[Congressional Record Volume 151, Number 160 (Wednesday, December 14, 2005)]
[Senate]
[Pages S13546-S13561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005--
CONFERENCE REPORT
Cloture Motion
Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now
proceed to the consideration of the conference report to accompany H.R.
3199, the PATRIOT Act, and I send a cloture motion to the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The cloture motion having been presented under rule XXII, the Chair
directs the clerk to read the motion.
The legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the Conference
Report to accompany H.R. 3199: The U.S. PATRIOT Terrorism
Prevention Reauthorization Act of 2005:
Chuck Hagel, Jon Kyl, John McCain, Richard Burr, Conrad
Burns, Pat Roberts, John Ensign, James Talent, C.S.
Bond, Johnny Isakson, Wayne Allard, Norm Coleman, Kay
Bailey Hutchison, Mel Martinez, John Thune, Jim DeMint,
Jeff Sessions, Bill Frist, Arlen Specter.
Mr. FRIST. Mr. President, we will be very brief. I know we have two
of our colleagues on the floor prepared to speak.
What we have just done is turn to the conference report on the
PATRIOT Act, a vitally important piece of legislation, that in
bipartisan way our colleagues have addressed, in a bicameral way, and
it is now our intention to address the PATRIOT Act, discuss it over the
course of, I am sure, later this evening as well as tomorrow.
Because we were unable to come to a unanimous consent agreement to
address this bill in a limited amount of time, in an appropriate amount
of time, and then to vote up or down on the bill, I filed a cloture
motion, and that cloture vote will actually be Friday morning. I will
have more to say about that.
Let me briefly turn to my distinguished colleague, who is chairman of
the Judiciary Committee, who has put together, again in a bipartisan
way with a lot of negotiation and compromise over the long period of
time, a bill that, as we all know, has passed the House of
Representatives earlier today with I believe 44 Democrats voting for
the PATRIOT Act in the House of Representatives, a bill that we now
will be addressing on the floor of the Senate.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I shall be brief. I know two Senators are
waiting to speak.
I congratulate the House of Representatives for approving the
conference report by a significant margin.
I thank the majority leader for moving ahead procedurally with filing
of the cloture motion. There have been a number of public statements
made by Senators about an intention to filibuster. We are obviously at
the conclusion of our work and we want to proceed. I am advised by the
distinguished majority leader that this conference report will be on
the floor tomorrow.
I urge my colleagues to come to the Senate to debate the issue. It is
a complicated bill. I addressed it at some length the day before
yesterday with a floor statement, moving into the critical areas.
Yesterday, Senator Feingold and I had an opportunity to discuss the
bill for almost an hour. It is valuable for our colleagues to know the
details as to what is in the bill. That can be best accomplished by an
interchange of ideas, those who have objections stating them, and
hearing the responses so that we may fulfill our responsibility as the
world's greatest deliberative body. I look forward to that exchange and
debate.
I believe it is an acceptable bill, a good bill, not a perfect bill.
I am prepared to go into detail. I have talked to many of my colleagues
one on one, individually, and I have found, understandably, because of
the complexity of the bill, that many of its provisions are not fully
understood as to what they mean and what the import is and why we have
come to this.
Ideally, I would like to have seen the Senate bill go through
unanimously, passed by the Judiciary Committee 18 to 0, and then on the
unanimous consent calendar here, which is, I think, unprecedented for a
bill of this magnitude. But we have a bicameral system, and we
conferred at length with our colleagues in the House of Representatives
and are presenting the conference bill, which I submit is a good bill
that I am prepared to advocate tomorrow.
I urge those who want to speak to come to the Senate tomorrow morning
when we take up the bill and have a constructive debate so our
colleagues may be informed about the contents and vote on the cloture
motion in a timely way and hopefully move forward to consideration on
an up-and-down vote.
I thank my colleagues from Louisiana and Iowa for yielding this time.
Mr. FRIST. Mr. President, let me very briefly close in stating my
strong support for the legislation, the substance of the legislation,
but also underscore the importance of this Senate acting on this
legislation. I encourage our colleagues who have talked about
filibuster to do exactly what our distinguished chairman has talked
about, and that is look at the substance of the bill. A lot of changes
and modifications have been a product of compromise and negotiation and
have been put into the bill. It is very strong in terms of issues such
as terrorist financing and protection of our ports and addressing
issues surrounding mass transit and privacy and personal liberties.
This bill does present us with a stark and clear choice: Should we
take a step forward, which we have an opportunity to do in the next
several days, or take a step backwards in that goal to make America
safer? It does expire on December 31. The PATRIOT Act expires on
December 31, but the terrorist threat does not.
I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana is recognized.
Ms. LANDRIEU. Mr. President, I begin as my leader is in the Senate to
say the bill they most certainly have presented for our consideration
is one that needs attention and needs deliberation. The PATRIOT Act is
a very important part of the security of our Nation. We can debate the
inside and pieces of it, but I strongly suggest to the leadership that
protecting America is more than just the chapters and statutes related
to the PATRIOT Act.
Protecting America is about protecting patriots in the gulf coast, in
Louisiana, in Mississippi--not just citizens who are patriots, taxpayer
citizens, hard-working citizens who have come to believe the notion
that in America they are safe, or should be safe, and if disaster does
strike, the government, with the private sector and with their own
effort, will be there to help.
What about the patriots on the gulf coast who are veterans
themselves, the 400,000 veterans in Louisiana, the 250,000-plus
veterans in Mississippi--just for two States that were affected--men
and women who have put on the uniform, served their time, true
patriots. What are we doing to secure their homes, their schools, their
churches?
I suggest to the leadership that while the PATRIOT Act itself has
many pieces of what helps make America secure, it is one piece but not
the only piece. We should most certainly not be comfortable leaving
here without securing the homes and businesses and dreams of average
Americans, patriots, on the gulf coast.
As I speak for just a few minutes this afternoon, it has been over
100 days
[[Page S13547]]
since two of the deadliest storms hit the coast of America: Katrina and
Rita, Katrina on the southeastern part of Louisiana, on the Mississippi
section as well, and Rita, just a little over a week later hitting the
southwest part of Louisiana and Texas counties as well.
As the days and weeks have unfolded and as there have been
investigations and hearings and committees that have looked into what
happened, I suggest it was not just a natural disaster that led us to
this point but a manmade disaster.
The Times-Picayune, the major newspaper in New Orleans, and other
papers in the region, have written extensively on this subject. I ask
unanimous consent that this article, ``Evidence Points to a Man-Made
Disaster,'' be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Times-Picayune, Dec. 8, 2005]
Evidence Points to Man-Made Disaster
(By John McQuaid, Bob Marshall and Mark Schleifstein)
As investigators and residents have picked through the
battered New Orleans levee system's breaches, churned-up soil
and bent sheet pile in the 100 days since Hurricane Katrina
struck, they have uncovered mounting evidence that human
error played a major role in the flood that devastated the
city.
Floodwall breaches linked to design flaws inundated parts
of the city that otherwise would have stayed dry, turning
neighborhoods into death traps and causing massive damage. In
other areas, poorly engineered gaps and erosion of weak
construction materials accelerated and deepened flooding
already under way, hampering rescue efforts in the wake of
the storm.
These problems turned an already deadly disaster into a
wider man-made catastrophe and have made rebuilding and
resettlement into far tougher and more expensive challenges.
That's the picture that emerges from investigations of the
levee system by teams sponsored by the state government, the
American Society of Civil Engineers and the National Science
Foundation, as well as from dozens of interviews with local
residents, officials and engineers.
Experts say the New Orleans flood of 2005 should join the
space shuttle explosions and the sinking of the Titanic on
history's list of ill-fated disasters attributable to human
mistakes.
The evidence points to critical failures in design and
construction, as well as a lack of project oversight and
responsibility that allowed small problems to metastasize
into fatal errors. Twisted lines of authority led to cursory
inspections, communications snafus and even confusion about
such basic information as wall dimensions.
Outside engineers, political leaders and many New Orleans
residents now question the judgments and even the once-
unassailable competency of the Army Corps of Engineers, which
had final authority over the system. The corps and some of
the same firms involved in the original design and
construction of the levees are spearheading the effort to
repair the system and already are planning to build stronger
protections.
Sen. David Vitter, R-La., who sits on two Senate committees
investigating the levee failures, says the U.S. system for
building flood defenses is broken. The corps, he said, should
be overseen by outsiders who can ensure it will do the job
right.
``We need a new model, a new structure, a new process to
get this done which has to include outside, independent
review of the corps by outside, independent engineering
experts,'' he said.
``The best minds''
The levee flaws also raise troubling questions about the
integrity of flood defenses elsewhere.
``Everybody who has a levee out the back door now has to
look out and wonder, is this going to fail? Was it designed
right?'' said Steve Ellis, vice president of Taxpayers for
Common Sense, a Washington fiscal watchdog group critical of
the corps' priorities.
Corps spokesman David Hewitt said the agency has several
experts and engineers from outside agencies, private firms
and academia to aid its investigation. ``We are determined to
find out exactly what happened both in the technical
engineering and the planning and execution process so that we
can prevent another occurrence,'' Hewitt said. ``We are
engaging the best minds and professional expertise in this
important effort.''
Engineers say most structures that fail do so not because
they're hit by overwhelming forces, but because of flaws that
creep in unnoticed during design, construction and upkeep. A
paper published this month by Robert Bea, an engineering
professor at the University of California at Berkeley who is
studying the levee failures, concluded that 80 percent of 600
structural engineering failures he studied in the past 17
years were caused by ``human, organizational and knowledge
uncertainties.''
Bea said everything he has seen about the New Orleans levee
system so far tells him it belongs in that category.
Not as good as advertised
The levee system's design dates to the 1950s, when
understanding of hurricane risks and flood dynamics was
primitive compared to today. The system was never built to
take a hit from the most powerful hurricanes, storms in
Categories 4 or 5 on the Saffir-Simpson scale. The levees
were designed by congressional mandate to fend off floodwater
heights--up to about 11 or 13 feet, depending on location--
that Category 1 or 2, and some Category 3 storms would kick
up.
But the investigations show that the levees did not live up
even to that billing. When Katrina's storm surge rolled in
from the Gulf of Mexico before dawn Aug. 29, the huge dome of
water followed a path up the Mississippi River and then along
the Mississippi River-Gulf Outlet into Lake Borgne.
In a matter of hours, the sheet of water--reaching 25 feet
high at some locations--moved relentlessly north and west,
pouring over the tops of and eroding large stretches of
levees surrounding Chalmette, clearly exceeding their
design capacity.
When the surge reached New Orleans' southern edge along the
Gulf Intracoastal Waterway, it caused as much as five miles
of the 17.5-foot tall levee there to disappear, creating a
back door for water into eastern New Orleans.
Water pushed west through the waterway into the Industrial
Canal, where it met water already rising from storm surge
that had entered Lake Pontchartrain. The water topped levees
on both sides of the canal, causing walls to fail on the east
side, flooding the Lower 9th Ward, and leaking through
smaller levee breaks and a pump station on the west side,
flooding the rest of the 9th Ward.
Breaches by design
Later that morning, as surge rose in Lake Pontchartrain,
floodwalls along the 17th Street and London Avenue canals
breached, even though the water was well below their tops.
Investigators say those breaches shouldn't have happened.
Observational data and computer modeling indicate that storm
surge entering the canals from the lake reached heights
ranging from 9 to 11 feet in the 17th Street Canal and 11 to
12 feet in the London Avenue Canal. The walls were 13.5 feet
high or higher along much of the two canals and were designed
to withstand water rising to 11.5 feet.
Investigators say the walls broke when floodwater, pushing
through the soft, porous earth under the steel sheet pile
foundations, started moving the soil. In the 17th Street
Canal, one breach opened on the east side, and in the London
Avenue, two breaches occurred. Water poured into the
Lakefront area and moved south, inundating much of central
New Orleans over the course of the day and night.
Engineers say some systemic design problem--not merely a
localized fluke--caused the breaches because walls gave way
in two canals and some walls appear to have been close to
breaching at other points.
While it's easy to second-guess after a disaster, outside
engineers say the depth of the sheet pile foundation appears
too shallow. A survey by Team Louisiana, the state-sponsored
forensics group, found--and the corps confirmed last week--
that the sheet pile depth was about 10 feet below sea level
in the breached areas at both canals, much shallower than the
18.5 foot below-sea-level depth of the canals and 7 feet
shorter than the corps thought.
Modjeski & Masters, the firm that designed the 17th Street
canal wall, said last week it had initially recommended a 35-
foot depth for the piling on the 17th Street Canal, then
shortened it at the corps' behest, but the firm offered no
documentation to back the claim.
Soil and safety
It's still unclear exactly what went wrong, though
engineers suggest the soil's resiliency was overestimated.
New Orleans soil is swampy and mushy, with alternating
layers of peat, clay and sand. Along the length of a
floodwall it varies wildly in consistency and strength. Along
both canals, a layer of peat--the weakest and spongiest of
soils--lies directly under breaches a few feet below the base
of the sheet pile. Along the London Avenue Canal, coarse sand
underlay the peat and now lies throughout nearby residential
yards and homes, another layer of weakness, the engineers
said.
``Those are the kinds of subsurface conditions that lend
themselves to having weak pockets or stronger pockets, and
Mother Nature will always find the weak pockets,'' said
Joseph Wartman, a Drexel University geotechnical engineer
studying the levee failures. ``What makes levee design and
engineering so challenging is you can have a system that's
many, many miles long and you only need the weakest 150
feet to rupture for the whole system to fail.''
Another factor in the breaches, one with national
implications, is the low safety factor used in constructing
the levee banks and floodwalls. A safety factor is a kind of
cushion that engineers include in a structure's design to
ensure it can withstand all the punishment it's designed to
take, plus a little more.
Corps standards for levees and floodwalls date back
decades, officials say, and were intended to protect sparsely
populated areas, not cities and billions of dollars of
infrastructure. The safety factor of 1.3 used in the designs
is significantly lower than those used in structures with
similarly large-scale tasks of protecting lives and property.
[[Page S13548]]
With data from soil borings spaced at more than 300-foot
intervals along the canals, engineers could develop only a
fragmentary picture of what is underground. They were
supposed to account for that uncertainty. That is typically
done by raising the safety factor or by making conservative
estimates of soil conditions.
Team Louisiana investigators said last week that based on
new calculations, they think engineers working for
contractors Eustis Engineering and Modjeski & Masters
miscalculated the depths of the 17th Street Canal walls. The
team has not yet released detailed findings. University of
California engineers say the designers might not have
accounted for storm surge's effects on the soil.
According to project and court documents, those designs
were reviewed and approved by corps engineers.
It's not clear yet whether additional factors such as cost-
cutting or specific on-site construction problems contributed
to the levee breaches, but the failures can also be linked to
a chain of political and managerial decisions.
The corps originally proposed building floodgates at the
mouth of each canal--and at the mouth of the Orleans Canal
that runs along the west side of City Park--to block surge.
But local officials, including those at the Orleans Levee
Board and New Orleans Sewerage & Water Board, insisted on
building floodwalls because floodgates would have made it
difficult to pump water out during a storm. Engineers say the
obvious, though expensive, solution is to build pumping
stations at the lakefront rather than miles inland.
A 1980s-era Sewerage & Water Board dredging project in the
17th Street Canal next to the breached area left the Orleans
Parish canal-side levee wall much narrower than that on the
Jefferson Parish side. Investigators say that change probably
contributed to the failure of the wall.
Pittman Construction, the contractor that built the 17th
Street Canal wall, ran into trouble driving sheet piles in
1993. When the concrete tops to the walls were poured,
documents show, the walls tipped slightly. Though the corps
attributed this to Pittman's methods, not the site
conditions, and a judge agreed, some engineers say the
difficulty they encountered was an early warning sign.
What lies beneath
Meanwhile, state and local officials have admitted they
generally skipped the canal floodwalls in annual inspections
of levees--and the levees they did inspect were examined in a
cursory fashion.
Though necessary, visual inspections are of limited use.
Absent an obvious problem like water bubbling to the surface,
most levee problems go on out of sight, meaning a system's
problems can go undetected for years without a more
aggressive inspection program that includes probing beneath
the surface with soil sampling, sonar or other methods.
``It looks perfect from the outside. It looks in good
shape. Even if you had a 10-man crew walking along there
every day, you would not have seen the problem,'' said Jurjen
Battjes, a retired professor of engineering from the
Technical University of Delft, Netherlands, who is on an
American Society of Civil Engineers panel reviewing the
corps' investigation.
To the east, assessing the levee system's performance is a
more complicated task. Water flowed over levees and
floodwalls along the Industrial Canal, Gulf Intracoastal
Waterway and Mississippi River-Gulf Outlet. In many spots,
the water scoured out earth along the dry side and the walls
gave way.
In general, engineers say that once a levee is topped, its
structural integrity cannot be guaranteed. But the speed with
which many of the walls breached or eroded and the large
scope of the damage have alarmed investigators. The outer
levee along the Mississippi River-Gulf Outlet protecting St.
Bernard Parish and the levee along the north side of the Gulf
Intracoastal Waterway protecting part of the Lower 9th Ward
were all but washed away by the storm, for example.
Engineers say that if a wall is sturdy enough to remain in
place while water flows over it, flooding will be minimized,
lasting only until the surge drops. When a breach opens,
adjacent neighborhoods basically become part of nearby
waterways and the scale of the flooding is many times
greater.
The funnel effect
One source of the scouring and multiple breaches is
actually a corps policy, dictated by Congress. Corps
officials say they are not allowed to put rip-rap, concrete
or other forms of scour protection on the dry side of levees.
Doing that anticipates flood level higher than the walls are
designed for, which is beyond the corps' mandate for Category
3 protection.
A report published last month by the American Society of
Civil Engineers and National Science Foundation teams
identified other unanticipated weaknesses in the levee
system. Builders used weak, sandy soils in the now-
obliterated St. Bernard Parish hurricane levee, and that
likely contributed to its rapid destruction. In areas where
two different levee sections came together, investigators
found many awkwardly engineered transitions that allowed
water through.
A much larger problem lies in the overall design of the
levees along the city's southeastern flank. Unlike areas
fronting Lake Pontchartrain, southeastern areas are more or
less directly exposed to waters from the Gulf, and hurricane
floods are more likely to strike there and rise higher when
they do.
The levee system forms a V-shape where the MR-GO and
Intracoastal Waterway meet. That acts as a giant funnel,
driving water heights even higher and channeling storm surge
directly into canals leading into the city.
Computer modelers have complained for years that the corps
had underestimated the risk to those areas, and former corps
modeler Lee Butler estimated the actual risk was double the
corps estimate in a 2002 study done for The Times-Picayune.
The corps only recently announced it will stop dredging the
MR-GO.
Waiting for answers
It will take months, and possibly years, to arrive at a
detailed assessment of what went wrong and assess
responsibility, engineers familiar with the situation say.
Investigators must determine not only why individual wall
sections failed, but they also must trace the roots of
decisions, untangling overlapping responsibilities of the
corps, private contractors and local agencies. A federal
interagency team investigating the system won't make its
report until June. A National Research Council team is only
now being formed.
So far, the scope of the disaster, and the human element
central to it, have only begun to sink in among political
leaders and agency heads, including the corps, which is at
the center of all the inquiries. The corps has declined to
comment on the causes of the levee failures, pending the
outcome of its own studies.
People familiar with the agency say the disaster means
things might never be the same.
``In the old days the corps used to get criticized for
being way too conservative in their designs,'' said Don
Sweeney, a corps economist for 22 years who left after
exposing irregularities in the agency's economic impact
statements and now teaches at the University of Missouri.
``They would design a structure with a safety factor of 4 or
5. They did have that reputation of building things with
integrity that were built to last. And if they said it was
built to do something, it would do it.''
Ms. LANDRIEU. I also ask unanimous consent to have printed in the
Record ``Corps' Own Study Backs Critics of Levee Engineering.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
Corps' Own Study Backs Critics of Levee Engineering
[From the Times-Pacayune, Dec. 10, 2005]
(By Mark Schleifstein)
An internal review by the Army Corps of Engineers supports
most of the criticisms leveled against the New Orleans area
levee system by an independent team of engineers, including
questions about soil strength, levee maintenance and whether
the system was built as designed.
In a Dec. 5 interim report released Friday, the Interagency
Performance Evaluation Task Force said its conclusions
already have been passed on to engineers who are working to
restore the levee system to its authorized protection level
before it was overwhelmed by Hurricane Katrina, flooding more
than 70 percent of the city.
``The IPET team vigorously agrees that everything possible
should be done to reconstitute an effective and resilient
flood protection system for the New Orleans area,'' the
report said.
While the level of protection is still limited by past
congressional authorizations to the equivalent of a fast-
moving Category 3 hurricane, the report said the task force
will evaluate the risk and reliability of that system.
``This will provide a clearer perspective of the overall
performance capacity of the system for use by individuals and
governments in their decision making,'' the report said.
The task force concurred with the independent engineers
from the American Society of Civil Engineers and the National
Science Foundation that the failure of levee walls at the
17th Street and London Avenue canals were likely caused by
failures in the foundation soils beneath them. The engineers
also have noted that sheet piling beneath the walls was too
short to properly support the walls.
The independent engineers said soft peaty soils under the
17th Street levee and a combination of soft peat and sand
beneath the London Avenue levees allowed water from the
canals to push the walls and earth beneath them out of the
breach areas, allowing water to flood into much of the city.
``Extensive observations by a number of teams found no
signs of major overtopping of these systems at the breach
sites,'' the report said, pointing to a structural failure of
the floodwalls at those sites.
Analyzing failures
The corps task force is studying a variety of other factors
that also may be involved in the failures at those two
canals:
The potential for differences between how the levee and
floodwall structures were built and the plans and
specifications that were supposed have guided their
construction.
Properties of soil layers beneath the levees to a depth of
60 feet below sea level.
The kinds of soil materials, including whether they were
natural deposits or were
[[Page S13549]]
compacted properly to remove moisture and be more dense.
Whether the soil layers included tree stumps or other
organic materials.
The way the soil may have coped with the forces imposed by
Katrina's wind and water.
The effect of trees, swimming pools and other objects in
nearby back yards that may have affected the levee strength.
How close the levee failures were to bridges, and whether
the connection between them was adequate.
Whether operations and maintenance practices by the corps
and individual levee boards differed from the corps'
Operations and Maintenance Manual.
The task force said it had found evidence that scour,
probably from water going over the top of the levee, occurred
along the London Avenue Canal at the southeast corner of its
intersection with the Robert E. Lee bridge, near a part of
the wall that looks deformed. That levee section is directly
across from a breach.
Damage near a pump station at the southern end of the
Orleans Canal also appears to indicate water topped the levee
wall there, the report said.
Along the levee walls of the Industrial Canal and along
earthen levees on the Gulf Intracoastal Waterway and
Mississippi River-Gulf Outlet, Katrina's storm surge went
over the top, causing scouring or in some cases simply
washing away large parts of the levees, the report said.
At the Industrial Canal, the water pouring over the wall
scoured the levee on what was supposed to be the protected
side of the I-shaped levee wall.
``The erosion appeared to be so severe that the sheet piles
may have lost all of their foundation support, resulting in
failure,'' the corps report said.
Protecting back of levees
The task force also agreed with the independent engineers
that those designing repairs to the levee systems should
consider ways of protecting the back sides of levees from the
effects of water scour in the event another major hurricane's
storm surge tops the levees.
Officials with the corps' Task Force Guardian, which is in
charge of the rebuilding effort, already have said they plan
to use more protective inverted-T levee walls in the 17th
Street and London Avenue canals where breaches occurred.
Water topping such a wall would splash down on a concrete
strip before running off.
The investigative task force also said the use of erosion
protection, including riprap, concrete mats or slabs, or
paving, should be considered in areas where erosion by waves
and surge are possible. The report said additional study is
under way into where structures in the levee system are most
likely to sustain unusually large surge and wave conditions.
And the report recommended using stronger clay soils in
building levees ``to improve their survivability chances.''
The investigative task force also recommended that in
rebuilding, more effort should be put into assuring that
connections between different types of protective systems--
such as walls and earthen levees--be better designed.
``A common problem observed throughout the flood protection
system was the scour and washout found at the transition
between structural features and earthen levees,'' the report
said. Similar problems occurred where ``penetrations,'' such
as streets or railroad tracks, went through levee structures,
the report said.
The task force also agreed with the independent engineers'
conclusion that a lack of access to the land side of levees
and levee walls, such as found along the canals in New
Orleans, led to major problems for emergency personnel
attempting to make repairs.
In the aftermath of Katrina, corps contractors had to build
a road behind homes along Bellaire Drive to reach the 17th
Street canal breach.
Corps officials told the Orleans Levee Board this week that
they expect to expand the canal levee walls' rights of way by
15 feet to build an access road.
Looking for weakness
The task force also recommended that corps officials
undertake an in-depth investigation of the area's levees to
determine where other weaknesses might lie.
``Detailed inspection of the entire hurricane protection
system using appropriate remote sensing, surveying,
inspection and investigation techniques and equipment
implemented and analyzed by properly trained and experienced
professionals is recommended to identify those structures
that have been weakened but have little visual evidence of
degradation,'' the report said.
The corps task force held off on agreeing with a
recommendation from the independent engineers to keep sheet
piles in place along bridges on the northern end of the 17th
Street and London Avenue canals so they could be easily
plugged in advance of a storm during the next hurricane
season.
That decision will require further study, the report said.
The report said it was outside the task force's authority
to concur with the independent engineers' recommendation that
the corps should retain an independent board of consultants
to review the adequacy of interim and permanent repairs.
The report points out that Katrina's sustained winds were
at 147 mph when it crossed the Louisiana coast early Aug. 29.
``The sustained wind speeds for the standard project
hurricanes used to design many of the flood protection
structures in and around New Orleans were in the neighborhood
of 100 miles per hour,'' the report said. ``While wind speed
alone is not a complete measure of the surge and wave
environments experienced by specific structures, it is a
clear indicator of the level of the forces to which the
system was subjected.''
According to National Weather Service records, the highest
winds recorded in the immediate New Orleans area were gusts
of 105 mph at Lakefront Airport and Belle Chasse Naval Air
Station. But much higher wind speeds were believed to have
occurred in eastern New Orleans and St. Bernard and
Plaquemines parishes, which were directly in the path of
Katrina's eye.
The report said the task force is conducting an analysis of
Katrina's surge and wave effects in Lake Borgne and the rest
of the New Orleans area so the data can be used in
determining the forces acting on levees and floodwalls
throughout the area.
Ms. LANDRIEU. The point is, this was not just a natural disaster, it
was a manmade disaster. One of our columnists captured it correctly.
You could almost argue, based on the evidence that is in, independent
evidence, that it was a Federal Government-sponsored disaster.
Let me repeat, these are strong words: A Federal Government-sponsored
disaster because it was the Corps of Engineers, the failing of a
sophisticated and supposedly a strong levee system that failed, that
put a major American city underwater 10 to 15 feet for 2 weeks and
flooded a region, with multiple levee breaks in an urban area.
It has never happened in the recent hitory of America. It has not
happened since the great floods of 1927 when the Mississippi system was
designed. It is written and documented beautifully in John Barry's
book, ``Rising Tide.''
We have a natural disaster of unprecedented proportion coupled by a
manmade disaster of neglect, poor design, faulty design, and no telling
what else will be discovered. This is the result. These are homes that
resulted. A hurricane did not do this. Katrina did not do this. Rita
did not do this. We did this. The Federal Government sponsored this
disaster by not securing and supporting the levee system, by not
engineering it properly, and this home that is in Chalmette, which is
in St. Bernard Parish which lost almost every home in the parish. This
is why I say we shouldn't go home because people in St. Bernard, in St.
Tammany, in Orleans, in Vermilion, in Cameron, in Calcasieu, in
counties along the Mississippi gulf coast from towns such as Biloxi and
Waveland, this is what their homes look like.
Let me show another picture. The sun is shining, but it is not a
happy time for the family that lived in this home. This could have been
done from a hurricane, from wind damage. There may or may not have been
flooding in this home. I am not sure if this was on the gulf coast, but
I can promise, hundreds of thousands of homes along the gulf coast
looked like this.
What our delegation has said with the rising voices of the
Mississippi delegation, as well as the Louisiana delegation, without
action, homes are going to stay looking like this for months, if not
years.
I do not know how to express any more clearly that what we have done
to date is wholly insufficient. FEMA, on its best day, being led by the
finest executive you could find in the country, is not designed to meet
the challenges of this kind of disaster. Let me repeat, on its best
day, with the finest executive we could find, it is not designed to
meet this disaster. So when people continue to say, and legislators and
Congressmen, ``Well, we have sent $62 billion to FEMA. We have done
enough,'' I, please, want to plead with my colleagues and the citizens
of our Nation, do not confuse sending money to FEMA with giving help to
homeowners, businesses, large and small, in Mississippi and Louisiana.
Please do not confuse that. They are two separate things. You can send
money to FEMA and then maybe cross your fingers to see if any of that
money gets to solve this problem.
This is a picture I have used a lot because it reminds me of my own
grandmother who had a camp a lot like this. There is virtually nothing
left of the camp we owned. But this is typical of senior citizens
throughout the gulf coast. This would be what most of our grandparents
and parents are going to do this holiday. This picture--it really is
one of the most heart wrenching,
[[Page S13550]]
moving pictures, and I have seen thousands of them.
What does this woman do? FEMA is not enough to help. That is why I
have said we are going to slow this process down. I know people are
anxious to get home for the holidays. I know this is not the only issue
before America. But it goes to the heart of what homeland security is
about--or should be about. If you cannot be secure in your own
hometown, if you cannot be secure in your own home, if you cannot be
secure when you are kneeling in your own church or when you are in your
own business, where can you be secure? I am not suggesting we are
powerful enough to stop hurricanes, but I am suggesting we should be
smart enough and powerful enough to mitigate against their damage, to
prevent manmade disasters by underinvestment in civil works systems
that are important for the growth of the country, and men and women
enough when the disaster does happen to step up and think outside the
box and do something that actually helps people. So I am not anxious to
go home because the people I represent do not have any homes to go home
to.
Now, this next picture is not as dramatic a picture, but it will tell
you the story. In the South, we have been talking about Hurricane
Andrew since it hit. I think it was in 1992. Yes, here it is, 1992.
Hurricane Andrew in the South is like a legend. People talk about
Camille, they talk about Betsy, but then everybody says: Andrew. It hit
Florida. It did not hit us, but a lot of our people went over to
Florida to help. We remembered Andrew. We saw pictures of Andrew for
months, and we did everything we could to try to help in Florida. And
it was the worst, costliest storm ever to hit.
Can I show you what Katrina is? This is not even counting Rita. For
Katrina, insured losses are twice--twice--that of Hurricane Andrew. And
this is not even showing the costs for Rita. It could be triple the
costliest storm in the history of the United States. It is not because
the hurricanes were really maybe as bad. And maybe they were equal. But
this differential is about a levee break in an urban area, putting
200,000 homes underwater and uninhabitable, and 18,000 businesses.
I believe, if I am not wrong about Hurricane Andrew, we lost 28,000
homes. That is a lot of homes. Think about a town with 30,000 people.
That is a pretty big-sized town. Think about every home in the town
being destroyed. That is a very terrible tragedy. We had 205,000 homes
totally destroyed, uninhabitable, from Katrina. These are not homes
with blue tarps on the roof until the roofer can come in, with people
in the kitchen; these are homes that you cannot stay in for more than 5
minutes or maybe an hour or two to clean up. There is no water. There
is no electricity. There is mold. There is mildew. People are gutting
their homes, basically sitting on slabs. That is 205,000 homes totally
destroyed. Mississippi had 68,000 homes totally destroyed, we had
205,000 homes totally destroyed, for a total of almost 300,000 homes--
poof--gone, destroyed. That is not damaged. That is not thousands of
homes that have a tree through the roof or the porch fell off or there
was water in the kitchen and the appliances do not work but you can
sleep in the bedroom and just kind of wait for the kitchen to get back.
These are 300,000 homes gone.
Many of them did not have insurance because they were not required to
because our laws were not written correctly to require them to. They
were sitting in high places, in places that had never flooded before.
And they looked up, and because our levee system failed, they have lost
their house, they have lost their business, they have lost their
financial future. Their children are not going to college. Their kids
are not in the school. They are not worshiping in their church. And we
are sitting around here passing 100 bills that have nothing to do with
helping them.
Yes, this chart is what I was looking for. Sometimes I cannot keep
numbers in my head and sometimes I can. There were 28,000 homes lost
from Andrew. Charley, Frances, Ivan, and Jeanne--we still talk about
those hurricanes. They were terrible hurricanes and 27,000 homes
destroyed. Look at Katrina--275,000 homes destroyed.
Now, this graph is why we are struggling to a point where I just
cannot quite describe that if we do not get some real help real soon,
this region is not going to be able to stand back up. Now, we will
eventually--I will get to that point in a minute--but it is going to be
very difficult. We lost 18,752 businesses in Louisiana alone.
Mississippi lost close to 2,000. Let me repeat: 18,000 in Louisiana,
2,000 in Mississippi.
Now, I am not saying this to minimize what happened to the gulf
coast. As I have shared with Senators with whom I serve, I grew up on
the gulf coast. I love Pass Christian probably as much as they do, but
they had 2,000 businesses destroyed. But when levees break in a major
city, this is what happens. This is virtually every small business or a
large part of the small businesses in the metropolitan area.
Now, we stand up here in this Senate all the time and say: Small
business is the backbone of our economy. Please, let's help small
business. Could somebody tell me how FEMA is actually going to stand up
these 18,752 businesses that pay taxes, that were patriots, that played
by the rules, paid their employees? These are not big corporations. We
only have one Fortune 500 company. But we have a lot of good people who
worked hard to build those businesses, and--poof--they are gone. Some
of them had insurance, but some of them did not.
So we put in a bill 7 weeks ago. Olympia Snowe and John Kerry passed
a bill almost unanimously in the Senate. It is sitting somewhere
because we just cannot get out of the box enough to help these people.
We have to go through the same old regular process that is not working.
And last time I checked, under the administration's proposal, we had
processed a grand total of six--six--six--GO Loans in Louisiana. I have
18,000 businesses gone, and we processed 6 GO Loans last week.
When I suggest we have been about as patient as we can be, that is
why we may be staying here through Christmas.
The system is not working. Business owners are losing everything they
worked for, not in one lifetime, three lifetimes--grandfather, father,
son, or grandmother, daughter, granddaughter, 60, 70 years, businesses
gone. And this Congress can't figure out how to help these businesses.
But we are building infrastructure in Iraq. We are building businesses
in Iraq, but we can't help our own American businesses.
Political allies of the White House have said that more has been
accomplished than any other American disaster including 9/11. The claim
cannot be justified. That claim is inaccurate. It is not valid. It
cannot be substantiated. It is not justified under any objective
criteria. What might be true is that we have sent more money through
FEMA to try to help, but it is anemic. It is not functioning well. And
the money is not getting to the people who need it.
That is why Senator Cochran and Senator Byrd have stepped up with a
reallocation and said: OK, we hear you Louisiana. We hear you
Mississippi. Let's not add any money, but let's take $30 billion of the
FEMA money, since it is sitting in a bank account not being used, and
move it over, give it to our Governors with community development block
grants, full accountability, full flexibility.
We will send you some money, $6,000 per child for your education,
because the schools took these children in. They knocked at the door.
The schools took our children in, 370,000. They were never asked if
they could pay. They have been educating these children for 6 months.
The Federal Government has yet to give one of these school systems in
Houston or Baton Rouge or Lafayette or Jackson, MS, one penny for
taking these kids in. I don't know, do we expect schools that are
having trouble anyway to take in children and educate them for free?
They have added teachers, classrooms, and the Federal Government sits
here giving money out right and left through every door as fast as it
can get out, and we can't give money to school systems educating kids
whose homes flooded and whose parents have no business anymore.
Senator Cochran has put that in his bill, mostly for Louisiana. We
don't think that we have to keep saying that if we don't get better
levees, not only can we not rebuild our city and region,
[[Page S13551]]
but it would be morally the worst thing that could be done not to help
people feel safe and protected as they make decisions to go back. We
have put a substantial amount of money in the budget with Senator
Cochran's proposal for category 3 real levee protection and a
downpayment on category 5 which is essential to us as we rebuild. With
the community development block grant, the Governors, along with our
parish presidents and municipal officials, can take that money and
fashion it to help match private sector donors, to help supplement
insurance payments, to help with some strategic housing initiatives and
begin getting tools and capital and money out in these communities in
the right ways to help stand them up.
We have to argue about this, not adding money to the budget,
reallocating FEMA, and yet we are still arguing with the House on the
total amount. Maybe they don't want to do 17, so we are down to this or
that.
This week we cannot leave until we pass a Cochran-Byrd reallocation
of the President's supplemental. With all due respect to the
administration, the supplemental that was sent to us was a bill of $17
billion, except for some serious levee money which I thank the
administration for. I thank the administration for putting that money--
I think it was $1.6 billion--in their original request. We appreciate
it. But the rest of the money in that bill was basically to refurbish
Federal facilities.
I want to show again the picture of the lady. This is what I want to
refurbish. I understand we have to refurbish Federal facilities. I know
that Federal bureaucracies are important. But this is where we are
trying to get the money, to citizens such as this woman who have worked
hard their whole life, raised their family, never asked anybody for too
much. Now they are sitting in a house with nothing. This is whom we are
trying to help. We are trying to get money to the private sector, to
private property owners, not to refurbish Federal Government buildings.
So Senator Cochran took that bill and said: If you want to help
refurbish Federal buildings, fine, but we need to add money to help
citizens, patriots, business owners in our States.
I sure hope we can do that because it will be a shame if we do not.
I want to add a quote from Governor Haley Barbour. There has been a
lot of discussion about Mississippi's approach and Louisiana's
approach. But pain has a way of bringing people together.
Governor Barbour said yesterday:
We are at a point where our recovery and renewal efforts
are stalled because of inaction in Washington, D.C., and the
delay has created uncertainty that is having a very negative
effect on our recovery and our rebuilding.
If this is coming from Governor Barbour, who is part of the party in
power and was head of the Republican Party for many years, who lost a
fraction of the homes that we lost, how do you think the people of
Louisiana are feeling about the stalled recovery effort and the
desperation as they see Congress winding down for the holidays? They
ask: Why aren't people in Washington understanding what we are going
through?
I want to read for the Record an appropriate and moving quote, right
on target as far as I am concerned, from Vanity Fair in November. It
says:
. . . when the damage is this catastrophic, the people so
helpless, the government so weak and clumsy, we expect it to
take place somewhere else--on the coast of Sri Lanka or
Bangladesh, for instance--somewhere distant and more poor. .
. . We do not expect to see our government so impotent and
indifferent that it is completely paralyzed . . .
I know the men and women with whom I work. I don't find them to be
incompetent or paralyzed. I believe they are sensitive and smart and
intelligent people. What is it that is keeping us in this Congress from
understanding FEMA isn't working. The Red Cross is not sufficient.
People are suffering. New tools are needed. Let's get about helping
people here at home.
There has been some unbelievable debate about whether New Orleans
should be rebuilt. Our city has been there for 300 years. Thomas
Jefferson leveraged the entire Treasury to buy the city of New Orleans
because of its strategic advantage, which was true then. It is true
now. Andrew Jackson took his troops and defeated the British to protect
it in 1815 because it is the greatest port system in America. It is
America's only energy coast. You can't have a great nation without
protecting your Southern border. You can't have great trade. What
thought of anyone would be that we can't rebuild New Orleans in the
region of south Louisiana after we have given so much to this economy?
We are not a charity case. We need help, we need respect, and we need a
partner.
We will rebuild New Orleans and south Louisiana and the gulf coast of
Mississippi. The people have spoken, and the spirit is strong. We may
not have houses to live in or businesses to go to, but the people who
have lived in this part of the world are strong people. We are Black
and White, Hispanic, different socioeconomic levels, but we have lived
there. The question is, Will we have a partner in the Federal
Government? This week we will see if we have a partner.
Let's get on to the business of getting these bills passed. We will
be slowing it down until we do.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, is there a speaker designated to go
next?
The PRESIDING OFFICER. The Senator from Iowa is previously designated
to follow the Senator from Louisiana.
Mr. FEINGOLD. In light of the fact that the Chair indicated that the
Senator from Iowa is to be next, I ask unanimous consent that I may
speak next, and that I may use as much time as I may require.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Iowa is recognized.
Childhood Obesity
Mr. HARKIN. Mr. President, over the last several years, we have
repeatedly heard alarming reports about the rising tide of overweight
and obesity in the United States, particularly among young children.
Over the past two decades, the rate of obesity has doubled in children
and tripled in adolescents. Fifteen percent of the children in this
country are now overweight. In fact, the United States has a higher
percentage of overweight teens than any other industrialized country.
This comes at a high price for our country, both in terms of the
long-term physical health of our citizens and the enormous health care
costs our Nation faces. Just last week, the Institute of Medicine of
the National Academy of Sciences released a new report: ``Food
Marketing to Children and Youth; Threat or Opportunity?''
The report focused on one big factor that contributes to the
childhood obesity epidemic: the relentless multibillion-dollar
marketing of junk food to our children. This landmark report is the
most comprehensive and systematic review to date of the impact of food
marketing on the diets of American youth. Its conclusions are
troubling, but they hardly come as a surprise to parents who know well
the effects of food marketing on their children.
In a nutshell, the Institute of Medicine concluded that there is
strong scientific evidence that food marketing influences food
preferences, the purchases and diets of children age 12 and below. Even
more important, the Institute of Medicine confirms what many had
suspected before, that ``television advertising influences children to
prefer and request high-calorie and low-nutrient food and beverages.''
Let me just read two sentences from the executive summary. I am
quoting directly from the Institute of Medicine's finding:
It can be concluded that television advertising influences
children to prefer and request high-calorie and low-nutrient
foods and beverages.
That is a key finding. Next, on the broad conclusions: Food and
beverage marketing practices geared to children and youth are out of
balance with healthful diets and contribute to an environment that puts
their health at risk.
There you have it. Now, 2 years ago, I requested this study to be
done. We put money in the appropriations bill for the CDC to do the
study. They contracted with the National Academy of Sciences and the
Institute of Medicine to do the study. This is an unbiased landmark
study. It proves conclusively that our kids are being inundated nonstop
with advertising that puts their health at risk.
[[Page S13552]]
The food industry is a $900 billion-a-year business. It spends
billions of dollars promoting food products, much of it targeted at
kids. The IOM report is important because it outlines in great detail
how over the past decade advertising directed at our children has grown
to a point where they are bombarded nonstop with ads. Indeed, food
marketing has expanded in both intensity and variety into nearly all
areas of kids' lives.
The food industry spends more than $11 billion a year targeting kids
with marketing campaigns through television, movies, magazines,
Internet, in-school marketing, kids clubs, toys, coupons, and product
placement in movies and books. Marketing to kids has become so
pervasive and sophisticated that over the past several years marketing
firms have even begun to employ child psychologists who specialize in
this field to help devise their strategies.
On the advice of these psychologists, advertisers make use of media
fantasy figures, celebrities, and cartoon characters. They use messages
crafted to imply that products will give kids power, make them popular.
The aim is simply to exploit kids' imaginations and their
vulnerabilities and to sell them products or to get them to nag their
parents to buy certain products.
What kind of foods are they marketing to our kids? We are not talking
about apples and pears and peaches and broccoli and carrots. We are
talking about high-fat, high-sugar, high-sodium foods with little or no
nutritional value.
The food industry contends it is concerned about the health and
nutrition of our children, and that it is taking active steps to change
its marketing practices to introduce new products that are healthier
for our children. But is that really the case?
In limited instances, the industry has taken some positive steps. For
example, in the past year, both Kraft Foods and Pepsico have announced
they will take steps to curb the marketing of unhealthy food products
to children, and instead focus on the promotion of healthier products.
I have commended publicly, and I do so again today on the floor of the
Senate--both Kraft and Pepsico for taking a leadership position in this
area.
But here is the problem. This Institute of Medicine report is clear
that such responsible actions are far from the industry norm. As you
can see from this chart, the number of new products that the food
industry has targeted to kids have gone up tenfold over the past 10
years, from around 50 to just under 500 in 2004--500 new products per
year--not apples, not salad bars. According to the Institute of
Medicine, these 500 products are high in calories and sugar and low in
nutrients. This is what dominated those products.
Let's take a look at some of the examples of what is happening to our
kids. Many advertisements for junk food snacks use characters popular
with children. Here is one. They range from Spiderman to Sponge Bob
Square Pants. Kids know these characters. They admire these characters.
Quite frankly, when I saw ``Shrek 1'' and ``Shrek 2,'' I kind of liked
Shrek. He became a loveable, nice guy who wanted to do good. Now what
do we see? Here is Shrek advertising Twinkies, green Twinkies with a
green filling.
Now Shrek has a powerful appeal to kids' minds. Kids see the movie
Shrek and they like Shrek. And Shrek, why, he likes Twinkies, so
Twinkies must be OK to eat. That is what that message says.
What do we know about Twinkies? The nutritional value is zero,
harmful to kids' health.
Shrek now becomes a bad guy trying to get our kids to eat unhealthy
food. Shame on the advertisers who take a likable, loveable character
when he was first introduced to kids in the movies and now using Shrek
to poison our kids. I use the word ``poison'' because that is what this
food does, it poisons our kids by making them obese and unhealthy.
Then what you can do when you see this ad, you can visit
twinkies.com. I will show that a little bit later in my presentation.
It is not just limited to television. Food marketing has gone on in
numerous ways that we are just beginning to explore. The Institute of
Medicine report was shocking. One thing--I didn't know this--only 20
percent of all food and beverage marketing in 2004 was devoted to the
traditional methods of television, radio, and print. Only 20 percent.
Eighty percent is going to new forms of marketing--product promotions,
character licensing, school marketing.
At one time, our schools were considered safe havens for our kids,
places of learning that insulated our kids from crass commercial
influences. No longer is that the case. Our schools have been inundated
with commercial messages that are now a major advertising medium that
these food companies are using to establish brand loyalty and to get
kids to eat junk food.
Here is a photograph of a hallway in a high school. You have the Coke
machine, you have a POWERade machine. You have a vending machine with
potato chips, Fritos, cookies, candy bars, M&M's. Nothing in this
entire display is of any nutritional value. That is what is happening
in schools.
Let's not forget that a lot of these food marketing companies have
exclusive contracts with schools and school districts to link the sale
of soda pop to cash payments or equipment assistance to schools. These
are the very foods that are making our kids obese, contributing to
their unhealthy lifestyles.
I often ask parents, What would you think of a parent who sat down
with his or her child before they went to school in the morning and
measured out 15 teaspoons of sugar, put it in a little plastic bag and
told the kid: Here, you can take this to school and eat it. Or, on
second thought, measure out 30 teaspoons of sugar, give it to the kid
and say: Here, take this to school and eat it. You would think no
parent would ever do that. But some children to buy two soda pops every
day and two of those 20-ounce soda pops will have 15 teaspoons of sugar
each. One 20-ounce soda pop equals 15 teaspoons of sugar. That is why
others call this liquid candy. A 20-ounce Coke, liquid candy, that is
all it is, 15 teaspoons of sugar.
Why do we allow this? Why do we allow this in our schools? It is
sending a message to our kids that this is OK? It is in school, it is
promoted by the schools, so it must be OK. That is a new marketing
technique they have.
Now we have other techniques such as branded toys and new marketing
techniques aimed at babies? Hang on, wait until you see this one: A
baby with a 7-Up bottle. Here is a baby being nursed on a bottle that
has a 7-Up logo on it. One might say, well, that baby can't buy 7-Up.
No, but that baby's eyes are picking up things. When that baby gets
older, that is going to be stuck in that baby's mind somewhere in the
deep recesses, that was good because what that baby got out of that
bottle was good healthy milk, formula probably. And now they are going
to associate that with 7-Up. Imagine that, that early in life.
You think that is bad, hang on, you haven't seen anything yet. Look,
before I put this picture up here, let's agree on one thing. We all
agree--I know the occupant of the Chair and I bet he agrees with this,
being a doctor--that the most beneficial, nutritious food for a newborn
baby is a mother's milk, breastfeeding. We all know that breastfeeding
is the best, and any doctor will tell you if you are capable, you ought
to breastfeed your child.
Now look what we have here: A billboard with a baby breastfeeding on
a McDonald's Burger. That just about borders on the obscene. It can't
get any worse. I understand this did not run in the United States, but
it ran on billboards in Europe. Here is a baby, obviously less than a
year old supposedly breastfeeding on a McDonald's hamburger bun. Not
only does this ad imply that fast food is a developmentally appropriate
product for infants, it suggests that fast food is an appropriate
replacement for the nutrition of breastfeeding, which is the perfect
form of nutrition for babies.
Equating a McDonald's hamburger with breastfeeding, while it might be
intended to be humorous, is no laughing matter. It sends very subtle
messages that breastfeeding is nutritious and so are McDonald's
hamburgers.
Now we have other ways of marketing. I tell you, these are
psychologists who devise these ads. They know what they are doing. How
about the candy counting books? Here we have ``Reese's Pieces Count by
5,'' ``Hershey's Subtraction'' book, the
[[Page S13553]]
``Skittles Riddles Math'' book, the ``Twizzlers Percentage'' book, the
``Hershey's Fraction'' book, and the ``Hershey's Kisses Addition''
book.
Here is where I am going to pay tribute again to Kraft Foods. On this
floor periodically in the past I have shown the Oreo counting book.
Kraft Foods discontinued that practice. Kraft Foods does not allow that
any longer. God bless them; good for Kraft Foods.
But here is the problem: You get one company who actually acts
responsibly, and look what the rest of them do. They move into the
marketplace and take market share away with their counting books.
Again, 2-year-olds, 3-year-olds learn with counting books--Hershey's,
M&M's, and Reese's Pieces. I don't have it here, but I saw one counting
book where you lay it out and you actually put the M&M pieces on there,
and when you count one, you get to eat that one piece, and when you
count two, you get to take the two pieces of M&M's off and eat those
two, until you get to 10 M&M pieces. Junk food, building brand loyalty
early.
Then we have toys. How about the toys? It is an emerging trend that
puts the food on the toy so you don't just get it for 30 seconds, you
get it all the time you play with your toys.
Here we have a Coca Cola princess, whatever, a cheerleader. We have a
Jell-O Barbie. We have a McDonald's Barbie.
So little kids play with these and they build that brand loyalty.
They play with a Barbie wearing a McDonald's logo or a Jell-O or a
Little Debbie brand. That is what we have come to, where kids are
inundated day after day not with just 30-second ads but with everything
they play with, everything they see. Now they go to school, and they
see the same thing in school. This is a recent innovation. It was not
like this 20 years ago.
Now we have the Internet, which is becoming a growing segment of the
food marketing industry. Remember, I said earlier that Shrek urges
children to visit twinkies.com, well, here you go. If one goes to
twinkies.com, they go to Planet Twinkie. At Planet Twinkie, there are
all of these little interactive things, visit the Twinkie shop, the
Hostess Hall of Fame, the chocolate and cupcakes and snowballs. That is
Planet Twinkie.
So a kid sees Shrek, Shrek says: Visit my Web site, visit
twinkie.com.
Well, again, what are they saying to kids? They are saying: Eat junk
food. It is fun and it is an adventure just to eat junk food and eat
Twinkies and to eat candy and stuff, and it is good for you. And guess
what, it will make you smart because we do it in school; you go there
to school to learn, so since we do it all in school it makes you smart,
too.
So when one looks at all of these marketing techniques together,
television, schools, product tie-ins, promotions, the Internet, branded
baby products, what we are seeing is that the food marketers seek to do
nothing less than envelop our children every day during all of their
waking hours in a commercial environment that encourages them to eat
unhealthy food.
For years the food marketers have been saying: One cannot really
prove that food marketing influences children's diets. Not anymore.
With this study, food marketers can no longer say that food marketing
does not influence children's diets. The evidence is quite clear that
marketing has a negative influence on children's food preferences and
on their diets.
Some might say: Well, that is obvious. The food industry does not
spend $11 billion a year on marketing to kids because it does not work,
because they want to throw that money away. They spend it because it
works brilliantly, inducing children to purchase it themselves or to
beg, whine, and cajole their parents into buying it for them.
Some might say: What about the parents' responsibility? Parents
should be responsible, but parents' control is being eroded. Food
marketers are inserting themselves between parents and their kids.
Their control is being eroded in the face of a highly sophisticated
billion-dollar industry. This is not a level playing field.
Again, what can we do? Someone who has been listening to me might
say: Well, OK, Harkin, what can you do? That is the way business works.
What can we do about it?
There is plenty we can do about it. The IOM report makes
recommendations on what we ought to do. First, they say the industry
needs to exhibit a greater level of corporate responsibility. Amen.
Some of them have. But here is the problem: If it is not industrywide,
one food company may do something good such as Kraft did, got rid of
the Oreo cookie counting book. So what happens, their competitor moves
in with other counting books. So it has to be industrywide.
IOM calls for sweeping change in the way the food industry, the
beverage industry, the fast food restaurant industry, the media, and
the entertainment industries do business. They call on all of those
industries to use the same creativity, resources and marketing
practices that they currently use to sell junk food to instead promote
healthier diets for kids. They call on the food companies to change the
products they advertise as well as the products they produce. They say
that business as usual has to change and has to change now.
I hope corporate America is listening because if they do not change,
then we in Congress will make them change. Almost 25 years ago, the
Federal Trade Commission warned Congress about the dangers of
advertising aimed at children. What did Congress do? We attacked the
FTC and took away its regulatory authority as it pertains to children's
ads.
In 1978, the FTC undertook an investigation and found that TV
advertising directed at young children was both unfair and deceptive.
They found that the advertising of high sugar foods to children is
unfair and deceptive. They suggested that restrictions on ads directed
at the young and vulnerable minds might be appropriate. But the
broadcast industry went nuts. The food industries went nuts. The
advertisers went nuts, and they got Congress to kill the messenger.
In 1981, this Congress stripped the Federal Trade Commission of its
regulatory authority as it pertained to children's advertising. It
expressly prohibited the Federal Trade Commission from following
through on its proposals to ban or restrict advertising directed at
children. This new law made it next to impossible to regulate
advertising directed at kids. It is a little known fact that right now
the FTC has more authority to regulate advertising at me and you and
adults than it does to our kids, and here is how it does that.
There are two ways the Federal Trade Commission can regulate
advertising: If it is unfair or deceptive.
In 1981, this Congress cut off one arm of the FTC in regulating
advertising to kids. The FTC can only regulate advertising to kids if
it is deceptive, not if it is unfair. Interesting point. One might say:
Well, an advertisement of junk food is not deceptive, but is it unfair?
It is, according to the Institute of Medicine because the Institute of
Medicine said that kids lack the cognitive ability to discern between
advertising, persuasive intent advertising and a program.
It stands to reason, if one is a young kid, they do not understand
what advertising is all about. They get inundated with all of this, and
it makes an impression on them, sticks with them, but they do not
understand this is advertising. That is what the Institute of Medicine
says. This is a medical report.
So I submit that any advertising that advertises high-calorie, high-
in-fat junk food to kids that has no nutritional value, that is
inherently unfair because kids do not understand the intent. Forget
about deceptive. It is unfair. It may not be unfair to adults, since we
understand what advertising is about--we should have that ability--but
it is to kids. That is why we need to give the Federal Trade Commission
the authority to regulate advertising to children both on unfairness
and deceptiveness, as it does to adults. I want to point out, in
closing, that I have introduced legislation to give FTC that authority.
In addition, the IOM talks about Government responsibility. It says
that:
Government at all levels should marshal the full range of
public policy approaches (e.g., subsidies, legislation,
regulation, federal nutrition programs), to foster the
development and promotion of healthful diets for children and
youth.
It says, ``Government and industry should work together to set higher
standards for marketing to children.''
[[Page S13554]]
They called for changes in the school environment, to get rid of the
junk food and the vending machines.
When we come back next session, Senator Specter and I will introduce
the Child Nutrition Promotion and School Lunch Protection Act. This
legislation will, per the recommendation of the IOM, require the
Department of Agriculture to update its nutritional guidelines for
school food sales and ensure that the foods available to kids during
the school day promote, rather than undermine, their health and
learning.
We in this Congress have a responsibility to protect America's
children from the sophisticated, aggressive, relentless marketing of
junk food to our children. We have a responsibility to stick up for our
parents. Our parents don't have a chance when our kids are inundated,
day after day, hour after hour, even in places where parents don't have
control--in our schools, when they watch a movie, when they pick up a
book, a counting book.
I was in a school not too long ago, looking at some renovations in a
school, an elementary school. Do you know what the kids had to sit on?
Coca-Cola chairs; little chairs with the Coca-Cola legend, red and
white, with Coca-Cola written on it. I assume that they donated the
chairs to the school. But this is the idea, to get it into the kid's
head early, that education and having a high sugar soft drink go hand
in hand.
Late in her life, Jackie Kennedy said a very wise thing. She said,
``If you botch raising your children, nothing else you do in your life
matters very much.''
With what we now know, thanks to the IOM report, what we know about
the destructive impacts of junk food marketing to the kids, with the
new insights thanks to the Institute of Medicine, it is clear by
allowing the food industry to market junk foods to our kids we are
botching the raising of all of our children.
Again, this is enough. This report makes it clear that it is time to
say to those who are enveloping our kids in this sort of 24-hour-a-day,
7-day-a-week nonstop advertising, that it is enough. Foods that are
high in fat, sugar, and salt have their place. We all like to have a
cookie. I enjoy a piece of candy as much as anybody else. They have
their place. But they ought to be kept in their place--not in schools,
not in advertising. They ought to be kept in their place and the place
to start is with sensible, long overdue regulation of the advertising
and marketing of junk food to children.
I yield the floor.
The PRESIDING OFFICER (Mr. DeMINT). The Senator from Wisconsin is
recognized.
Mr. FEINGOLD. On behalf of Senator Dodd, I wish to inform our
colleagues that for health reasons Senator Dodd will necessarily be
absent from Senate business for the remainder of the week. He thanks
his colleagues for their courtesy and understanding.
Mr. President, I commend my colleagues who came to the floor
yesterday to discuss the PATRIOT reauthorization, and I thank Chairman
Specter for initiating a very interesting debate with me when we were
both on the floor. That is exactly the kind of dialog we want to see on
the floor more often. I hope we will see a lot more of it over the next
few days. The PATRIOT Act reauthorization conference report has come to
the Senate and the Senate will be faced with a very important choice. I
expect this debate will be lengthy and hard fought, so I wanted to take
some time tonight to lay out the background and the context for this
debate, and to discuss my concerns about the conference report with
some specificity.
Because I was the only Senator to vote against the PATRIOT Act in
2001, I want to be very clear about something from the start. I am
not--not--opposed to reauthorization of the PATRIOT Act. I supported
the bipartisan compromise reauthorization bill that the Senate passed
earlier this year, that had no Senator at all objecting. I believe the
bill should become law. The Senate reauthorization bill is not a
perfect bill, but it is a good bill. If that were the bill we were
considering today, I would be on the floor speaking in support of it.
In fact, we could have reauthorized the PATRIOT Act several months ago
if the House had taken up the bill the Senate approved without any
objections.
I also want to respond to those who argue that people who are
demanding a better conference report want to let the PATRIOT Act
expire. That is actually nonsense. Not a single Member of this body is
calling for any provision of the PATRIOT Act to completely expire. As
Senator Sununu eloquently argued yesterday, just because we are coming
up against the end of the year does not mean we should have to
compromise the rights of law-abiding Americans. There are any number of
ways we can get this done and get it done right before the end of the
year.
Let me also be clear about how we ended up voting on a badly flawed
conference report just days before certain provisions of the PATRIOT
Act expired. The only reason we are debating this conference report in
the middle of December, rather than in the middle of September or
October, is because the House--the House--refused to appoint its
conferees for 3\1/2\ months. It passed its reauthorization bill on July
21, but it did not appoint the conferees until November 9. In the
Senate, on the other hand, we passed a bill by unanimous consent on
July 29 and we appointed our conferees the very same day. We were ready
and willing to start the process of resolving our differences with the
House right away, leaving plenty of time to get this done without the
pressure of the end-of-the-year deadline.
So when I hear Members of the House already attempting to place blame
on those of us in the Senate who object to this conference report, I am
a little bit frustrated. If there is anyone to blame, it is the House
leadership for playing a game of brinkmanship with this crucial and
controversial issue. Senators who are standing strong for the rights
and freedoms of the American people will not be at fault if parts of
the PATRIOT Act expire.
I also want to clear up one related misconception. I have never
advocated repeal of any portion of the PATRIOT Act. In fact, as I have
said repeatedly over the past 4 years, I supported most of the
provisions of the bill. There are many good provisions in the bill. As
my colleagues know, the PATRIOT Act did a lot more than expand our
surveillance laws. Among other things, it set up a national network to
prevent and detect electronic crimes such as the sabotage of the
Nation's financial sector, it established a counterterrorism fund to
help Justice Department offices disabled in terrorist attacks to keep
operating, and it changed the money laundering laws to make them more
useful in disrupting the financing of terrorist organizations. One
section of the PATRIOT Act even condemned discrimination against Arab
and Muslim Americans.
Even some of the act's surveillance sections were not troubling. In
fact, one provision authorized the FBI to expedite the hiring of
translators. Another added terrorism and computer crimes to the list of
crimes for which criminal wiretap orders could be sought. And some
provisions helped to bring down what has been termed ``the wall,'' the
wall that had been built between intelligence and law enforcement
agencies.
This week we have heard a lot of people saying we must reauthorize
the PATRIOT Act in order to ensure that this wall does not go back up.
Let us make this clear. I supported and continue to support the
information-sharing provisions of the PATRIOT Act. One of the key
lessons we learned in the wake of September 11 was that our
intelligence and law enforcement agencies were not sharing information
with each other, even where the statutes permitted it. In the PATRIOT
Act we tore down the remaining legal barriers.
Unfortunately, the law was not so much a legal problem as a problem
of culture and the report of the 9/11 Commission made that very clear.
I am sorry to report that we have not made as much progress as we
should have in bringing down those very significant cultural barriers
to information sharing among our agencies.
The 9/11 Commission report card that was issued last week gave the
Government a ``D'' for information sharing because their agencies'
cultures have not changed enough these 4 years after the change in the
law in the PATRIOT Act.
There is a statement issued by Chairman Kean and Vice Chairman
Hamilton that explained:
[[Page S13555]]
You can change the law, you can change the technology, but
you still need to change the culture. You still need to
motivate institutions and individuals to share information.
So far, unfortunately, our Government has not met the challenge.
Talking about the importance of information sharing, as
administration officials and other supporters of the conference report
have done repeatedly, is part of a pattern that started several years
ago. Rather than engage in a true debate on the controversial parts of
the PATRIOT Act, as Senator Specter did yesterday, unfortunately many
proponents of the PATRIOT Act point to noncontroversial provisions of
the PATRIOT Act and they talk about how important they are. They say
this bill must be passed because it reauthorizes those noncontroversial
provisions.
That doesn't advance the debate. It just muddies it further. In fact,
it is a red herring.
I have news for those who would try to use that tactic. It won't
work. We don't have to accept bad provisions to make sure that good
provisions become law. I hope the Senate will make that lesson very
clear this week.
Tonight, I want to advance the debate, spend some time explaining my
specific concerns about the conference report in some key areas. It is
very unfortunate that the whole Congress could not come together, as
the Senate did around the bipartisan compromise reauthorization bill.
Back in July, the Senate Judiciary Committee, on which I serve, voted
unanimously in favor of a reauthorization bill that made meaningful
changes to the most controversial provisions of the PATRIOT Act to
protect the rights and freedoms of innocent Americans. Shortly
thereafter that bill passed the full Senate by unanimous consent. It
was not easy for me to support that Senate bill which fell short of the
improvements contained in the bipartisan SAFE Act.
At the end of the day, the Senate bill contained meaningful changes
to some of the most problematic provisions of the PATRIOT Act,
provisions that I have been trying to fix since October of 2001. So I
decided to support it. I made it very clear at the time, however, that
I viewed that bill as the end point of negotiations, not the beginning.
In fact, I specifically warned my colleagues that the conference
process must not be allowed to dilute the safeguards in this bill. I
meant it. But it appears that people either weren't listening or
weren't taking me seriously.
This conference report, unfortunately, does not contain many
important reforms of the PATRIOT Act that we passed in the Senate. So I
cannot support it. In fact, I will fight it with every ounce of
strength I have. And I am delighted to be part of a strong bipartisan
consensus that believes, as I do, that this conference report is
unacceptable.
Let me start with section 215, the so-called ``library'' provision,
which has received so much public attention.
I remember when the former Attorney General of the United States
called the librarians who were expressing disagreement with this
provision ``hysterical.''
What a revelation it was when the chairman of the Judiciary
Committee, the Senator from Pennsylvania, opened his questioning of the
current Attorney General during his confirmation hearing by expressing
his concern--the chairman's concern--about this provision of the
PATRIOT Act. He got the Attorney General to concede that, yes, in fact,
this provision probably went a bit too far and could be improved and
clarified. That was an extraordinary moment. It was a moment, I am
afraid, that was very slow in coming and long overdue.
I give credit to the Senator from Pennsylvania because it allowed us
to start having, for the first time, a real debate on the PATRIOT Act.
But credit also has to go to the American people who stood up despite
the dismissive and derisive comments of Government officials and said
with loud voices: The PATRIOT Act needs to be changed. And these voices
came from the left and the right, from big cities and small towns all
across the country. So far, over 400 State and local governmental
bodies have passed resolutions calling for revisions to the PATRIOT
Act. I plan to read some of those revisions on the floor of the Senate
in this debate, and there are a lot of them. Nearly everyone mentions
section 215.
Section 215 is at the center of this debate over the PATRIOT Act.
It is also one of the provisions that I tried unsuccessfully to amend
on the floor in October 2001.
So it makes sense to start my discussion of the specific problems I
had with the conference report with the infamous library provision.
Section 215 of the PATRIOT Act allowed the Government to obtain
secret court orders in domestic intelligence investigations, to get all
kinds of business records about people, including not just library
records but also medical records and various other types of business
records. The PATRIOT Act allowed the Government to obtain these records
as long as they were ``sought for''--that is all, ``sought for''--in a
terrorism investigation. That is a very low standard. It doesn't
require that the records concern someone who is suspected of being a
terrorist or a spy, or even suspected of being connected to a terrorist
or a spy. It didn't require any demonstration of how the records would
be useful in the investigation.
Under section 215, the Government simply said--this is fact--all the
Government has to do is say the magic words, that it wanted records for
a terrorism investigation, then the secret FISA court was required--
required--to issue the order, period. No discretion. The judge had to
give the order.
To make matters worse, recipients of these orders are subjected to an
automatic gag order. They cannot tell anyone that they have been asked
for the records.
Some in the administration and even in this body took the position
that people shouldn't be able to criticize these provisions until they
can come up with a specific example of abuse.
The Attorney General makes that same argument today in an op-ed in
the Washington Post when he simply dismisses concern about the PATRIOT
Act by saying: ``There have been no verified civil liberties abuses in
the 40 years of the Act's existence.''
That has always struck me as a strange argument since 215 orders are
issued by a secret court, a secret court. And people who receive them
are prohibited by law from discussing them.
In other words, the way the law is actually designed, it is almost
impossible to know if any abuses have occurred. How would we find out?
It is a secret court and nobody can talk about it.
The Government should not have the kind of broad, intrusive powers it
gave itself in section 215. And the American people shouldn't have to
live with a poorly drafted provision that clearly allows for records of
innocent Americans to be searched and just hope that the Government
uses it with restraint.
A government of laws doesn't require its citizens to rely on the
goodwill and the good faith of those who have those powers, especially
when adequate safeguards can be written into the laws without
compromising their usefulness as a law enforcement tool.
After lengthy and difficult negotiations, the Judiciary Committee
came up with language this year that achieved that goal. It would
require the Government to convince a judge that a person has some
connection--some connection--to terrorism or espionage before obtaining
their sensitive records. When I say some connection, that is what I
mean.
The Senate bill standard is the following: One, that the records
pertain to a terrorist or a spy; two, the records pertain to an
individual in contact with or known to a suspected terrorist or spy;
or, three, that the records are relevant to the activities of a
suspected terrorist or spy.
That is a three-pronged test in the Senate bill. I think it is quite
broad. I think it is more than adequate to give law enforcement the
power it needs to conduct investigations but also at the same time
protecting the rights of innocent Americans.
It would not limit the types of records that the Government could
obtain, and it does not go as far to protect law-abiding Americans as I
might prefer, but it would make sure the Government cannot go on a
fishing expedition into the records of innocent people.
The Senate bill would also give recipients of a 215 order an
explicit, meaningful right to challenge business record orders and the
accompanying gag orders in court. These provisions
[[Page S13556]]
passed the Senate Judiciary Committee unanimously after tough
negotiations late into the night. Unfortunately, the conference report
just did away with their delicate compromise.
First and most importantly, it does not contain the critical
modification to the standard for section 215 orders.
The Senate bill permits the Government to obtain business records
only if it can satisfy one or more prongs of the three-pronged test
that I just described.
This is a broad standard with a lot of flexibility. But it retains
the core protection that the Government cannot go after someone who has
no connection whatsoever to a terrorist or a spy or their activities.
What does the conference report do? The conference replaces the
three-pronged test with a simple relevant standard. It then provides
the presumption of relevance if the Government meets one of the three
prongs I just described.
But it is silly to argue that this is adequate protection against a
fishing expedition. The only actual requirement in the conference
report is that the Government show that the records are relevant to an
authorized intelligence investigation. Of course, ``relevance'' is a
very broad standard that can arguably justify the collection of all
kinds of information about law-abiding Americans.
The three prongs now are just examples of how the Government can
satisfy the relevance standard, and that is simply a loophole, or an
exception that swallows the rule. The exception is the rule.
In fact, a better way to say it is that this is actually a complete
rule, and the exception has been rendered meaningless.
I will try to make this as straightforward as I can. The Senate bill
requires the Government to satisfy one of three tests. Each test
requires some connection between the records and a suspected terrorist
or spy. The conference report says that the Government only is required
to satisfy a new fourth test, which is just relevance, which does not
require a connection between the records and a suspect. So basically
the other three tests no longer provide any protection at all.
The conference report also does not authorize judicial review of the
gag order that comes with a 215 order. While some have argued that the
review by the FISA court of a Government application for a section 215
order is equivalent to judicial review of the accompanying gag order,
that is simply inaccurate. The statute does not give the FISA court any
latitude to make an individualized decision about whether to impose a
gag order when it issues a section 215 order. It is required by statute
to include a gag order in every section 215 order. That means that the
gag order is automatic and permanent in every case. This is a serious
deficiency, one that very likely violates the first amendment.
In litigation challenges, a semi-permanent national security letter
statute, two courts have found first amendment violations because there
is no individualized evaluation of the need for secrecy. I have these
decisions right here; perhaps I will have a chance to read them in
detail during the debate.
I will discuss other provisions in the conference report that fail to
adequately address the concerns expressed in this Senate and around the
country about the PATRIOT Act. Section 215 is a linchpin of this
debate. To keep faith with the American people and with our
constitutional heritage, we have to address the problems with section
215 in this reauthorization bill. There is no way around that.
Let me turn next to a very closely related provision that has finally
been getting the attention it deserves--the national security letter,
or NSL, an authority that was expanded by sections 358 and 505 of the
PATRIOT Act. This NSL issue has flown under the radar for years even
though many of us have been trying to bring more public attention to
it. I am gratified that we are finally talking about these NSLs, in
large part due to a lengthy Washington Post story published last month
explaining just what these authorities are and reporting that the use
of these powers has increased dramatically.
What are NSLs? Why are they such a concern? Let me spend a little
time on this because it is important. National security letters are
issued by the FBI to businesses to obtain certain types of records.
They are similar to section 215 orders but with one very critical
difference: The Government does not need to get any court approval
whatever to issue that. It does not have to go to the FISA court and
make even the most minimal showing. It simply issues the order signed
by the special agent in charge of a field office or some other
supervisory official. NSLs can only be used to obtain such categories
of business records, while section 215 can be used to obtain ``any
tangible thing.''
Even the categories reachable by NSLs are broad. Specifically, they
can be used to obtain three types of business records: subscriber and
transactional information related to Internet and phone usage, credit
reports, and financial records. That category has been expanded to
include records from all kinds of everyday businesses such as jewelers,
car dealers, travel agents, and even casinos.
Just as with section 215, the PATRIOT Act expanded the NSL's
authorities to allow the Government to obtain records of people not
suspected of being or even connected to terrorists or spies. The
Government need only certify that the documents are either sought for
or relevant to an authorized intelligence investigation--a far-reaching
standard that could be used to obtain all kinds of records about
innocent Americans. Just as with section 215, the recipient is subject
to an automatic permanent gag rule, and the conference report does very
little to fix the problems of the national security letter authorities.
In fact, I disagree with the Senator from Pennsylvania, the chairman
of this committee, on this point. In fact, I believe it could be argued
that the conference report makes the law worse. Let me explain why.
First, the conference report does nothing to fix the standard for
issuing a national security letter. It leaves in place the
breathtakingly broad relevant standard.
Some have analogized NSLs to grand jury subpoenas issued by grand
juries in criminal investigations to obtain records relevant to the
crime they are investigating. So the argument goes, What is the big
deal if NSLs are also issued under a relevant standard for intelligence
investigations? Two critical differences make that analogy break down
very quickly.
First of all, the key question is, Relevant to what? In criminal
cases, grand juries are investigating specific crimes, the scope of
which is explicitly defined in the Criminal Code. Although the grand
jury is quite powerful, the scope of its investigation is limited by
the particular crime it is investigating. In sharp contrast,
intelligence investigations are by definition extremely broad. When you
are gathering information in an intelligence investigation, anything
could potentially be relevant.
Suppose the Government believes a suspected terrorist visited Los
Angeles in the last year or so. It might want to obtain and keep the
records of everyone who has stayed in every hotel in Los Angeles or who
booked a trip to Los Angeles through a travel agent over the past
couple years, and it could argue strongly that information is relevant
to a terrorism investigation because it would be useful to run all
those names through the terrorist watch list.
I don't have any reason to believe that such broad use of NSLs has
happened. But the point is, when you are talking about an intelligence
investigation, relevance is a very different concept than in criminal
investigations. It is certainly conceivable that NSLs could be used for
that kind of a broad dragnet in an intelligence investigation. Nothing
in the current law prevents it. The nature of criminal investigations
and intelligence investigations is different. Let's not forgot that.
Second, the recipients of grand jury subpoenas are not subject to the
automatic secrecy that NSL recipients are. We should not underestimate
the power of allowing public disclosure when the Government
overreaches. In 2004, Federal officials withdrew a grand jury subpoena
issued to Drake University for a list of participants in an antiwar
protest. Why? Because there were public revelations about the demand.
That could not have happened if the request had been made under section
215 or for records available via the national security letter
authority.
[[Page S13557]]
Fortunately, there are many other reasons the conference report does
so little good on NSLs. Let's talk about judicial review. The
conference report creates the illusion of judicial review for NSLs,
both for the letters themselves and for the accompanying gag rule, and
if you look at the details, it is drafted in a way that makes the
review virtually meaningless.
With regard to the NSLs themselves, the conference report permits
recipients to consult their lawyer and seek judicial review, but it
allows the Government to keep all of its submissions secret and not
share them with the challenger regardless of whether there are national
security interests at stake. So you can challenge the order, but you
have no way of knowing what the Government is telling the court in
response to your challenge. Parties could argue about something as
garden-variety as attorney-client privilege with no national security
issues, and the Government would have the ability to keep this secret.
This is a serious departure from our usual adversarial process. I
believe it is very disturbing.
The other significant problem with the judicial review provisions is
the standard for getting the gag rule overturned. In order to prevail,
the recipient has to prove that any certification by the Government
that disclosure would harm national security or impair diplomatic
relations was made in bad faith. Now, that is a standard of review that
is virtually impossible to meet. So what we have here is the illusion--
the illusion--of judicial review. When you look behind the words in the
statute, you realize it is a mirage.
I also want to take a moment to address again an argument made
yesterday by the Senator from Pennsylvania about the NSL provisions of
the conference report. He argued that many of the complaints I have
about the NSL provisions of the conference report apply equally to the
NSL provisions of the Senate bill. And then he says because I supported
the Senate bill, by some convoluted theory, my complaints are,
therefore, invalid and I should support the conference report.
As I said yesterday, that does not make any sense.
The NSL section of the Senate bill was one of the worst sections of
the bill. I did not like it then, and I do not like it now. But in the
context of the larger package of reforms that was in the Senate bill,
including the important changes to section 215 that I talked about
earlier, and the new time limit on sneak-and-peek search warrants,
which I will talk about in a moment, I was able to accept that the NSL
section was there even though I would have preferred additional
reforms.
The argument was made yesterday that after supporting a compromise
package for its good parts, now I am supposed to accept a conference
report that has the bad parts of the package even though the good parts
have been taken out. Now, that is nonsense. Every Member of this
Chamber who has ever agreed to a compromise--and I must assume that
includes every one of us--knows it.
The other point I want to emphasize is that the Senate bill was
passed before the Post reported that there has been extensive use of
NSLs and the difficulties that the gag rule poses for businesses that
feel they are being unfairly burdened by them, as reported by the
Washington Post. At the very least, I would think that an NSL sunset is
justified. But the conferees refused to make that change. Nor would
they budge at all on the absurdly difficult standard of review, the so-
called conclusive presumption.
I suspect that the NSL power is something the administration is
zealously guarding because it is one area where there is almost no
judicial involvement or oversight. It is the last refuge for those who
want virtually unlimited Government power in intelligence
investigations. And that is why the Congress should be very concerned
and very insistent on making the reasonable changes we have suggested.
We had an interesting discussion on the floor yesterday also about
the sneak-and-peek searches. This is another area where the conference
report departs from the Senate's compromise language, and it is another
reason I must oppose the conference report.
Yesterday, the Senator from Pennsylvania made what seems on the
surface to be an appealing argument. He says the Senate bill requires
notice of a sneak-and-peek search within 7 days of the search, and the
House said 180 days.
The conference compromised on 30 days. ``That's a good result,'' he
says. ``They came down 150 days, we went up only 23. What's wrong with
that?''
Well, let me take a little time to put this issue in context and
explain why this is not just a numbers game. An important
constitutional right is at stake. One of the most fundamental
protections in the Bill of Rights is the fourth amendment's guarantee
that all citizens have the right to ``be secure in their persons,
houses, papers, and effects'' against ``unreasonable searches and
seizures.'' The idea that the Government cannot enter our homes
improperly is actually a bedrock principle for Americans, and rightly
so.
The fourth amendment has a rich history and includes in its ambit
some very important requirements for searches. One is the requirement
that a search be conducted pursuant to a warrant. The Constitution
specifically requires that a warrant for a search be issued only when
there is probable cause and that the warrant specifically describe the
place to be searched and the persons or things to be seized.
Why does the Constitution require that particular description? For
one thing, that description becomes a limit on what can be searched or
what can be seized. If the magistrate approves a warrant to search
someone's home, and the police show up at the person's business, that
search is not valid. If the warrant authorizes a search at a particular
address, and the police take it next door, they have no right to enter
that house.
But, of course, there is no opportunity to point out that the warrant
is inadequate unless that warrant is handed to someone on the premises.
And if there is no one present to receive the warrant, and the search
must be carried out immediately, most warrants require that they be
left behind at the premises that were searched. Notice of the search--
notice of the search--is part of the standard fourth amendment
protection. Without the notice, it does not mean much. It is what gives
meaning, or maybe we should say ``teeth,'' to the Constitution's
requirement of a warrant and a particular description of the place to
be searched and the persons or items to be seized.
Over the years, the courts have had to deal with Government claims
that the circumstances of a particular investigation require a search
without notifying the target prior to carrying out the search. In some
cases, giving notice would compromise the success of the search by
leading to the flight of the suspect or the destruction of evidence.
The two leading cases on so-called surreptitious entry, which would
come to be known as sneak-and-peek cases, came to very similar
conclusions.
Notice of criminal search warrants could be delayed--delayed--but not
omitted entirely. Both the Second Circuit in U.S. v. Villegas and the
Ninth Circuit in U.S. v. Freitas held that a sneak-and-peek warrant
must provide that notice of the search will be given within 7 days--7
days--unless extended by the court. Listen to what the Freitas court
said about such searches:
We take this position because surreptitious searches and
seizures of intangibles strike at the very heart of the
interests protected by the Fourth Amendment. The mere thought
of strangers walking through and visually examining the
center of our privacy interest, our home, arouses our passion
for freedom as does nothing else. That passion, the true
source of the Fourth Amendment, demands that surreptitious
entries be closely circumscribed.
That is the end of the quote from that case.
So when defenders of the PATRIOT Act say that sneak-and-peek searches
were commonly approved by the courts prior to the PATRIOT Act, they are
partially correct. Some courts permitted secret searches in very
limited circumstances, but they also recognized the need for prompt
notice unless a reason to continue to delay was demonstrated. And they
specifically said that notice had to occur within 7 days--7 days.
Section 213 of the PATRIOT Act did not get this part of the balance
right. It allowed notice to be delayed for any reasonable length of
time. Information
[[Page S13558]]
provided by the administration about the use of this provision
indicates that delays of months at a time are now becoming commonplace.
Now, those are hardly the kinds of delays that the courts had been
allowing prior to the PATRIOT Act.
The sneak-and-peek power in the PATRIOT Act caused concern right from
the start, and not just because of the lack of a time-limited notice
requirement. The PATRIOT Act also broadened the justifications that the
Government could give in order to obtain a sneak-and-peek warrant. It
included what came to be known as the catch-all provision, which allows
the Government to avoid giving notice of a search if it would
``seriously jeopardize an investigation.'' Some think that that
justification in some ways swallows the requirement of notice since
most investigators would prefer not to give notice of a search and can
easily argue that giving notice will hurt the investigation.
The SAFE Act, the bipartisan bill that many of us worked on, worked
to fix both of these problems. First, it tightened the standard for
justifying a sneak-and-peek search to a limited set of circumstances--
when advanced notice would endanger life or property, or result in
flight from prosecution, the intimidation of witnesses, or the
destruction of evidence. Second, it required notice within 7 days, with
an unlimited number of 21-day extensions if approved by the court.
The Senate bill was a compromise from this. It kept the catch-all
provision as a justification for obtaining a sneak-and-peek warrant.
Those of us who were concerned about that provision agreed to accept it
in return for keeping, and actually getting back, in my view, from the
court cases, the 7-day notice requirement. And we accepted unlimited
extensions of up to 90 days at a time. The key thing was prompt notice
after the fact, or a court order that continuing to delay notice was
justified.
That is actually the background of the numbers game that the Senator
from Pennsylvania and other supporters of the conference report point
to. They want credit for walking the House back from its outrageous
position of 180 days, but they refuse to recognize that the sneak-and-
peek provision still has the catch-all justification, and unlimited 90-
day extensions. And here is the crucial question they refuse to answer:
What possible rationale is there for not requiring the Government to go
back to a court after 7 days and demonstrate a need for continued
secrecy? Why insist that the Government get 30 days free without
getting an extension? Could it be that they think the courts usually
won't agree that continued secrecy is needed after the search is
conducted, so they would not get the 90-day extension? If they have to
go back to a court at some point, why not go back after 7 days rather
than 30? From the point of view of the Government, I don't see the big
deal. But from the point of view of someone whose house has been
secretly searched, there is a big difference between notice after 1
week and notice after a month.
Suppose, for example, that the Government actually searched the wrong
house, as I mentioned. That is one of the reasons that notice is a
fourth amendment requirement. The innocent owner of the place that had
been searched might suspect that somebody had broken in. They might be
living in fear that someone has a key or some other way to enter.
Should we make that person wait a month to get an explanation rather
than a week? Presumably, if the search revealed nothing, and especially
if the Government realized the mistake and does not intend to apply for
an extension, it surely will be no hardship, other than perhaps
embarrassment, for notice to be given within 7 days.
All of this is about why I am not persuaded by the numbers game on
the sneak-and-peak provisions. The Senate bill was already a compromise
on this very controversial provision. There is no good reason not to
adopt the Senate's provision. No one has come forward and explained why
the Government can't come back to the court within 7 days of executing
the search. In fact, on a discussion of this last night on one of the
television programs, one of my colleagues literally said, 7 days versus
30 days, what is the big deal? That is the strength of the argument.
There is no merit to the idea of making the notice be as potentially
late as 30 days.
Let me put it this way: If the House had passed a provision that
allowed notice to be delayed for 1,000 days, would anyone be boasting
about a compromise that requires notice within 100 days, more than 3
months? Would that be a persuasive argument? I don't think so. The
House provision of 180 days was arguably worse than current law, which
required notice ``within a reasonable time,'' because it created a
presumption that delaying notice for 180 days, 6 months, is reasonable.
It was a bargaining ploy. The Senate version was what the courts had
required prior to the PATRIOT Act. It was itself a compromise because
it leaves in place the catchall provision for justifying a warrant in
the first place. That is why I believe the conference report on the
sneak-and-peak provision is inadequate and must be opposed.
Let me make one final point about sneak-and-peak warrants. Don't be
fooled for a minute into believing that this power is needed to
investigate terrorism or espionage. It is not. Section 213 is a
criminal provision that could apply in whatever kind of criminal
investigation the Government has undertaken. In fact, most sneak-and-
peak warrants are issued for drug investigations. So why do I say they
are not needed in terrorism investigations? Because FISA also can apply
to those investigations and FISA search warrants are always executed in
secret and never require notice. If you really don't want to give
notice of a search in a terrorism investigation, you can get a FISA
warrant. So any argument that limiting the sneak-and-peak power, as we
have proposed, will interfere with sensitive terrorism investigations
is also a red herring.
I have spoken at length about the provisions of this conference
report that trouble me. But to be fair, I should mention one
significant improvement to the conference report over last month's
draft. This new version does include a 4-year sunset on three of the
most controversial provisions: Roving wiretaps, the so-called library
provision which I discussed at some length, and the ``lone wolf''
provision of the Foreign Intelligence Surveillance Act. Previously, the
sunsets on these provisions were at 7 years. It certainly is an
improvement to have reduced that number so the Congress can take
another look at these provisions or can take a look at these provisions
sooner.
I also acknowledge that the conference report creates new reporting
requirements for some PATRIOT Act powers, including new reporting on
roving wiretaps, section 215 sneak-and-peak search warrants, and
national security letters. There are also new requirements that the
Inspector General of the Department of Justice conduct audits of the
Government's use of national security letters and section 215.
In addition, the conference report includes other useful oversight
provisions relating to FISA. It requires that Congress be informed
about FISA court rules and procedures and about the use of emergency
authorities under FISA. And it gives the Senate Judiciary Committee
access to certain FISA reporting that currently only goes to the
Intelligence Committee. I am glad to see that it requires the
Department of Justice to report to us on its data-mining activities.
But adding sunsets and new reporting and oversight requirements only
gets us so far. The conference report remains deeply flawed. I
appreciate sunsets and reporting. I know that the senior Senator from
Pennsylvania worked hard to ensure that they were included. But these
improvements are not enough. Sunsetting bad law for another 4 years is
not good enough. Simply requiring reporting on the Government's use of
these overly expansive tools does not ensure that they won't be abused.
We must make substantive changes to the law, not just improve
oversight. This is our chance. We cannot let it pass by.
Last Thursday, after the conference deal was announced, the Attorney
General termed it a ``win for the American people in that it would
result in continued security for the United States and also continued
protection of civil liberties for all Americans.'' In a way,
[[Page S13559]]
that comment shows that we have made some progress. The administration
seems to understand now that protecting civil liberties is pretty
important to our citizens. That is quite an improvement from the days
when people who expressed these concerns were termed hysterical. But
the Attorney General also said: ``people have seen how the Department
of Justice has been very responsible in exercising [its] authorities.''
This comment reflects a fundamental misunderstanding of the
relationship of the Government and the governed in our democracy. Trust
of Government cannot be demanded or asserted or assumed. It must be
earned. This Government has not earned our trust. It has fought
reasonable safeguards for constitutional freedoms every step of the
way. It has resisted congressional oversight and often misled the
public about its use of the PATRIOT Act. And now the Attorney General
is arguing that the conference report is adequate protection for civil
liberties for all Americans? It isn't.
We sunsetted 16 provisions of the original PATRIOT Act precisely so
we could revisit them and make necessary changes, to make improvements
based on the experience of 4 years with the act, and with the careful
deliberation and debate that, quite frankly, was missing 4 years ago.
This process of reauthorization has certainly generated debate. But if
we pass this conference report as currently written, we will have
wasted a lot of time, and we will have missed an opportunity to finally
get it right. The American people will not be happy with us for missing
that chance. They will not accept our explanation that we decided to
wait another 4 years before addressing their concerns. They will not
settle for half a loaf because we ran out of time to reach consensus.
I submit that an acceptable consensus was reached unanimously by this
Senate, every one of us, back in July. We should insist that the House
pass that bill and give the American people a reauthorization bill that
is worthy of their support and their confidence. I am prepared to keep
fighting for as long as it takes to make that happen.
I thank the Chair and yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I would like to share some thoughts
about the PATRIOT Act and its importance to the security of this
country, its reasonableness, the careful way in which it has been
crafted and adopted, the full debate to which it has been subjected,
and I urge our colleagues not to allow this bill to expire, not to
allow the wall to return so that our foreign intelligence agencies
cannot share with our domestic intelligence agencies information that
may be directly relevant to an attack on the people of the United
States. That is exactly what was taking place on 9/11. It is precisely
why we have had a failure to share important information. And many
people believe that the PATRIOT Act possibly could have prevented the
9/11 attacks. It is easy to contemplate situations where other
information not shared could have resulted in the lives of Americans
being placed at risk or being lost. That is why we passed this bill.
We have had a full debate about it. This past reauthorization came
out of the Senate Judiciary Committee 18 to 0. Senator Feingold
supported it. It came out of the Senate floor by unanimous consent. It
went to a conference committee with the House. They had some different
provisions in their version, as they always do, and the conference
committee hammered out the differences. As Senator Specter, a civil
libertarian himself, and chairman of the Judiciary Committee, who was
involved in that process said, about 80 percent of what was disputed
was decided in favor of the Senate bill. Now we are faced with a
filibuster, an effort to block an up-or-down vote on the PATRIOT Act.
It is really an extraordinary thing. In fact, some of the provisions
put in by the conference committee strengthened the bill, from a civil
liberties point of view, more than the Senate bill that left this body.
I want to just say, first of all, that the provisions in the PATRIOT
Act are in no way extreme, in no way novel, in no way contradictory to
the principles of the constitutional law this country has operated
under since its founding. I mean that very sincerely. I would say that
everything here, in any fundamental way that results in a method by
which law enforcement can investigate terrorist activity--those
procedures, those techniques, those abilities are clarified in this
bill. These are standards that they must comply with, and that have
been approved by the Supreme Court of the United States.
I remember at one of the hearings I asked witnesses this question: Do
you think any of the provisions in this act are going to be found to be
unconstitutional by the Supreme Court as required to protect our
liberties and enforce the constitutional protections that we as
Americans have been given? Every one of them said no. They said that
because there is nothing in here that is going to be found
unconstitutional. All of these principles and techniques that are
provided with clarity, and standards in this act are consistent with
what we have already approved in America. But we find that many of the
investigatory techniques available to an IRS agent who is investigating
somebody for a nonviolent crime involving taxes, or a drug enforcement
agent that may be investigating someone for cocaine or marijuana, and
many of those procedures that have been approved under the Constitution
by the Supreme Court, are not available to investigators investigating
terrorists who would kill us.
Everybody knows that it is a different matter when dealing with
international entities, people who operate outside the laws of our
country, who represent foreign powers, who represent international
terrorist groups or other groups that are hostile to the interests of
the United States. We have always understood that there are spies and
we need a counterspy system in our country which will protect our
Nation from those who would destroy it. We have always had principles
that deal with that. For example, there have been complaints about the
national security letters and section 215. Many of these complaints and
those who oppose these provisions worry and suggest that something in
the PATRIOT Act is novel, unusual, or unprecedented. But it is not so.
I think we have had people who are utterly misinformed or sometimes
maybe even deliberately failing to accurately articulate what is
important and what is correct.
The national security letters that have been referred to by some of
those who oppose this legislation were not created by the PATRIOT Act
of 2001. This tactic, this procedure has been available since the
1980's. All the original PATRIOT Act did was add credit reports to the
list of things you could get with a national security letter during the
course of an investigation involving terrorism. Sometimes you might
need a credit report to determine something about an individual, like
where he is moving his money, and that kind of thing. That is all that
was really added with regard to national security letters. Use of
national security letters is limited to six very specific items:
telephone toll records, bank records, credit reports, and things of
that nature. These are all things that a drug enforcement agent can get
with an administrative subpoena this very day to investigate someone
for a drug crime.
Yet we don't have similar provisions for the FBI agent who is
investigating a terrorist? What kind of idiotic principle of
investigation is that? So the bill allows us to do that with national
security letters. It has been the law for some time--over 20 years. So
we added to the original PATRIOT Act the ability to use a national
security letter to get credit reporting records of suspected
terrorists--a big change that won't be used much. The conference report
more than adequately addresses concerns about the national security
letters by setting an extremely high requirement for nondisclosure.
Under the report, in order for the recipient to be precluded from
telling others that they received a national security letter, a high
Government official must certify that doing so would
[[Page S13560]]
``endanger the national security of the United States or interfere with
diplomatic relations.'' That is an extremely high standard. In fact, I
think it is too high. I think that in a terrorist or national security
case, the disclosure is not such an important principle that needs this
type of protection.
In my view, the standard of certification is high because we may not
always be able to make such certification. An investigator may not be
able to certify to every one of those things and therefore may be
denied the right to obtain a record and not have the business notify
the person about it.
By the way, I will repeat, we are talking about obtaining by national
security letter from a third party, records that belong to the third
party, not to the defendant or terrorist. You are not going into their
house or their automobile or their desk in order to obtain their
personal records. These are records being held at a bank, records to
which everybody in the bank has access. These records are being held at
a telephone company, and show the telephone toll records that you get
on your monthly statements.
They are not in your control. They are in the telephone company's
control. What used to happen was people would subpoena the toll records
and ask the telephone company not to tell the customer, if it was a
sensitive investigation. That has been done by every district attorney
in America. They issue thousands of these subpoenas. Tens of thousands,
I suggest, literally every month are issued for bank records, toll
records every day. You have some expectation of privacy, but you don't
have an expectation that those records will be secretly maintained by
the bank or the telephone company when they are requested by a law
enforcement officer for a law enforcement purpose, and relevant to an
ongoing criminal investigation. That is the law, and it has been that
way forever.
So now, when asking for these records during the course of an
investigation into terrorism, we have to certify that if the recipient
discloses to the terrorist that we are investigating their records, it
would endanger the national security of the United States or interfere
with diplomatic relations. Those are extremely high standards.
I know my colleague--and I respect him--Senator Feingold voted for
the less restrictive certification requirements that unanimously passed
the Senate Judiciary Committee. He was one of the 18 who voted for it.
I don't understand an objection now to the conference report that has a
higher certification standard. The conference report makes clear that a
recipient of an NSL, such as a bank, can consult with their attorney
about the NSL without worrying that the consultation would be an
unlawful disclosure. The conference report makes clear that the bank
can also file a motion to quash the NSL if it does not want to give the
government the information requested, and it makes it clear that the
bank could ask the court to quash the nondisclosure requirement and
allow them to share that information with the customer. So really, the
provisions in this conference report only improve the situation from
the perspective of civil libertarians, if we reject the conference
report these extra protections will not become law.
Let's be frank about this. I am telling you how it works in the real
world. I have been there. The banks simply want to be protected. If it
is lawful for them to turn over the documents they have on a customer
to a law enforcement agency without notifying their customers, they are
perfectly willing to do so. But if they are told that in the law, their
lawyers are now telling them to protect themselves by notifying
customers that they gave their records, and they routinely do so to
protect themselves today. They didn't used to do that 25 years ago, but
it is because of the threat of being sued that they do that routinely
now.
So it is critical that they not disclose because when you are looking
at a terrorist organization, a cell that may be plotting to bomb
someone but you are not sure who is in it and what it is about, and you
are trying to find out about it, maybe you want their bank records,
maybe you want motel records, maybe you want telephone toll records.
They can provide incredibly valuable information to an investigator.
This can prove whether the person being investigated is connected to
terrorists. If you get their toll records and there are 25 phone calls
to Yemen to somebody who has been identified by foreign intelligence as
being connected to al-Qaida, then you have something. So that is very
important. You may not be prepared at that moment to arrest the person.
There may not be enough evidence to arrest them, but now you have a
series of phone calls from a person who is a suspect in some city or
State in this country calling a known terrorist in some other part of
the world. You want to proceed with this investigation, but you don't
want them to know you are on to them.
That is so basic. Talk to investigators. This is what it is all
about. It is not academic. This is life and death. We can't ask too
much of our investigators. We can not tie their hands by demanding they
prove these things beyond a reasonable doubt, and certify all these
facts that they are looking for as true before they do an
investigation.
How do you get the facts? How do you get them? You have to gather the
facts. But if we are not able to gather the facts in a terrorism
prosecution with reasonable investigative tools, then how can we ever
investigate a case and make a good case?
I feel strongly that this is an incredibly important provision and,
in fact, is more civil liberties protective now as it has come out of
conference than it was when it went to conference.
With regard to several other matters, I find the debate to be out of
sync with reality.
Let's talk about the delayed notice search warrants, the so-called
sneak and peek. This provisions is dealing with an everyday, regular
search warrant. These are the type of warrants you need a court to
approve if you are going to search someone's private house or office.
This is not the same as going to the bank and getting a record on third
parties. This is a search warrant to get somebody's own property. You
can't take that property without a search warrant approved by a judge,
and if it is a Federal case, such as a terrorist case, it will be a
Federal judge. To get that warrant, you must prove to that Federal
judge through an affidavit by real witnesses that there is probable
cause to believe that person possesses evidence relevant to an
important criminal investigation.
Senator Feingold is correct, when you get a warrant approved on
probable cause and then conduct the search, you should do it and give
the return on the warrant to the individual whose property has been
searched. If for some reason they are not there, you usually tack it on
the door so they will know you have come, and that is the traditional
way search warrants are done.
In the course of these kinds of investigations, I have had the
personal experience on rare occasion to seek delayed notification, and
I have heard of it on other occasions, I have read about situations
where delayed notice is needed. Courts have approved through the common
law process search warrants which they approve delaying notification to
the person being searched. There can be many reasons, as one can
imagine, why this delayed notice could be good. It had been done for a
long time, long before the PATRIOT Act was passed. The U.S. Supreme
Court has approved the procedure for delaying notice of a search.
All the delayed notification language does in the PATRIOT Act is set
forth standards about how delayed notice procedure should be done.
The Senate bill, when it came out of our committee and voted on the
floor, said you have to either to notify the defendant in 7 days that
you did the search or come back to the judge within 7 days and ask the
judge for more time before you notify them and set forth a reason for
needing more time.
The House passed bill said you could delay notification for up to 180
days before you had to go back to the judge and ask for more time as a
reason to delay the notification. Maybe you have gone in there and
found they are putting material together to make a bomb, or you may
find information that bad guys are coming into town and you need to
wait on them, those kinds of things might justify further delaying
notification. There may be a very delicate investigation of the most
critical national importance. That is
[[Page S13561]]
why delayed notice has been around for decades and that is why the
PATRIOT Act sought to provide a national standard for delayed notice.
So, the House was at 180 days, and the Senate was at 7 days, and we
had a conference. We reached an agreement on 30 days. Well, you would
think this is the end of the world if you believed some of my
colleagues. If you are going to have delayed notification, how long
should it be? Seven days is not a disaster for an investigator,
although it is pretty tight deadline that could cause a good bit of
problem. Thirty is much healthier, in my view. But whether it is 20
days, 40 days, whatever, this search has to be approved by a judge
before it can be conducted. And if the defendant is not notified
immediately, then they have to go back and establish to the court
through evidence and proof that the delay should continue beyond the
time period set.
It is not a big deal. To suggest that 7 days or 30 days is a
difference that invokes some sort of huge constitutional principle that
we should block this bill over and not even give it an up-or-down vote
because of is beyond my comprehension. It is not a critical difference
to our liberties whether it is 7 or 30 days. Some might have a
different opinion. We had to reach a compromise. We rejected the 180
days. We took the 30 days, which is a lot closer to 7 than 180. In my
view, the Senate already won on this issue.
There are a lot of other issues of the same import. I believe we have
gone beyond the pale in criticizing this bill. It has been in effect
for 4 years. None of it has been found to be unconstitutional. It is
now going to be extended. It is already being curtailed by this
conference report in a number of different ways to make the act even
more friendly to civil liberties than it was when we first passed it.
Nothing in the first bill, frankly, represented any reduction in any of
our liberties, the claim that it did is simply untrue. This conference
report has the full support of Chairman Specter and former Chairman
Hatch. Senator Leahy voted for the reauthorization bill before. He
voted for it in committee and then did not object to it moving by
unanimous consent off the floor this year in the Senate.
So now we have some that are making objections to some of the modest
changes that were made in conference. I, frankly, think these changes
were very minor. Our colleagues should not do that. To jeopardize the
continuation of the tremendously valuable principles of the PATRIOT Act
by filibustering this bill--and it will extinguish, critical parts of
it will end soon if we do not break this filibuster and pass the
reauthorization this week--is unthinkable to me. So I encourage my
colleagues, please do not get upset about the conference report by
believing the misinformation that is out there, please read and think
carefully about what is in this bill. If they do so, they will find
that all the provisions in it are consistent with sound constitutional
law. All of these actions and provisions will be affirmed by the
Supreme Court, many of them already have been, and it will be a
tremendous advantage to our investigators who are working their hearts
out this very day, this night, some places in this country today,
investigating those who would do us harm.
I will probably share some more thoughts on some of the other
provisions tomorrow but at this time would yield the floor and in a
moment would, on behalf of the majority leader, do a wrap-up before we
conclude. So therefore I will not put us in a quorum call at this time.
____________________