFE Act, as I said, would not 
eliminate the PATRIOT Act. It would only reform it.
  And the bill has an amazing array of support: the American 
Conservative Union joined with the American Civil Liberties Union. When 
was the last time those two got together? But they did for this act 
because they believe whether you are on the right or on the left that 
basic freedoms should be protected.
  The Senate bill was based on the SAFE Act that we introduced. We 
reached an agreement. We made compromises. So some of the reforms of 
the SAFE Act were included, some were not. The result was 
extraordinary. The Senate unanimously passed the bill.
  The SAFE Act, like the Senate bill, retains all of the new powers 
created by the PATRIOT Act but places some reasonable limits on them.
  Then came the conference report. The current version of the PATRIOT 
Act reauthorization legislation does not include some of the most 
important reforms of the Senate bill. In the limited time I have, let 
me speak to one or two issues.
  Section 215 has been called the library records provision of the 
PATRIOT Act. Let me tell you what it would do. The bill would allow the 
Government to use this section to obtain library, medical, tax, gun 
records, business records, and other sensitive personal information 
simply by showing that the information might be relevant to an 
authorized investigation.
  This is not in the tradition of American jurisprudence and American 
constitutional law. It has been our premise that before the Government 
can investigate any of us, any person who is following this debate, 
there must be some individualized suspicion about that person. This 
section of the PATRIOT Act says just the opposite. The Government can 
start looking at thousands of individual records held by different 
companies or libraries or hospitals and look to see if there is 
anything suspicious that they can glean from looking at those records. 
Section 215 clearly allows such a fishing expedition.
  Who has raised concerns about this provision? The U.S. Chamber of 
Commerce, the National Association of Manufacturers, groups on the 
right and on the left. They argue that the Government should be 
required to show a judge that a person whose records they want has some 
connection to a suspected terrorist or spy.
  This is basic to the law of America. In this country, you have the 
right to be left alone. It is pretty basic and important to all of us. 
If the Government wants to get into my personal life or yours, it has 
to do so with a reason, not in general terms that say: Let's look at 
all of the people who have checked books out of the New York Public 
Library in the last 30 days. Let's go to a hospital and ask for all of 
the medical records of people who have had a certain medical procedure, 
regardless of who those people happen to be. This is too broad.

  When the FBI is conducting a terrorism investigation, they should not 
be able to snoop through your sensitive personal records unless you 
have some connection to a suspected terrorist act. The original Senate 
bill would provide that protection. This bill we are going to consider 
does not. That is what is at stake.
  There are other problems with section 215. Let me mention another. An 
individual who receives a section 215 order--for example, the person 
who is running a library, the administrator of a hospital with medical 
records, the administrator of a credit agency, for example, with 
sensitive financial information--is subject to an automatic permanent 
gag order that prevents that person from speaking out, even if he 
believes that this section 215 order has gone way too far and violates 
their rights.
  The original Senate bill we supported on a bipartisan basis and 
passed unanimously would give someone who receives a section 215 order 
the right to go to court to ask that the gag order be lifted. The 
current version of the bill does not.
  It, in fact, continues to gag those individuals who could protest the 
Government reaching too far with a section 215 order. This is a serious 
threat to our freedom of speech. Courts have held that an individual 
who is subject to a Government gag order has a first amendment right to 
challenge that gag order in court. The current version of the PATRIOT 
Act does not provide that right. I am concerned that that on its face 
is unconstitutional.
  I don't have time to get into all of the details of this conference 
report. There are many provisions of the bill which trouble me. This 
morning, I am going to be sending a letter, with several of my 
colleagues, to our other colleagues in the Senate outlining those 
concerns.

[[Page S13521]]

  In this morning's Washington Post, Attorney General Gonzales says we 
have a choice: either accept this flawed conference report or it will 
expire. I respectfully disagree. We must not allow the PATRIOT Act to 
expire. There are provisions we desperately need to keep America safe. 
But we should not pass a reauthorization that fails to protect basic 
constitutional rights. Once we give these rights away in this act, can 
we ever reclaim them?
  The 9/11 Commission said it best: The choice between security and 
liberty is a false choice. Our bipartisan coalition believes this 
legislation can be changed and improved to protect civil liberties and 
give the Government the tools it needs to fight terrorism.
  We believe it is possible for Republicans and Democrats to come 
together, dedicated to protecting our basic constitutional rights. We 
believe we can be safe and free.
  The American people have already lived with the PATRIOT Act for 4 
years. They shouldn't have to wait any longer for Congress to take 
action to protect their constitutional rights.
  This morning, the Senate majority leader came to the floor to speak 
about a provision in the PATRIOT Act which I certainly support. It is 
the Combat Meth Act. My State of Illinois, many States with rural 
populations, knows that this insidious drug crime has been increasing 
with these meth labs and an addiction which has destroyed lives and 
created chaos, starting, of all places, with rural areas and small 
towns. The Combat Meth Act includes $15 million in COPS funding to 
combat the growing methamphetamine problem, and I support it. However, 
what the Senate majority leader did not mention was that the 
Republicans in this Chamber have consistently voted against COPS 
funding.
  As recently as last March, when the Senate considered the budget 
resolution--I see my friend, the chairman of the Budget Committee, and 
he may respond--Senator Biden proposed an amendment to increase COPS 
funding by $1 billion. That amendment did not receive a single vote on 
the other side of the aisle. Time and again, the President has proposed 
eliminating funding for hiring additional police officers through the 
COPS Program to help combat this methamphetamine problem. Simply 
authorizing another $15 million in COPS funding in the PATRIOT Act is 
not enough. It is time for Congress to take a stand and provide real 
money to fund the COPS Program, to help State and local law enforcement 
fight this insidious meth epidemic across America.
  I yield the floor.

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