[Congressional Record Volume 151, Number 161 (Thursday, December 15, 2005)]
[Senate]
[Pages S13608-S13627]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005--
                           CONFERENCE REPORT

  The PRESIDING OFFICER. The order on the floor at this time is to go 
to the conference report to the PATRIOT Act. So under the previous 
order, the Senate will resume consideration of the conference report to 
accompany H.R. 3199, which the clerk will report.
  The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, parliamentary inquiry: I understood 
Senator Harkin had an hour and a half on Labor-HHS and that I would 
have half an hour on Labor-HHS, and we would then go to the conference 
report on the PATRIOT Act.
  The PRESIDING OFFICER. The time of the Senator from Pennsylvania is 
preserved, but it is contemplated that time will be used later in the 
day.
  Mr. SPECTER. Reserved, but later?
  The PRESIDING OFFICER. Correct.
  Mr. SPECTER. May I inquire when later, Madam President?
  The PRESIDING OFFICER. At a time to be determined by leadership.
  Mr. SPECTER. Will it be in advance of the 3:30 vote on the Labor-HHS 
bill?
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, while this discussion is going on, if I 
could also make a parliamentary inquiry.
  Once we begin on the PATRIOT Act, is it my understanding the 
distinguished senior Senator from Pennsylvania is in control of an hour 
and the Senator from Vermont is in control of an hour?
  The PRESIDING OFFICER. The Senator is correct. There will be 2 hours 
equally divided between the two leaders or their designees.
  Mr. LEAHY. Thank you. I appreciate that, Madam President.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, parliamentary inquiry: We are now 
proceeding for 2 hours on the PATRIOT Act, as the distinguished senior 
Senator from Vermont has said, with 1 hour under his control and 1 hour 
under my control?
  The PRESIDING OFFICER. That is correct.
  The clerk will now report.
  The assistant legislative clerk read as follows:

       Conference report to accompany H.R. 3199, an act to extend 
     and modify authorities needed to combat terrorism, and for 
     other purposes.

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
hours equally divided between the two leaders or their designees.
  The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, I encourage anyone who has issues of 
concern to come to the floor at this time so we may consider them. This 
is a very complicated Act. We have had some debate already. On Monday, 
I spoke at some length to describe the Act. On Tuesday, Senator 
Feingold and I had an extended discussion on the act. I talked to other 
of my colleagues who have raised questions about it, specifically the 
Senators who have favored a filibuster. And anybody who has an issue 
which they wish to raise, I would invite them to come to the floor so 
we can take up their concerns one by one. It will be illuminating, I 
think, to other Senators to hear what we are doing on these issues.
  At the outset, I will address some issues which have already been 
raised. One contention has been raised by one Senator on a change in 
the Senate bill to the conference report on challenging efforts to 
obtain documents under section 215. The conference report permits the 
recipient of a 215 order to ``challenge the legality of that order by 
filing a petition [with the Foreign Intelligence Surveillance Court].'' 
That provision omits a phrase from the Senate bill which says that they 
may ``challenge the legality of that order, including any prohibition 
on disclosure, by filing a petition with the Foreign Intelligence 
Surveillance Court.'' And the provision is illuminated on, including 
any prohibition on disclosure.
  Now, one Senator has contended that limits the challenge on 
disclosure, on the so-called gag order, which is not true. Under the 
conference report, under section 215, you may challenge the order, and 
that includes challenging a gag order on nondisclosure.
  This phrase ``including any prohibition on disclosure'' was stricken 
by the conferees, and I believe, on a fair representation, on agreement 
by the distinguished ranking member and me. He is, of course, free to 
speak for himself. But the reason it was stricken--whether it was with 
Senator Leahy's concurrence or not--was we did not want to limit the 
grounds for the court on reviewing the order.
  If you say there is a specification on prohibition of disclosure, it 
may raise the inference that is the reason the court would challenge 
legality. But there is no limitation on the challenge

[[Page S13609]]

to legality. That would enable the petitioner to challenge legality on 
disclosure or for any other reason. So the opportunity to stop a gag 
order is preserved under the conference report.
  A second contention which has been raised is that the conference 
report, on section 215, should not have gone beyond the three criteria 
for establishing a foreign power. In a closed-door briefing, the 
Government presented persuasive reasons to have latitude for the court 
to authorize an order for other tangible things, records, where there 
was a terrorism investigation and there was good reason to believe 
these other tangible records were important for that terrorism 
investigation.
  That was not in the Senate bill, but that was a provision that was 
insisted upon and pressed for by the House, and I thought it was within 
the realm of reason, and we included it. But the protection of civil 
liberties is present in the conference report because the court has to 
find that it is a justifiable request on a terrorism investigation and 
important to that terrorism investigation.
  I have already gone into some detail on the protections in the bill 
for delayed notice provisions, so-called sneak and peek, where the 
Senate bill had a 7-day requirement, the House bill had 180 days, and 
we compromised at 30 days. The Ninth Circuit said that 7 days was 
presumptively reasonable. The Fourth Circuit has set the time at 45 
days. In putting in a 7-day notice, we were not unaware of the fact 
that was a good negotiating position from which to start. The House 
made a concession of 150 days, going from 180 to 30. We made a 
concession of 30 days.
  Bear in mind, on the delayed notice, that is where there is a 
surreptitious, secret search. There has to be justification to get a 
search warrant to have a delayed notice, and it has to be shown to the 
satisfaction of the judge that if there was not that delay, the 
investigation would be impeded.
  Bear in mind, for those listening, the traditional safeguard on civil 
liberty is to interpose an impartial magistrate between the police, law 
enforcement, and the citizen, so that when you have a delayed notice 
provision on a showing of cause, that it would impede the investigation 
if that were not the case.
  We have already gone over in some detail in the Record the tightening 
of the provisions on roving wiretaps, where you have to identify the 
person involved and show that individual is likely to seek to evade the 
wiretap as a justification.
  A key provision we added on the Senate side was the sunset provision, 
where the Senate bill was a 4-year provision, and the House bill was 10 
years. The House wanted to compromise at 7, and we held fast. We had 
assistance from the White House. The President was personally notified 
about this. The Vice President participated. We got that 4-year sunset, 
which is vital, so there will be a review of all of these provisions 
within the 4-year period.
  Bear in mind that the sunset applies to the three controversial 
provisions in the PATRIOT Act. It does not apply to the national 
security letters because the national security letters were not 
authorized by the PATRIOT Act. They have been in existence for decades.
  Now I come to a key consideration under the national security 
letters, where some have objected to the conclusive presumption, where 
there is a certification as provided for in the conference report by 
ranking officials that nondisclosure is required because disclosure 
would hinder national security or would hinder diplomatic negotiations. 
I have discussed this in the past, but it is worth repeating. The 
Senate bill that was adopted unanimously, 18 to 0, in committee, and 
without consent on the Senate floor, had the provision which is 
virtually identical to the conference report. The Senate bill provides 
that in reviewing a nondisclosure requirement:

       The certification by the Government that disclosure may 
     endanger the national security of the United States or 
     interfere with diplomatic relations shall be treated as 
     conclusive unless the court finds that the certification was 
     made in bad faith.

  That language is carried over in identical form in the conference 
report, with the addition that the conference report is more protective 
of civil liberties because the certification cannot be made by just 
anybody in the Government; it has to be made by a ranking official, 
such as the Attorney General or Deputy or head of the FBI.
  Again, let me invite those who have questions on the bill to come to 
the Chamber so we can have a discussion. If anybody has challenged any 
of the provisions, I invite them to come and state their concerns. I 
believe it is in the interest of the consideration by the Senate that 
we consider the bill in detail so that the Members can understand it 
and we can deal with specific objections that anyone has.
  How much time remains of the hour in the morning session?
  The PRESIDING OFFICER. Four minutes 25 seconds remains.
  Mr. SPECTER. I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, I should note while the distinguished 
chairman, the senior Senator from Pennsylvania, is on the floor, that 
nobody has worked more diligently or with more of an effort to reach 
out to both Republicans and Democrats than he has, and to the other 
body. In many ways, he has a thankless job, because he is committed, as 
I am, to having the best antiterrorist legislation this country can 
have. He is committed, as I am, to having the best tools for law 
enforcement. He is committed, as I am, to making sure our liberties as 
a people are protected.
  I am concerned that in the process--not through the fault of the 
distinguished chairman--many wished to raise further issues involving 
our liberties, and people were excluded. That is why we are running 
into a somewhat contentious issue as to whether this conference report 
should go forward.
  Earlier this week, I spoke about how the world changed on September 
11, 2001. Nearly 3,000 lives were lost on American soil. In the 
aftermath of the attacks, Congress moved to quickly pass antiterrorism 
legislation. The fires were still smoldering at Ground Zero when the 
PATRIOT Act became law on October 30, 2001, just 6 weeks after that 
horrible day. I know how hard we worked. I was chairman of the 
Judiciary Committee when we moved that legislation through.
  Security and liberty are always in tension in our free society, and 
especially so in the wake of the attacks of 9/11. The American people 
today and the next generation of American citizens depend on their 
elected representatives to strike the right balance. Preventing the 
needless erosion of liberty and privacy requires constant vigilance and 
vision from those whom the people have entrusted with writing the laws. 
It is the 100 men and women in this body who have to protect the rights 
and liberties of 290 million Americans.
  I see the distinguished Senator from New Hampshire on the floor, Mr. 
Sununu. He made reference yesterday to one of my favorite quotes from 
one of our Founding Fathers, Benjamin Franklin, in which he reminded 
Americans that those who give up their liberties for security deserve 
neither, and I might say in the long run get neither.
  I negotiated many provisions of the PATRIOT Act and am gratified to 
have been able to add some checks and balances that were not contained 
in the initial proposal. But as I said at the time, the PATRIOT Act was 
not the final bill that I or any of the sponsors on either side of the 
aisle would have written if compromise had been unnecessary.
  In reviewing the PATRIOT Act this year, Congress once again tried to 
strike the right balance between the security and the liberty that is 
the birthright of every American. The public expects and deserves that 
we will diligently fight to achieve that balance. But regrettably, the 
PATRIOT Act reauthorization bill that is now before the Senate does not 
accomplish the goal of balance. The bipartisan Senate bill which the 
Senate Judiciary Committee, under the leadership of the distinguished 
Senator from Pennsylvania, and then the Senate adopted unanimously--
unanimously, Madam President--reached a better balance. Even that, 
because it was a matter of compromise, was not a perfect bill. None of 
us thought it was, and we knew there were matters others insisted be 
added which we hoped to be improved in conference.
  But the Senate bill, such as the PATRIOT Act itself, was a 
legislative compromise achieved through good-faith, bipartisan 
negotiations. Chairman Specter and I were able to

[[Page S13610]]

achieve a good enough bipartisan compromise that we were able to gain 
the support of all the Republicans and all the Democrats serving on the 
Judiciary Committee, including Senators who sponsored the SAFE Act. As 
a result of that bipartisan compromise and bipartisan effort, it passed 
unanimously in the Senate last July.
  Then the Senate leadership very responsibly moved promptly to appoint 
conferees. But, unfortunately, the other body did not act as swiftly, 
and we lost several months that could have been used to seek common 
ground between the two versions of the bill. The House delayed 
appointing conferees for several months. They pushed us up against the 
December 31 deadline from the sunsets in the PATRIOT Act.
  In fact, it was only last month that the House finally acted to name 
conferees, and then the conference met only once and that was for 
opening statements. There was never a working meeting of the conference 
in which positions were debated and the conferees were able to offer 
improvements and vote on them. There was no opportunity to debate this 
conference report at a public meeting of conferees, and no opportunity 
to offer improving amendments for consideration by the House-Senate 
conference and votes.
  Instead--and this is most regrettable--there came a point where 
Democratic conferees were shut out of the process. Key negotiations 
took place only among Republican conferees and the administration, 
especially the Department of Justice. The earlier informal bipartisan 
discussions of which I had been involved had been promising. 
Republicans and Democrats were working to come together, and a good 
deal of progress was being made.
  Much of what is good about the conference report that is before us is 
owed to those discussions. I can't help but think what a better bill we 
would have on the floor today had we not been locked out of those 
discussions.
  I thank Chairman Sensenbrenner for acknowledging this week that we 
came to those discussions with good ideas for accountability, for 
sunshine, for increased oversight, for judicial review, and for better 
standards by which to measure the authorities being considered for the 
Government. Tentative agreements were also being reached on removing a 
number of extraneous provisions, particularly from the House-passed 
bill.
  The House version of the bill was loaded with extras, many of which 
had no connection to fighting terrorism. These provisions were tacked 
onto the bill as floor amendments, with little or no debate. Some 
raised very serious concerns. For example, the original House bill made 
significant procedural changes to Federal death penalty laws, including 
the opportunity for Federal prosecutors to convene a new jury and 
effectively get a do-over whenever they fail to persuade a jury to 
impose a death sentence. Can you imagine what this is saying? A jury 
comes back and says we cannot agree to give this person the death 
penalty. One of the greatest things about our jurisprudence system is 
our jury system. They come back and the prosecutor says: We don't like 
that; throw them out, bring in a new jury; let's do it over; let's keep 
doing it over until we get the result the Government wants. This and 
other provisions were dropped or substantially modified during the 
early days of bipartisan meetings.
  No one will be surprised to hear that after Democrats were excluded, 
the negotiations took a turn and resulted in a one-sided conference 
report. The media reported in banner headlines on November 17 that 
Congress had arrived at a deal on the PATRIOT Act; it is all over, we 
are finished. A tad premature. In fact, our first draft conference 
report was widely criticized by Members of Congress in both parties and 
across the political spectrum. Among the Republican Senate conferees, 
there was not the minimum support needed.
  Since that time, I have continued to work with other Senate conferees 
to push for improvements. I also reached out to the White House. I was 
concerned because the administration had gone along with having us 
excluded and basically stopping the good progress we were making. But I 
spent time with them; I reached out to them. And I had many discussions 
with Chairman Specter. The chairman and I have joked on occasion that 
we spend more time talking with each other, more telephone calls back 
and forth to each other than anybody else. I say that as a compliment 
to Senator Specter because, as chairman, he has worked to include 
Republicans and Democrats in all these matters. I especially commend 
the other Senate Democratic conferees--Senators Kennedy, Rockefeller, 
and Levin. They have been constructive throughout the process.

  Since November 17, when it was reported that this process had been 
concluded, our efforts led to significant improvements in the 
conference report. We succeeded in making this a better bill than the 
earlier one being insisted upon before Thanksgiving. The current bill 
contains 4-year sunsets, not 7 or 10-year sunsets. It no longer 
contains a provision that would have made it a crime to merely disclose 
the receipt of a national security letter. The ban against talking to a 
lawyer without first notifying the Government in connection with the 
receipt of a national security letter was modified. Imagine that, it 
basically said you can't talk to a lawyer before you check in with your 
Government first. We produced some improvements and better balance, and 
for that, Americans will be better protected.
  I believe that there is still more that we can do and should do 
before finalizing this important measure. There are more improvements 
that we can make and, I believe, would have made in an open, bipartisan 
conference. There are more assurances we can include in the law so that 
the American people can have greater confidence in the law, how it will 
be utilized and how Congress and the courts will ensure their rights 
are protected.
  This week, along with Senator Sununu, Senator Craig, Senator 
Murkowski, Senator Hagel and others, I cosponsored a bill to provide a 
short-term extension of the expiring PATRIOT Act provisions so that we 
can continue working to make additional improvements to the law. I was 
disappointed to hear that some are saying that unless this conference 
report is passed in this form, they would stand by to allow the PATRIOT 
Act provisions like that regarding sharing of important information 
with our intelligence community to expire. Those of us working to 
improve the bill are not taking that position. We want the best bill we 
can achieve and the greater protection of Americans' civil liberties.
  In an editorial just yesterday, USA Today chided the Bush 
administration and its allies in Congress for ``resist[ing] calls for 
more meaningful protection against invasion of privacy and abuse of 
civil liberties.'' It supported the proposal that Senator Sununu and I 
have advanced to extend the PATRIOT Act for 3 months to allow more time 
to fix what is wrong.
  I am encouraged that an FBI spokesman is now endorsing the 
improvements we have been able to achieve over the last month and which 
the administration had initially opposed. I know that together we can 
do better.
  I did not sign the conference report in its current form. I 
understand that on Wednesday more than 200 Members of the House, both 
Republicans and Democrats, voted to recommit this conference report and 
continue working to improve it. I have spoken to Senators on both sides 
of the aisle who would like to see us work out a better bill and 
stronger protections for the American people. I agree and will continue 
working to achieve that. I believe that the approach Chairman Specter 
and I took of working together in a bipartisan manner is the better 
approach. I think that had we followed through with that approach we 
would have reached a better balanced bill and the American people would 
have more confidence in it.
  It is not just the provisions of the law itself, but the way they are 
administered and enforced and the perception of the American people 
that matter. Let me give an example. As librarians and others across 
the country raised concerns about the use of the business records 
subpoena authority in the PATRIOT Act, Attorney General Ashcroft could 
have defused the situation from the outset. Instead he was secretive 
and scared the American people. He would not work with or share 
information with the Congress. He claimed variously that the provision 
had not been used with libraries but then obfuscated when asked whether 
national security

[[Page S13611]]

letters were being used in connection with library records. He then 
classified even the number of subpoenas served upon libraries. When 
that number was later unclassified, is there any wonder that people 
remained concerned?
  He could and should have worked with Congress to develop better 
standards and review and oversight. This could have been done 
administratively or with a legislative correction. Instead, he hoarded 
the information, raised suspicions and attacked anyone who raised 
questions about how government power was being used.
  I want to express my appreciation, in particular to Chairman Specter, 
but also to Chairman Sensenbrenner. I do not question their motivation. 
I respect them. Together they have worked with us to correct several of 
the problems and concerns about earlier drafts of this conference 
report. As I have noted, Chairman Specter did speak with me and we had 
many, many discussions about these issues throughout this process. I 
appreciate his efforts. I regret that we were not able to achieve more 
of what we had achieved--both the bipartisan process and some of the 
specifics of the Senate-passed bill.
  Both Chairman Sensenbrenner and Chairman Specter share my interest in 
congressional oversight, and the conference report is a better bill 
because of it. Throughout the early informal, bicameral discussions and 
earlier during the Senate's bipartisan consideration of this matter, I 
advanced several ``sunshine'' provisions to facilitate oversight and 
ensure some measure of public accountability for how the government 
uses its powers. The conference report contains most of these 
proposals, including public reporting and comprehensive audits on the 
use of two controversial PATRIOT Act provisions--both business record 
subpoenas and national security letters.
  In addition to sunshine provisions, I proposed that we retain the 
sunset mechanism that worked so well in the original PATRIOT Act. Back 
in the fall of 2001, Republican House Majority Leader Dick Armey and I 
insisted on 4-year sunsets for certain PATRIOT Act powers with great 
potential to affect the civil liberties of Americans. Those sunsets 
contributed greatly to congressional oversight. The fact that they were 
included is the reason we are going through this important review and 
renewal process now.

  This year, I proposed and the Senate agreed to 4-year sunsets on 
three key provisions. The House initially approved 10-year sunsets on 
two provisions. With steadfastness and hard work on the part of Senate 
conferees, we were able to achieve the 4-year sunsets that were in the 
Senate bill. I commend, as well, Representative Conyers and the House 
for passing an instruction to the House conferees to abide by the 4-
year sunsets. Despite strong majority support in both bodies for 4-year 
sunsets and even after the House had voted to instruct its conferees, 
it took weeks to persuade Republican leaders in the House and the 
administration to accept this commonsense measure.
  The enhanced oversight provisions and 4-year sunsets are positive 
features of the conference report to be sure, but many problems remain. 
Let me touch briefly on some of the flaws in this conference report 
that are still troubling to Senators from both sides of the aisle and 
to those concerned about civil liberties advocates from both the right 
and the left.
  I will start with the conference report's treatment of section 215 of 
the PATRIOT Act, the so-called library provision. Under Section 215, 
the government can obtain a secret order that compels access to 
sensitive records of American citizens, potentially library records, 
and also imposes a permanent gag order on the recipient.
  Before passage of the PATRIOT Act, there were two significant 
limitations on the FBI's power to seize business records. First, it 
could be used only for a few discrete categories of travel records, 
such as records held by hotels, motels, and vehicle rental facilities. 
Second, the legal standard for obtaining the order was demanding. The 
Government had to present specific and articulable facts giving reason 
to believe that the subject of the investigation was a foreign power or 
an agent of a foreign power.
  The PATRIOT Act did away with these limitations. It both expanded 
what the FBI may obtain with a section 215 order and it lowered the 
standard for obtaining it. Under current law, the government need only 
assert that something--anything--is sought for an authorized 
investigation to protect against terrorism or espionage, and the judge 
will order its production. Under this provision, what counts as an 
authorized investigation is within the discretion of the executive 
branch.
  The Senate, in its reauthorization bill, rightly reestablished a 
significant check on this power. Under the Senate bill, relevance to an 
authorized investigation is not enough; the government must also show 
some connection between the records sought and a suspected terrorist or 
spy. This is a fundamental protection that would not hamstring the 
government, but would do much to prevent overreaching in government 
surveillance. Unfortunately, it was stripped out in conference.
  The conference report is deficient with respect to section 215 in two 
other respects. First, unlike the Senate bill, the conference report 
does not permit the recipient of a section 215 order to challenge its 
automatic, permanent gag order. Courts have held that similar 
restrictions violate the first amendment. Contrary to what has been 
suggested this morning, I fought to keep the Senate language on this 
point, to make sure that a section 215 gag order could be challenged in 
court. I thought it had been accepted at one point during the early, 
bipartisan negotiations. It was removed from the working draft when the 
bipartisanship ended and Democratic conferees were shut out.
  Second, the conference report allows the Government to use secret 
evidence to oppose a judicial challenge to a section 215 order. At the 
Government's request, the court must review any Government submission 
in secret, regardless of whether it contains classified material. This 
has the potential to turn an adversarial process into a kangaroo court, 
and will at a minimum make it extremely difficult for the recipient of 
a section 215 order to obtain meaningful judicial review that comports 
with due process. I proposed that we at least allow for limited 
disclosure, with appropriate security protections, if necessary for the 
court to make an accurate determination. Again, this modest attempt to 
allow for meaningful judicial review was tentatively accepted during 
early bicameral discussions, only to be stripped out when the 
administration stepped in.
  The conference report also falls short on its treatment of National 
Security Letters, or NSLs. These are, in effect, a form of secret 
administrative subpoena. They are documents issued by FBI agents 
without the approval of a judge, grand jury, or prosecutor. They allow 
the agents to obtain certain types of sensitive information about 
innocent Americans simply by certifying its relevance to a terrorism or 
espionage investigation. Like section 215 orders, NSLs come with a 
permanent gag. The recipient of an NSL is prohibited from telling 
anyone that he has been served.
  Proponents of this conference report have made much of the fact that 
it creates an explicit right to challenge an NSL in court. But even 
under current law, NSLs can be, and have been, successfully challenged. 
Indeed, in recent litigation, the Government has taken the position 
that NSL recipients have an implied right to judicial review. Making 
this right explicit makes sense, but it does not, in itself, offer 
significant protection.
  That is particularly so given the one-sided procedures set forth in 
the conference report, which do not allow meaningful judicial review of 
NSLs' gag order. The conference report requires a court to accept as 
conclusive the Government's assertion that the gag is needed, unless 
the court finds the Government is acting in bad faith. This raises 
serious first amendment and due process concerns. I cannot understand 
why anyone would insist on provisions that tie the hands of Federal 
judges and further reduce our confidence in the use of these tools. 
Yet, despite strong opposition to this provision from the right and the 
left sides of the political spectrum, House Republicans refused to 
strip it out.

  In an editorial this week, the Washington Post noted the conference 
report's deficiencies with respect to section 215 orders and NSLs, but 
called them ``not unsolvable,'' adding ``it's

[[Page S13612]]

hard to believe the government is today getting much data through uses 
of these powers that would be forbidden were they written more 
accurately.''
  Alternatively, Democratic conferees proposed a 4-year sunset on the 
NSL authority. While a sunset is no substitute for substantive 
improvement, it would at least have ensured that Congress would revisit 
this issue in depth. We would have had an opportunity, then, to study 
how these judicial review procedures worked in practice. Again, House 
Republicans rejected this path to bipartisan compromise.
  The conference report's treatment of the PATRIOT Act's so-called 
sneak and peek provision is another area of concern. Section 213 of the 
PATRIOT Act authorized the Government to carry out secret searches in 
ordinary criminal investigations. Armed with a section 213 search 
warrant, FBI agents may enter and search a home or office and not tell 
anyone about it until weeks or months later.
  It is interesting to recall that 4 years ago, the House Judiciary 
Committee took one look at the administration's original proposal for 
sneak and peek authority and dropped it entirely from its version of 
the legislation. As chairman of the Senate Judiciary Committee, I was 
able to make some significant improvements in the Administration's 
proposal, but problems remained. In particular, Section 213 says that 
notice may be delayed for ``a reasonable period,'' a flexible standard 
that has been used to justify delays of a year or more. Pre-PATRIOT Act 
case law stated that the appropriate period of delay was no more than 7 
days.
  The Senate voted to replace the ``reasonable period'' standard with a 
basic 7-day rule, while permitting the Government to obtain additional 
90-day extensions of the delay. The conference report sets a 30-day 
rule for the initial delay, more than three times what the Senate, and 
pre-PATRIOT Act courts, deemed appropriate. The shorter period would 
better protect fourth amendment rights without in any way impeding 
legitimate Government investigations. The availability of additional 
90-day extensions means that a shorter initial time frame should not be 
a hardship on the Government.
  This conference report also is loaded with extraneous provisions that 
have nothing to do with the expiring PATRIOT Act authorities, or even 
with terrorism.
  I am particularly concerned that the conference report modifies 
habeas corpus law, a highly controversial move that is wholly improper 
to consider in this context. The changes to habeas added here at the 
insistence of a small number of Republican conferees have nothing to do 
with terrorism or even more general tools of federal enforcement. These 
changes were not included in the PATRIOT Act reauthorization bill of 
either the House or the Senate. They were added late in the conference 
process, after all Democratic conferees were shut out of discussions. 
They received no serious consideration by either body's Judiciary 
Committee, and have been strongly opposed by the U.S. Judicial 
Conference and others. And yet these modifications could have very 
serious consequences--possibly unintended consequences--in habeas cases 
that are already pending in California and other States.
  The conference report includes a version of the Combat 
Methamphetamine Epidemic Act of 2005, a bill that, like the habeas 
provisions, is extraneous to the PATRIOT Act reauthorization. The 
version in the conference report contains troubling provisions that I 
wish could have been debated fully before we were forced to vote on 
them in this context. A portion of the bill lowers the threshold of the 
amount of money or drugs necessary for a defendant to qualify as a 
``kingpin'' and to therefore be subject to a mandatory life sentence. 
This is an excessively harsh sentence for a pool of people who are not 
truly drug kingpins. No one has sympathy for producers and dealers of 
methamphetamines, but the punishment must fit the crime, and in these 
cases, mandatory life is disproportionate.
  During early negotiations on the conference report, I fought to 
strike title II of the House bill, which included provisions that 
vastly expanded the Federal death penalty and removed important 
protections for the criminally accused. I already noted one 
particularly problematic provision, which allowed Federal prosecutors a 
``do-over'' whenever they failed to persuade a jury to impose a death 
sentence. Another provision was designed to carve out a category of 
homicides that would be eligible for capital punishment despite the 
fact that the defendant did not himself kill, intend to kill, or 
knowingly create a grave risk of death. Yet another provision would 
have substantially narrowed the jury's power to consider, as a reason 
not to impose the death penalty, the fact that other equally guilty 
offenders in the same case were escaping such punishment. These 
extraneous and ill-considered provisions were ultimately dropped from 
the conference report, for which we should all be grateful.
  House Republicans did, however, insist on keeping other death penalty 
provisions in the conference report. The most objectionable of these 
will revive a small group of pending death penalty prosecutions for 
aircraft hijacking murders committed in the 1970s and 1980s. 
Specifically, it is designed to overrule the district court decision in 
United States v. Safarini, which struck the death penalty for a 1986 
hijacking offense on the grounds that the Federal Death Penalty 
Procedures Act of 1994 could not be retroactively applied to a pre-1994 
crime, at least absent clear congressional intent to do so.

  To my knowledge, Congress has never enacted death penalty legislation 
intended to allow the execution of a tiny number of known offenders for 
crimes they are alleged to have committed from one to three decades 
previously. Whether the Government can ultimately persuade the courts 
that this does not violate the letter of the Ex Post Facto and Bill of 
Attainder clauses, it certainly violates their spirit. It is telling 
that the Department of Justice, in its testimony before the House 
Judiciary Committee, strongly recommended adding in a severability 
clause, in case this provision was ultimately held invalid by a court 
of law. I share the Department's skepticism regarding the 
constitutionality of this wrong-headed provision, and deeply regret its 
inclusion in the conference report.
  The reauthorization of the PATRIOT Act must have the confidence of 
the American people. I believe what we passed in the Senate would have 
the confidence of the American people. This conference report would 
not.
  Congress should not rush ahead to enact flawed legislation to meet a 
deadline that is within our power to extend. We owe it to the American 
people to get this right.
  The bipartisan bill I introduced with Senator Sununu and others to 
provide a three-month extension for the expiring provisions of the 
original PATRIOT Act will give us the time to achieve the best bill for 
all Americans.
  This is a vital debate. It should be. These are vital issues to all 
Americans. If a brief extension is needed to produce a better bill that 
would better serve all of our citizens then by all means, let us take 
that time.
  We should not finalize the conference report on the PATRIOT Act 
without fully addressing the privacy and civil liberties concerns that 
remain in the conference report. It is our job in Congress to work as 
hard as it takes to protect both the security and the freedoms of the 
people we represent.
  A nation built on freedom, as America is, can do better, and if we 
work together, we will do better.
  Mr. President, I yield to the distinguished senior Senator from 
California 5 minutes.
  The PRESIDING OFFICER (Mr. Ensign). The Senator is recognized.
  Mrs. FEINSTEIN. Mr. President, I thank the ranking member very much. 
I would like to make a brief statement. I am not sure I can do it in 5 
minutes. I may have to ask unanimous consent for a little additional 
time.
  Today the Senate is taking up the conference report to accompany the 
PATRIOT Act. I am the original Democratic cosponsor of the unanimously 
passed Senate bill, as well as cosponsor of the Combat Meth Epidemic 
Act and the Port Security Crimes Act, both of which are incorporated in 
the conference report. Thus, it is only after careful consideration 
that I have determined to vote against cloture tomorrow, and I would 
like to take a moment to explain why.

[[Page S13613]]

  I fear that it is going to be a very divisive and partisan vote 
tomorrow. The USA PATRIOT Act has been a valuable tool in our effort to 
combat terror, but it has also become a divisive point of contention 
between Democrats and Republicans and, as a result, doesn't have the 
broad support of the American people. Thus, it is extremely important 
that every effort be made to reach an accommodation before debate 
becomes contentious and even more partisan.
  Outside the beltway, the USA PATRIOT Act has come to be terribly 
misunderstood. Many believe it is related to Guantanamo Bay and the 
detention of prisoners. Others believe it authorizes torture or the 
secret arrest of Americans. It does none of these things.
  At the same time, some have irresponsibly sought to characterize 
anyone who seeks to improve or criticize the law as somehow playing 
into the hands of the terrorists. They have implied that the USA 
PATRIOT Act will expire in its entirety on December 31, and we will be 
left with no defense against terrorist acts. This, too, is untrue.
  What is true is that when it comes to national security, it is so 
important to build consensus. Our efforts to combat terror in general, 
and the authorities in the PATRIOT Act specifically, are diminished in 
effectiveness if they are not seen by most Americans as the product of 
bipartisan effort in Washington.
  I believe our Nation's safety requires this body to reach compromise 
on this bill.
  That is why, when Senator Specter asked me to join him in introducing 
the Senate bill, I agreed. I want to say something. Senator Specter has 
been a wonderful chair of the Senate Judiciary Committee. He listens, 
he is open, he is smart, he is legally pristine, and he has been a fine 
leader for the committee.
  I believed Senator Specter, working with Senator Leahy and the 
members of the Judiciary Committee, would be able to build consensus, 
to reach compromise, and deliver legislation that the American people 
could be confident represented bipartisan agreement, not politics.
  My confidence in Senators Specter and Leahy and my colleagues on the 
committee was well placed. In July, the committee unanimously reported 
the bill favorably, and shortly thereafter the Senate, again 
unanimously, passed the bill.
  Having a USA PATRIOT Act reauthorization bill, supported by Senators 
Cornyn and Schumer, Kyl and Feingold, Hatch, Kennedy, and every single 
Member of this body gave me great comfort, and I believe was an 
important step toward healing the divisive partisanship that has come 
to be associated with the bill.
  Unfortunately, that spirit seems to have ended. The conference report 
process, instead of bringing unity, appears to have had the opposite 
result: dividing my colleagues by failing to adequately take into 
account differing views on elements of the bill. The simple result is 
that in the next day we are likely to divide into two camps.
  In the end, of course, we will extend the PATRIOT Act's expiring 
provisions in some form because despite the rhetoric, nobody doubts 
that the provisions will be extended. What is at issue is whether and 
to what extent modifications are made.
  What will be lost is the much needed sense that the PATRIOT Act 
represents a broad consensus. That may be more important than the 
specific details of provisions and issues. I believe it is. The bottom 
line is that having a consensus bill is of paramount importance. So I 
rise today because I still believe----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEAHY. Mr. President, I ask the Senator from California how much 
more time she requires.
  Mrs. FEINSTEIN. May I have 5 minutes more, please.
  Mr. LEAHY. Mr. President, I yield 5 additional minutes to the Senator 
from California.
  Mrs. FEINSTEIN. I thank the Senator from Vermont.
  Yesterday, I urged Majority Leader Frist to work as hard as he can to 
bring people back to the table before the vote. The day before, I urged 
Attorney General Gonzales to work with Senators Leahy and Specter 
toward the same end. I have said the same thing to Senators Specter and 
Leahy personally, and today I renew this request.
  Press reports today quote insiders saying that efforts to reach 
compromise have been abandoned. Some seem to believe that a filibuster 
fight would be an opportunity to force Democrats into bad votes, thus 
securing partisan advantage in upcoming elections.
  Others seem to believe that the American people can be tricked into 
thinking that Members such as Senators Craig, Sununu, Murkowski, Hagel, 
Obama, Durbin, Feingold, Salazar, and Kerry, all of whom signed a 
moving letter yesterday explaining why they would vote against cloture, 
are somehow helping terrorists. Still others, counting the votes, think 
the opportunity to embarrass the administration is too good to miss.
  I reject these positions. Instead, I ask respectfully that we get 
back to work.
  I strongly urge my colleagues to carefully read the letter sent by 
this group of Senators. While I do not agree with every one of their 
points, the key issues they raise have merit and should be addressed.
  The most important of the issues they raise involve section 215--the 
so-called library provision--and provisions governing judicial review, 
particularly of national security letters. I believe on these two 
issues, as well as some of the others, continued good-faith negotiation 
will result in solving the problems in a way that will be acceptable to 
a vast majority of this body and will not in any way diminish the 
ability of our law enforcement and intelligence organizations to do 
their job.
  Congress has a long and honorable tradition of putting aside party 
politics when it comes to national security. We were able to do that in 
the Senate with this bill. So it is critical that this approach be 
carried forward to the end.
  I believe the unanimously passed Senate bill represents that 
compromise. And while I understand that some accommodations must be 
made to the House, these cannot be so great as to destroy the consensus 
in the Senate that we have built.
  I know that Senator Specter and Senator Leahy have worked long and 
hard. I also know that Senator Leahy made some compromises to vote for 
the Senate bill that passed this body unanimously. I asked Senator 
Specter and Senator Leahy to please try once again to achieve the 
compromise that we had when the Senate bill passed this body 
unanimously.
  I believe national security deserves no less, and I believe the 
distinguished leadership of the Judiciary Committee, Senator Specter 
and Senator Leahy, can achieve this if given the opportunity and if the 
leadership puts its clout behind bringing the House on board as well.
  Absent that, I will vote for the Sununu legislation to provide an 
element of time. I also ask that the meth bill, as well as the port 
security bill, be added to his legislation. I thank the ranking member 
and the chairman and I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, while the Senator from California is on 
the floor, I want to thank her for the complimentary comments, and I 
want to thank her for being a very productive and constructive member 
to the Judiciary Committee not only this year while I have been 
chairman but for many years. She and I had a 30-minute conversation 
yesterday by phone, after working hours, talking about these issues. If 
there are any specific points that trouble the Senator from California, 
I would be glad to discuss them with her, not only to try to deal with 
any issue she has, but I find that is a good method for acquainting all 
the Senators with what is at issue in the bill.
  I note there were no specific issues raised, and I am not asking that 
specific issues be raised. I heard what the Senator from California 
said, and I agree with her about the point of consensus. Senator Leahy 
and I have established a superb relationship, with bipartisanship, 
which has made the committee function this year, I think, very 
successfully. I do not think anyone could fault our efforts to come to 
terms. We just could not do it with the

[[Page S13614]]

House of Representatives, in a bicameral system, as to what we could 
accomplish.
  I congratulate Chairman Sensenbrenner for going the extra mile. But 
if we could just run it through the Senate without a bicameral 
legislature, it would be a little different. Then we would have the 
Senate bill.
  But there is one thing I would disagree with the Senator from 
California about--when she says we are going to have a bill. We may not 
have a bill. The majority leader has said he is not going to go along 
with the 3-month extension. There is a real issue as to whether the 
House will take up a 3-month extension. We face many situations in the 
closing days of the Congress where the House finishes its work and 
departs. We have taken a lot of House bills where we had no choice, 
when they were gone. But we may well not have a 3-month extension, and 
this bill may well expire. That is an alternative which has to be 
considered by every Senator. I believe there are some Senators who 
would say they will take the responsibility for having the bill expire, 
the act expire. Some will take that.
  If cloture is not invoked and somebody says, Arlen Specter, go back 
and work on it some more, I will salute and I will be a good soldier 
and I will go back and work on it some more. But there are going to 
have to be a lot of moving parts coming into place before there is 
going to be an extension beyond December 31. I think people ought to 
consider that.
  When the majority leader says he is not for it--if he will not take 
it up, there will be none. Even if he does take it up and even if we 
pass it, which we might not--if it is not taken up by the House, there 
will be none. So I believe we have to consider the alternative that 
there will not be a bill if this bill is not passed. That brings me 
back to my point about the specific objections.
  I see Senator Sununu in the Chamber, and I am anxious to have a 
colloquy with him, if he is willing to do so. But I just wanted to 
thank the Senator from California and raise those considerations.
  Mrs. FEINSTEIN. I wonder, Mr. President, if you will allow me a brief 
response to the chairman and manager of the bill.
  Mr. SPECTER. May I suggest it be on the time of Senator Leahy.
  Mrs. FEINSTEIN. I don't want to take Senator Leahy's time.
  Mr. LEAHY. How much time is remaining to the Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Vermont has 38 minutes. The 
Senator from Pennsylvania has 45 minutes.
  Mr. LEAHY. And the last colloquy with the Senator from Pennsylvania--
  The PRESIDING OFFICER. It was on the time of the Senator from 
Pennsylvania.
  Mr. LEAHY. I yield to the Senator from California.
  Mrs. FEINSTEIN. I very much appreciate the conversation we had last 
night, where I tried to share this view. I thank the Senator for 
listening.
  It seems to me, and Senator Leahy will certainly correct me if I am 
wrong, that the crux of the problem revolves around two sections of the 
bill. It seems to me there is more than one way to solve that problem. 
I just think if the two of you got together, and the chairman of the 
Judiciary Committee of the House, that there might be consensus 
reached. I believe the rest of the bill certainly can go into play. I 
do not see any problems with those, on my part. But I think Senator 
Leahy, who has participated in this--let me say another thing.
  I believe there is a real problem in these conferences where people 
get shut out at certain points. It is counterproductive. I would urge 
that not happen in the future because when it does, I believe it 
conditions, negatively, the entire remainder of the conference.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, on my time, if the Senator from 
California would identify the two sections she is concerned with, I 
would appreciate it.
  Mrs. FEINSTEIN. It is the national security letters and section 215.
  Mr. SPECTER. I thank the Senator from California and yield the floor.
  Mr. LEAHY. Mr. President, I also thank the Senator from California 
for her involvement. Nobody wants to kill the PATRIOT Act by this 
action. I know our distinguished majority leader has said he would 
oppose the extension. We will see what happens in that vote. Many of us 
say we will oppose things, and they happen. I am talking about the 3-
month extension. Even if the other body has left, they always leave 
back a couple of people who can do things by unanimous consent.
  The Senator from New Hampshire is in the Chamber. How much time does 
he wish?
  Mr. SUNUNU. May I have 4 minutes to touch on a few points?
  Mr. LEAHY. I yield 4 minutes to the Senator from New Hampshire.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. SUNUNU. Let me begin by addressing a concern that was just 
raised. It was suggested that if cloture is not invoked tomorrow that 
there might not be a 3-month extension and the expiring provisions of 
the PATRIOT Act, which are now law, would effectively be killed. Why 
would there not be a some short-term extension of the PATRIOT Act of 3 
months or 6 months? It would be because some Member of Congress--I hope 
no one in the Chamber at the moment--but some Member of the House or 
Senate thinks that we will be better off without a PATRIOT Act, rather 
than with a 3-month extension.
  I suggest, No. 1, that is absolutely irresponsible, and, No. 2, that 
anyone who would make that argument is suggesting that the President, 
Chairman Specter, and the ranking member, Senator Leahy, are insincere 
in their suggestion that the tools provided to law enforcement under 
the PATRIOT Act are extremely important tools that law enforcement 
genuinely needs.

  Anyone who would be willing to oppose a temporary extension and 
prevent some elements of the PATRIOT Act to remain in force is either 
behaving irresponsibly or they are arguing--and it may be a heartfelt 
belief on that person's part that current law actually is not as 
important as they had previously suggested. I believe everyone can 
decide for themselves what they think the likely option, the almost 
certain option would be if cloture is not invoked.
  With regard to the substantive concerns, there are many. But let me 
first address the issue of the national security letters. Under the 
conference report, there is no meaningful judicial review of a national 
security letter or its accompanying gag order because the threshold 
that has to be met by an individual or a business served with a 
national security letter is a showing of bad faith on the part of the 
Federal Government. You will never win that argument in court. You will 
never be able to meet that high a threshold. Therefore, even in the 
most egregious cases, you will never overturn the national security 
letter or its accompanying gag order.
  The suggestion that this concern is moot because similar language was 
in the Senate-passed version is irrelevant because that Senate-passed 
version also included a real standard on Section 215 subpoenas, which 
required the individual to be connected to a terrorist or spy; it 
included a judicial review of the gag order associated with a 215 
order; and it included a 7-day notification period for delayed notice, 
or sneak and peak search warrants. All of this, which again, we 
approved in the Senate package, has been scrapped.
  When we saw the Senate bill, many of us were not happy with that 
national security letter language. But in that bill we had other 
substantial gains for civil liberty protections, and those have been 
left at the doorstep by this conference report. To come back and say to 
us now that our concerns about national security letters do not count 
because they were part of some previous compromise that is no longer 
before us avoids the substantive concerns we have raised.
  There are other problematic provisions that were put into the bill in 
conference that were not part of the Senate bill. Under the conference 
report, you have to tell the FBI if you want to challenge a national 
security letter or 215. That means you have to tell the FBI you have 
hired an attorney and you have to tell the FBI the name of the 
attorney.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. SUNUNU. I ask for 1 additional minute.

[[Page S13615]]

  Mr. LEAHY. I yield an additional minute.
  Mr. SUNUNU. I am not a lawyer. I am an engineer by training. But I 
know of no other provision in law where that is required. Even if it is 
required in a few very limited cases in law, I believe this will 
provide a chilling effect on our right to counsel. I believe such a 
requirement is an unnecessary limitation on our civil liberties.
  I have one final point about the arguments made by the administration 
and by some here in the Senate. The suggestion was made that changes do 
not need to be made because there has been no evidence of abuse of the 
existing law. We do not seek to insert protections for civil liberties 
in law because we do not trust a particular person. The Framers enacted 
the fourth amendment to the Constitution, not because they didn't trust 
George Washington but because they wanted to protect these freedoms in 
perpetuity.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, the Senator from New Hampshire is wrong 
on what this law provides. When he picks up the national security 
letter and says it may be challenged only on the bad faith requirement, 
he is wrong. There may be a challenge and the national security letter 
may be quashed under the express terms of the conference report if it 
is unreasonable or oppressive. The national security letter was not 
created by the PATRIOT Act, but we took this occasion to put civil 
liberty safeguards in this bill on the national security letter by 
eliminating the prohibition against consulting with a lawyer. Today, if 
you get a national security letter, you can't talk to a lawyer.
  The conference report gives an explicit right to talk to a lawyer. 
There had been a provision that before you talked to a lawyer you had 
to tell the FBI who the lawyer was. Senator Leahy raised an objection 
to that point, and he was right, and it was corrected. Yet if the FBI 
asks you who your lawyer is, then you have to tell them. But you don't 
have to go to the FBI first and disclose who your lawyer is.
  But there are significant changes in the conference report beyond the 
bad-faith issue that the Senator from New Hampshire talks about, and we 
ought to recognize that. But this conference report goes a long way to 
protect civil liberties by specifically saying you can go to a lawyer 
and get it quashed for certain reasons.
  As to the bad-faith requirement, the Senator from New Hampshire skims 
lightly over the fact that the Senate bill was even tougher than the 
conference report by going on to other sections. That is obscuring the 
issue. Take up the bad-faith requirement. I already read it a couple of 
times, this morning and on Monday and on Tuesday. But the Senate 
language was identical.
  But the conference report is more protective of civil liberties 
because, while the Senate bill said the Government had to certify 
anybody in the Government, the conference report requires a ranking 
official.
  But the Senator from New Hampshire then skips over to the 7-day 
requirement on notification.
  There is already a protection of civil rights because the court has 
to make a finding that the delayed notice is important to the 
investigation, or will hinder the investigation.
  To have the Fourth Circuit saying ``45 days'' when you have the 
current law saying ``reasonable,'' which could be anything, as a 
bargaining matter, we come with the Senate report at 7 and the House is 
at 180. We compromised at 30, and I think that is not unacceptable. Is 
it what Arlen Specter would like, or what Senator Sununu would like?
  But when the Senator from New Hampshire talks about getting an 
agreement where the House and Senate disagrees and you have an impasse, 
you don't have a bill.
  Chairman Sensenbrenner went the extra mile. Is he going to go 
further? That is a big question? If there is an impasse, there is no 
bill.
  To repeat, if cloture is not invoked, we don't have a bill, and I 
will go back to work. I will go back to the drawing board, and I will 
try to get a bill. But that doesn't say that there will be a bill when 
the majority leader has said he is not going to take up an extension 
and you have to get agreement from the House.
  On the section 215 provision, the conference report does give 
additional leeway beyond the three-pronged test. But we still have 
judicial review which you do not have today; and that is the 
traditional way of interposing the impartial magistrate between the 
citizen, on the one hand, and the law enforcement officers on the 
other. There have to be many hurdles gone through to get a terrorism 
investigation authorized. It is only a terrorism investigation where 
the court can allow the latitude to get somebody's records where it is 
important to the investigation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, I ask to be yielded 1\1/2\ minutes.
  Mr. LEAHY. I yield 2 minutes.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. SUNUNU. Mr. President, I want to be courteous to my colleagues 
who wish also to speak, so I will briefly address a couple of the 
points raised.
  First, I never suggested that the ability, allowed under the 
conference report, to hire a lawyer to challenge an NSL is an 
improvement. I am for that. I don't know that is some great show of 
benevolence on the part of the Federal Government that now for the 
first time you will actually be allowed to contact a lawyer if you are 
served with a national security letter. So I appreciate that. But this 
is about much more than that simple fact.
  Judicial review is important. But to have a meaningful judicial 
review you have to have at least a threshold, that the recipient of a 
NSL may actually be able to achieve. I suggest that the showing of 
oppressive or abusive behavior by the Federal Government, the showing 
of bad faith, is simply too high a threshold to make that judicial 
review process meaningful.
  Finally, I come back to the suggestion that if this bill fails on 
cloture, we will not have a bill, and portions of the PATRIOT Act and 
the lone wolf provision will expire. I do not take that to mean that 
the Senator from Pennsylvania will not support a 3-month extension. I 
hope and I believe that he would in such an event. I hope and I believe 
that the House would support such an extension of the expiring 
provisions because having them remain in place on a short term basis of 
3 months or 6 months, is much more important than having these 
provisions expire.
  If those who do not agree with my opposition to cloture on the 
conference report really think they will have no bill, then obviously 
their arguments that the PATRIOT Act is a very important piece of 
legislation don't have credibility.
  I yield the floor.
  Mr. SPECTER. Mr. President, when the Senator from Hew Hampshire talks 
about a high bar for upsetting a national security letter, he overlooks 
the provision that you can quash, if it is unreasonable.
  If the judge finds it is unreasonable, is that too high a bar?
  Mr. SUNUNU. Mr. President, I will address the question and the 
concern. I think the threshold is too high. But I would prefer that 
time be provided to others--there are a number of others on the floor--
who support my position and oppose cloture.
  Mr. SPECTER. On my time, I redirect the question to the Senator from 
New Hampshire who says the bar is too high.
  Is it a high bar to quash a national security letter, if a court 
finds it is unreasonable?
  Mr. SUNUNU. Mr. President, that is not the only basis on which these 
will be reviewed. The national security letter and the gag order 
require showing of bad faith on the part of the Government. I believe 
that standard as written in the conference report will prove to be too 
great of a threshold for individuals or businesses to have any 
reasonable chance of meeting. We have had 30,000 national security 
letters issued. To the best of my knowledge, none of them have been 
overturned. I think we owe the public a clear, reasonable, and 
pragmatic standard in order for those to be overturned. I do not 
believe this conference report includes such a standard.

[[Page S13616]]

  Mr. SPECTER. Mr. President, the Senator from New Hampshire is mixing 
apples and oranges. When he talks about bad faith, he is talking about 
disclosure. When he talks about a motion to quash a national security 
letter for its being unreasonable, it may be quashed on that ground 
alone.
  I am not going to ask the question again. I asked it twice. On 
neither occasion was there an answer that it was too high a bar to 
quash a national security letter if it is unreasonable. I will let my 
colleagues decide that who are voting on this.
  If the court has latitude to quash the national security letter 
because it is unreasonable, this is a fair standard.
  When the Senator from New Hampshire--if I could have his attention 
before he leaves--talks about 30,000 national security letters, I 
already said on the floor that is the Washington Post. But that is not 
accurate. I have invited my colleagues, and I will not ask the Senator 
from New Hampshire if he has sought a classified briefing. But I can't 
tell you what the answer to that is. Although I have asked the 
Department of Justice to release information to show the Washington 
Post statement of 30,000 is out of line and not accurate, I ask my 
colleagues not to vote on this bill based on what they read in the 
Washington Post.

  Where you have a contested issue--and I put this before the Senate on 
Monday--go to the Department of Justice, they will give you a 
classified briefing and tell you what the facts are. Don't vote on this 
bill by what you read in the Washington Post.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, one concern I have is, the Senator from New 
Hampshire is correct, you have an extraordinarily high bar in trying to 
overturn a gag order. It is extraordinarily high and raises in my mind 
some significant first amendment questions.
  As to the 30,000, it is difficult to get an answer to this because 
the Justice Department has been remarkably tightlipped. They have not 
answered questions. Many times in the normal course of oversight they 
would not answer the questions. I don't know how many of my letters 
that have gone down there have been unanswered on these issues. It is 
extremely difficult to get an accurate and complete answer from this 
Department of Justice. That is one of the reasons we are so concerned.
  I might say, the idea that we have to have a classified briefing 
which can't be questioned and is totally in the hands of the Department 
of Justice is one of the things that concerns Americans in the PATRIOT 
Act.
  I yield 1 minute to the distinguished Senator from Wisconsin and 4 
minutes to the distinguished Senator from Oregon.
  Mr. FEINGOLD. Mr. President, the point the chairman was discussing 
with the Senator from New Hampshire, it is the Senator from 
Pennsylvania who is mixing apples and oranges on the NSL requests.
  Let me point out these proceedings where you are supposed to 
challenge an NSL--they are in secret. They are in secret. The person 
challenging the NSL cannot see what the Government is arguing. So it is 
all well and good to say there is review of the NSL, but the challenge 
is not done in a fair proceeding. It is the chairman mixing apples and 
oranges.
  This is the second time the chairman has urged me to get a classified 
briefing. I did and it did not change my view of the underlying points 
being made, whether the Washington Post was completely accurate or not. 
I had that briefing and I tell you I didn't have the same reaction the 
Senator had.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. On my time, what apples and oranges am I mixing, I ask 
Senator Feingold?
  Mr. FEINGOLD. By not acknowledging the difference of the kinds of 
proceedings that take place with regard to an NSL and normal criminal 
proceedings. Those are different kinds of proceedings.
  Mr. SPECTER. Of course they are different.
  Mr. FEINGOLD. That makes a difference on how one regards the ability 
to challenge.
  And the secrecy, the person challenging the NSL cannot even see what 
the Government has. That is very different than a normal criminal 
proceeding.
  Mr. SPECTER. Mr. President, I think the Senator from Wisconsin does 
not know the difference between an apple and an orange. This is not a 
criminal proceeding. If you have a criminal proceeding and a search 
warrant, you go into a court with a motion to quash and you put on 
witnesses, although some of those may be in camera.
  I was a district attorney for 8 years and there are occasions where 
they are in camera. If there are national security issues involved, 
they are consistently in camera on a variety of procedures.
  To say that I am mixing apples and oranges when you compare this to a 
criminal proceeding simply indicates the Senator from Wisconsin does 
not know the definition of an apple.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized for 4 
minutes.
  Mr. WYDEN. I have enormous respect for Chairman Specter and Senator 
Leahy, and will say what is so troubling about this particular period: 
Virtually every single day, almost every day, we see another report 
about the administration trying to skew the bounds between fighting 
terrorism ferociously and protecting the civil liberties of the people 
of our country.
  The front page of the paper today: Secret Pentagon databases are 
kept. Essentially, the administration, when somebody digs it up, finds 
out that all of this is being done--again in secret.
  As I have said many times, the two concepts--security and civil 
liberties--are not mutually exclusive, and when crafting legislation, 
they be approached in tandem. In fact, it is my view that the promotion 
of American security and the protection of Americans' rights and 
freedoms should be mutually reinforcing principles. If one goal is 
abandoned for the other, or one goal carries less importance than the 
other, then a new solution must be found.
  A new solution is certainly needed in this case. The PATRIOT Act 
conference report reflects the wholesale rejection of this two-pronged 
approach and relegates civil liberties to second class status.
  The conference report strips out those Senate provisions that helped 
ensure good Congressional oversight. It limits the ability of law-
abiding Americans to defend themselves from possible PATRIOT Act 
abuses. These changes do not make the PATRIOT Act a more effective tool 
for fighting terrorism; ultimately, they leave Americans more 
vulnerable to violations of privacy and the PATRIOT Act more 
susceptible to abuse.
  I am not going to go through the whole bill, but would like to 
highlight one issue in particular that Oregonians have raised with me--
National Security Letters. National Security Letters authorize the FBI, 
without judicial approval, to obtain Americans' sensitive information.
  Senator Specter has enormous technical legal skills, and I am very 
concerned about the national security letters, as well. I sit on the 
Intelligence Committee. Of course we cannot get into any aspect of what 
goes on in those debates, but it seems to me any way you parse the 
legal language with respect to the conference report and the national 
security letters, it is not balanced. It is, once again, skewed against 
the rights of the individual.
  The Washington Post recently reported that the FBI is using National 
Security Letters to go on fishing expeditions, and the FBI issued at 
least 30,000 NSLs in the last year alone. In these fishing expeditions, 
the FBI reportedly casts a wide net, gathering personal information on 
innocent Americans.
  The Post article describes the experience of George Christian of 
Connecticut. Mr. Christian manages digital records for three dozen 
Connecticut libraries and reportedly received an NSL seeking ``all 
subscriber information, billing information and access logs of any 
person'' who used a specific computer at a certain library branch. The 
FBI reportedly instructed Mr. Christian that he could never talk to 
anyone about the request. In spite of this apparent gag order, he 
decided to challenge the NSL. The court files are

[[Page S13617]]

sealed, but the Post reported that the judge described the basis for 
the NSL as laughably vague.
  With the FBI issuing at least 30,000 NSLs a year, how many other 
Americans like Mr. Christian are out there? How many Americans have had 
personal information turned over to the federal government--who they've 
called, where they've traveled, what they've bought--because someone 
didn't have the time or the money to fight an unreasonable NSL? Who is 
going to have access to all the information the FBI has reportedly 
gathered that may now be in vast government databases? If any one NSL 
can be used to gather information on thousands or even tens of 
thousands of Americans, one can only guess how many Americans have 
already been affected by these fishing expeditions.
  As pointed out in the Post article, the FBI acknowledged from the 
beginning that the NSL was an incredible power that had to be used 
judiciously. As one FBI employee stated in a 2001 memo sent to all 56 
field offices:

       NSLs are powerful investigative tools, in that they can 
     compel the production of substantial amounts of relevant 
     information . . . However, they must be used judiciously.

  Thirty thousand NSLs a year doesn't sound judicious to me. And 30,000 
NSLs a year shouldn't sound judicious to the citizens of Oregon.
  The reporting on NSLs cries out for proper congressional oversight to 
ensure that abuse of NSL powers does not occur. For starters, Americans 
must be armed with the necessary tools to challenge unreasonable 
National Security Letters. But the conference report further inhibits 
the ability of Americans to challenge NSLs.
  More specifically, the conference report requires an NSL recipient 
who consults with an attorney to give the name of the attorney to the 
FBI. Talk about a chilling effect on the right to counsel! I am not 
aware of a provision like this existing in any other area of law.
  For instance, the conference report imposes criminal penalties on an 
NSL recipient who speaks out in violation of an NSL gag order. So even 
if the NSL recipient believes that the letter is unconstitutional and 
that his rights have been violated, he could go to jail for 5 years.
  It is provisions in the conference report like these, which expand 
the federal government's powers and make it more difficult for ordinary 
Americans and Congress to challenge abuses of that power, that give me 
serious pause. And there are not just one or two of them. Look in the 
sections concerning requests for business and library records, roving 
wiretaps, sneak and peak searches, and of course NSLs: there is a 
recurring pattern here and it is very disturbing.

  There are those who claim that there have been no abuses of the 
PATRIOT Act. With all due respect, that is, at best, disingenuous. At 
least two courts have held that the FBI used its NSL power in an 
unconstitutional manner.
  And remember, we are talking about powers that include gag rules--so 
how many others are out there challenging PATRIOT Act activities in 
silence?
  There are those who will say, ``I haven't done anything wrong and I 
have no problem with the government doing what needs to be done to 
fight terror--if they end up with my personal information, but don't 
use it against me, so be it.''
  I wonder how that innocent person would feel if the FBI were watching 
over his shoulder as he surfed the Internet, standing by his side and 
noting whom he calls and when, or standing next to him at the cash 
register as he pays for a anniversary gift for his wife. Because I'll 
bet he wouldn't be ok with this. And while technology has made 
surveillance less obvious, this is exactly what some of the more 
controversial PATRIOT Act powers allow the government to do with only 
the vaguest of reasons and little or no oversight.
  The obligation to demonstrate that the government is not abusing an 
individual's rights should not be on the shoulders of that individual. 
That burden should be squarely on the government's shoulders. The 9-11 
Commission endorsed this notion, recommending that ``the burden of 
proof for retaining a particular governmental power should be on the 
executive . . . .''
  With respect to the overall bill, in our part of the world we are 
terribly concerned about what is going on with methamphetamine. Senator 
Smith and I have worked very closely on a bipartisan basis with our 
colleagues to get a good anti-meth program. The administration comes 
along at the 11th hour and politicizes this meth issue at a time when 
we could pass it with a 100-0 vote.
  As a cosponsor of the Combat Meth Act, I intend to continue to fight 
for the passage of the meth bill but not as a part of this badly flawed 
legislation. And while my decision was made more difficult by the fact 
that legislation addressing the meth crisis was included in the 
conference report, I will be opposing the conference report and 
opposing cloture.
  I want it understood I am anxious to work with my colleagues on a 
bipartisan basis, but given this particular climate and the need to 
constantly keep the teeter-totter balance--fighting terrorism 
aggressively, protecting the civil liberties of our country--it seems 
to me we have to be very judicious with respect to how tools such as 
the national security letter are being used. Any way you cut it, my 
colleagues, I don't see that taking place.
  So more time is needed to make the necessary corrections to the 
conference report to ensure that the PATRIOT Act Reauthorization 
promotes Americans' security and protects their rights and freedoms. 
The Senate should not be coerced into accepting a piece of legislation 
that allows the Federal Government to reach, unchecked, further into 
the personal life of every American, with fewer means of appeal and 
less oversight.
  I therefore urge my colleagues to support the proposal submitted by 
Senator Leahy and Senator Sununu extending the expiring provisions of 
the PATRIOT Act for 3 months. I ask unanimous consent that my statement 
be printed in the Record.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, without getting into methamphetamine, 
where we have accommodated the interests of the Senator from Oregon and 
other Senators by putting them on this bill because it is a measure 
which ought to proceed, let me ask the Senator from Oregon, when he 
complains about the national security letters, I ask whether the 
conference report is not a big step over existing law? National 
security letters have been in existence for decades.
  Mr. WYDEN. National security letters----
  Mr. SPECTER. Mr. President, I have the floor. I have not propounded 
the question yet.
  National security letters have been in existence for decades. While 
we take up the PATRIOT Act, we have used this occasion to add 
protections so that whereas today they are secret, we have explicitly 
provided the right to consult with a lawyer. I don't disagree there 
ought to be that right without providing it explicitly. Somebody ought 
to be able to go to a lawyer, but if they get a national security 
letter today, they are betwixt and between.
  Originally, this legislation had a requirement you had to tell the 
FBI who the lawyer was. The FBI wanted that provision because there are 
some lawyers who have been alleged to be involved in collusion with the 
terrorist organizations. As I said earlier, Senator Leahy objected to 
that and I agreed that you ought to be able to hire your own lawyer. If 
the FBI asks, okay, it is a fair request and you can tell them.
  Then we provided you can quash those national security letters if 
they are unreasonable. If you go to a judge and you say, this is 
unreasonable, now the standard of reasonableness is all over the law, 
what a reasonable man would do. Is that too high of a bar? There is 
judicial review.
  You come to the point of disclosure where you have the issue as to 
whether disclosure will impede the investigation. All through the law, 
there are limitations on disclosure where there is a legitimate law 
enforcement concern about not impeding an investigation. The 
determination as to whether you have a national security issue or are 
impeding diplomatic relations is a pretty touchy subject. We passed a 
Senate bill with a provision that on national security letters--until 
now there has been no challenge possible at all.

[[Page S13618]]

  We put statutory challenges in our Senate bill, and renewing a 
nondisclosure requirement, the certification by the Government--anybody 
in the Government, no delineation as to who--``that disclosure may 
endanger the national security of the U.S. or interfere with diplomatic 
relations shall be treated as conclusive unless the court finds the 
certification was made in bad faith.'' That is a pretty tough standard. 
But that was the Senate bill. Then in the conference report, we kept 
it. The Senator from Oregon was one of 100 Senators who did not object 
to the PATRIOT Act being passed by unanimous consent. But in the 
conference report we said let's do a little more here. Before you have 
a certification, let's make sure it is somebody who has a lot of 
responsibility--the attorney general, Director of the FBI, deputy 
attorney general, et cetera.
  My question to the Senator from Oregon is this: Aren't those at least 
somewhat meritorious in protecting civil liberties? Should we have 
gotten in conference--in a tough conference where Chairman 
Sensenbrenner, head of the House Judiciary Committee, went the extra 
mile--should this bill go down? Should this bill be filibustered 
because of that provision?
  Mr. WYDEN. As my friend knows, I think virtually everything the 
Senator from Pennsylvania does is meritorious. I am troubled, though, 
about where we are with the national security letters. Yes, they 
existed for years, but they were greatly expanded with the PATRIOT Act. 
We know that. I am also concerned as we consider this kind of legal 
language that there will be a chilling effect on the exercise of the 
right to counsel, and I get that again without being able to go into 
the details because of my examination of the issue. I am not going to 
debate the Senator's good-faith efforts; they have always been to try 
to strike a balance. But I am concerned that something that even the 
Government--the executive branch admits this is a tool that should be 
used carefully, at a time, as I said, when you open the morning 
newspaper and every day you see another effort to not strike this 
balance. I think we ought to stay at this national security letter 
issue and deal with concerns raised here with respect to secrecy and 
exercise of right to counsel.
  My good friend from Pennsylvania and I have worked together on so 
many issues, and I want him to know of my desire to do it and my 
respect for his ability to get into some of these technical questions 
in a fashion that is almost unparalleled.
  Mr. SPECTER. I want to call my colleagues' attention to the fact that 
we received a letter from nine Senators yesterday who are opposed to 
the PATRIOT Act. We have a detailed reply which is now being 
circulated. Again, I ask my colleagues to deal with the specifics. 
Anybody who has any concerns about any specific provisions, come to the 
floor and we are prepared to discuss them and see if we can satisfy 
those concerns. Beyond that, I will inform our colleagues as to what 
this bill is all about so there will be as much information as possible 
before the vote.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. Mr. President, I ask how much time remains for the 
distinguished Senator from Pennsylvania and how much time does the 
Senator from Vermont have following the discussion the Senators from 
Pennsylvania and Oregon had?
  The PRESIDING OFFICER. The Senator from Vermont has 24 minutes; the 
Senator from Pennsylvania has 28 minutes.
  Mr. LEAHY. I suggest the absence of a quorum with the time charged 
equally to both sides.
  Mr. SPECTER. I object. I don't want any time lost on the quorum call.
  Mr. LEAHY. I withdraw that request and I yield the floor.
  Mr. SPECTER. Mr. President, we don't have a whole lot of time to 
debate this bill. The Senator from Vermont is right. He and I are due 
at a meeting on asbestos. The Senator and I are due on many important 
meetings. I invite anybody who has a question or a doubt about this 
bill to come to the floor and raise their concerns. If not, I will join 
my colleague in suggesting the absence of a quorum so we can step 
across the hall to a meeting.
  Mr. LEAHY. Mr. President, I see the Senator from Colorado on the 
floor. I understand he wishes to speak on this. I ask the Senator how 
much time would he require?
  Mr. SALAZAR. Approximately 10 minutes.
  Mr. LEAHY. I yield 10 minutes to the Senator from Colorado.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. SALAZAR. Mr. President, I rise today to discuss the PATRIOT Act 
conference report currently before the Senate.
  I start by beginning to make absolutely clear my commitment to law 
enforcement and our fight against terrorism. I served as Attorney 
General for the State of Colorado for 6 years, and I am intimately 
familiar with the specific needs of law enforcement in the fight 
against terrorism and with the paramount importance of police work in 
this area. The peace officer's badge I carried with me was a constant 
reminder of the dedication, performance, and sacrifice that our men and 
women in law enforcement make every day as they work to keep us safe. 
At the end of the day, we will keep America safe when the 800,000 men 
and women who work in local, Federal, and State law enforcement are 
able to do their jobs and have the tools with which to do their jobs.
  Accordingly, I wholeheartedly support extending all of the law 
enforcement powers provided by the USA PATRIOT Act. On September 11, 
2001, the magnitude of the terrorist threat was something that 
galvanized the Nation, and it is imperative that we give law 
enforcement officers the tools they need to investigate and prosecute 
terrorists within our borders so that we never face another attack like 
the ones we saw 4 years ago.
  While I strongly support measures that allow for the greater 
information sharing, it is worth noting that as the 9/11 Commission 
determined, even without the powers of the PATRIOT Act it was well 
within the reach of law enforcement to prevent the September 11 
terrorist attacks. We knew al-Qaida was operating within our borders. 
We knew suspected terrorists were in flight schools in America learning 
how to fly planes. As the Presidential Daily Brief of August 2001 
clearly showed, we knew of the possibility that Osama bin Laden was 
determined to strike our Nation with airplanes.
  We had the information to prevent those attacks. Yet we failed to 
protect the homeland. As my colleagues know, the key goal of the 
PATRIOT Act was to lower the ``wall'' between our law enforcement and 
intelligence agencies that too often prevented the necessary sharing of 
information among them. That wall is real and existing; it is a legal 
wall and a cultural wall that is present even today. That wall was 
recently alluded to in the report card by the 9/11 Commission. That 
wall exists because in our history of intelligence gathering, every 
agency has operated within its own silo.
  There was very ineffective information sharing about the bad guys 
laterally across the Federal Government agencies. That wall also exists 
with the failure to share information between the Federal Government 
and State and local law enforcement.
  We must do more to break down that wall as we move to a more coherent 
and integrated approach to go after the bad guys. To the extent the 
conference report before us breaks down that wall of communication and 
continues to provide the tools to law enforcement to fight the war on 
terror, its provisions are positive, and I support them.
  In addition, there are a number of other provisions in the conference 
report that are not related to the PATRIOT Act that are also deserving 
of the support of the Senate. For example, it contains provisions of 
the Combat Meth Act which I helped introduce at the beginning of this 
session. This legislation would place restrictions on the sale of 
products that contain the primary ingredients in methamphetamine to 
make it harder for criminals to produce the drug in the first place. 
The conference report also contains provisions to strengthen port 
security and combat terrorist financing.
  Without question, the legislation before us contains provisions that 
are worthy of support, but I am disappointed about the bill's failure 
to adequately protect the civil liberties of Americans.

[[Page S13619]]

  Today, December 15, 2005, marks the 214th anniversary of the 
ratification of the Bill of Rights in 1791. Among the freedoms 
enshrined in the Constitution is the fourth amendment's guarantee that 
the right of the people to be secure in their persons, houses, papers, 
and effects against unreasonable searches and seizures shall not be 
violated. Let me state that again because that is what is at stake in 
this debate. The right of the people to be secure in their persons, 
houses, papers, and effects against unreasonable searches and seizures 
shall not be violated.
  It is ironic that we are now considering passing legislation that 
would greatly undermine that principle. Instead, we should take this 
occasion to reflect on the importance of the liberties guaranteed to 
all of us by that document and to understand that we can give law 
enforcement officers the tools they need to fight terrorists without 
sacrificing our constitutional rights and freedoms.
  I have worked very hard with my colleagues to achieve that goal. 
Earlier this year, I joined with five colleagues from both sides of the 
aisle in introducing the SAFE Act. I am proud of the leadership and 
courage shown by Senators Craig, Durbin, Sununu, Feingold, and 
Murkowski. That legislation, the SAFE Act, would have extended all of 
the expiring sections of the PATRIOT Act. It would also have placed 
reasonable limitations on the way those powers are used to protect 
America's fundamental freedoms.
  As the Senate began its work on the process of reauthorizing the 
PATRIOT Act, I continued to work closely with the SAFE Act sponsors to 
incorporate our commonsense proposal into the Senate reauthorization 
bill. Although the legislation reported out of the Senate Judiciary and 
Intelligence Committees was not perfect, it took important steps to 
protect the freedom of innocent Americans and passed the full Senate 
with unanimous support from among the Republican, Democratic, and 
Independent membership of this body.
  That is why my colleagues and I fought so hard to see that the 
conference committee remained true to the Senate-passed bill. 
Unfortunately, when the details of the draft conference report were 
released in the week before Thanksgiving, it became clear that the 
conferees had retreated from the modest civil liberties protections 
included in the Senate bill.
  My colleagues and I renewed our request that the civil liberties 
concerns be addressed. We did not ask for all the provisions of the 
SAFE Act. We did not even ask for all the provisions in the Senate 
legislation. Although we could have easily put this issue behind us now 
if the House had taken up and passed the bill we unanimously adopted in 
this Chamber, we simply asked the conferees to make modest changes to a 
handful of critical provisions. Yet those changes were not made.
  Let me review what some of the remaining concerns are with respect to 
the conference report.
  First, section 215. One of the most controversial provisions of the 
PATRIOT Act is section 215. Section 215 allows the Government to go to 
a secret court to obtain financial, library, medical, travel, and a 
whole host of other kinds of records that fall under the extremely 
vague definition of ``any tangible thing.'' The conference report would 
also impose an automatic permanent gag order preventing the holder of 
those records from revealing information about the request. It would 
not permit the recipient to challenge the gag order.
  To be clear on that point, in order to obtain a search order under 
section 215, all the Government has to do is to go to a secret court, 
the secret FISA court, and claim that the order is relevant to an 
ongoing terrorist investigation, an application that the court has no 
discretion, no authority whatsoever to reject. It simply has to do what 
the Government asks it to do.
  The legal standard of relevance is extremely low. ``Relevant 
evidence'' is a very low threshold that can provide no protection to 
the civil liberties we are trying to protect.

  In contrast, the Senate bill would have restored a clear and specific 
standard of individualized suspicion, meaning that the Government would 
have to show that the records in question are linked to a suspected 
terrorist or an agent of a foreign power. In addition, the Senate bill 
would give the recipient of a FISA order the right to challenge the gag 
order and to receive meaningful judicial review of that order.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SALAZAR. Mr. President, I ask unanimous consent for another 3 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SALAZAR. Mr. President, another controversial provision of the 
PATRIOT Act is section 505, which authorizes the use of national 
security letters. National security letters are requests for certain 
specific categories of information, including financial records, 
business dealings, and telephone and e-mail records.
  Under the conference report, NSLs can be issued without the prior 
approval of a judge and can be authorized by any of several dozen FBI 
field offices. The Washington Post recently reported that the 
Government now issues 30,000 NSLs a year--100 times more than historic 
norms. I respect and honor my friends and the leadership in the Federal 
Bureau of Investigation with whom I have worked for many years, but 
when we start issuing 30,000 NSLs a year, we ought to make sure there 
is some oversight with respect to how those NSLs are issued.
  As with section 215, the conference report does not allow meaningful 
judicial review of an NSL's gag order. Because the Government does not 
need a judge's approval to send an NSL, meaningful judicial review of a 
gag order is a critical safeguard and is simply missing in the 
conference report.
  I wish to finally spend just a second speaking about the sneak-and-
peek searches under section 213. My colleagues and I expressed concern 
about the sneak-and-peek searches where the target of the search is not 
identified or notified for a period of several days or even weeks.
  Prior to the enactment of the PATRIOT Act, law enforcement could 
delay notification of a search warrant in certain limited cases. The 
PATRIOT Act significantly lowered the standard for delayed 
notification, allowing sneak-and-peek searches in any case where 
``immediate notification of the warrant may have an adverse result.'' 
The conference report before us is not much better, as it allows the 
Government to wait up to 30 days to notify the target of a property 
search.
  I believe we can do better, and I believe the proposal which has been 
introduced on a bipartisan basis to allow us an additional 90 days to 
try to work through some of these issues on the PATRIOT Act could, in 
fact, result in the kind of PATRIOT Act that receives a unanimous vote 
of the Senate.
  In my own State, liberal and conservative newspapers have said that 
this Senate has an obligation to protect the constitutional liberties 
of Americans.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SALAZAR. I ask unanimous consent for 30 additional seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SALAZAR. The Rocky Mountain News said last month that we in the 
Senate should hang tough because fundamental freedoms of America are at 
stake.
  The Colorado Springs Gazette, a very conservative newspaper, said 
those insisting on added protections for civil liberties and stricter 
sunset provisions are doing the right thing by holding their ground.
  The Denver Post editorial said: We support a bipartisan effort to 
block final passage unless safeguards are reinstated.
  I believe the Senate can do better in helping us move forward in the 
fight against terror, giving law enforcement the tools they need in 
that ongoing battle, and at the same time assuring that we are 
protecting the cherished freedoms of our democracy enshrined in our 
Constitution and the Bill of Rights.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, with all due respect, I think we do not 
need any newspaper editorials to tell the Senate to hang tough or to 
tell Senators to hang tough or to tell this Senator to hang tough. I 
think we have hung tough, mighty tough.

[[Page S13620]]

  Let me take up the specifics about what the Senator from Colorado has 
had to say.
  Mr. FEINGOLD. Mr. President, we have many speakers on our side, and I 
just want to be clear that this time is charged to the Senator from 
Pennsylvania.
  The PRESIDING OFFICER. The Senator is in control of the time.
  Mr. SPECTER. There is no doubt about that. I sought recognition, and 
it is on my time. There is no doubt about that at all.
  Mr. FEINGOLD. I just wanted to clarify that.
  Mr. SPECTER. The interruption of the Senator from Wisconsin can be 
charged on his time.
  As to section 215, the Senator from Colorado is wrong. The conference 
report provides that there may be a ``challenge to the legality of the 
order by filing a petition with the FISA court,'' and that petition can 
take up the gag order.
  When he talks about the standards, there are the three criteria from 
the Senate bill, but there is an additional provision that the judge, 
judicial review on a terrorism investigation which has been authorized 
by going through quite a number of hurdles, those records are important 
for a terrorism investigation. If the Senator is talking about library 
records, it has to be the Director of the FBI or the Assistant 
Director, or the number-three man. They cannot be delegated. So there 
are really safeguards and protections for civil liberties in this bill. 
We hung tough and we got them.
  When the Senator from Colorado talks about the conference report on 
delayed notice, so-called sneak and peak, not much better, I will let 
my colleagues evaluate whether the Senator from Colorado is right or 
the Senator from Pennsylvania is right. Currently, under the PATRIOT 
Act, the only limitation is a reasonable period of time, which can be 
anything. The Senate bill came in at 7 days. The House bill came in at 
180 days. The Fourth Circuit has said that 45 days is a reasonable 
period of time.
  Bear in mind that these delayed notice warrants are not issued unless 
the impartial judicial official standing between the citizen and the 
law enforcement officer, the judicial official, is satisfied that there 
ought to be a delay. If there is a customary search-and-seizure warrant 
which goes out, the target knows they have been served, but these are 
surreptitious. These are secret. There has to be a showing that the 
investigation will be harmed. When we put in 7 days, we were not 
unaware that there would be negotiations and that the House came in at 
180 days. I think we had a pretty good result from the Senate's point 
of view to concede 23 days and the House conceded 150 days.
  So if the Senator from Colorado thinks that is ``not much better,'' I 
will rely on my colleagues to decide whether the Senate bill is not a 
whole lot better as a result of what we did.
  When he talks about the national security letters, I made this point 
several times on the floor, but perhaps the Senator from Colorado has 
not heard it because he continues to assert the Washington Post story. 
There have been briefings available, as I said earlier, and the Senator 
from Colorado can get one from the Department of Justice, that 30,000 
figure is wrong. I cannot say what it is because it is classified, and 
I have asked the Department of Justice to make it an unclassified 
disclosure, which they have not done so far. I ask the Senator from 
Colorado, and I ask all of my colleagues, not to vote on this bill 
based on what they read in the Washington Post. If they have some 
concerns, come to the floor and we will find time to listen to their 
concerns and we will see if we can satisfy them, and certainly in that 
process inform other Senators as to what this bill is all about.
  I think we have come to grips with the concerns which the Senator 
from Colorado has articulated.
  Mr. SALAZAR. Mr. President----
  Mr. SPECTER. I have the floor, Mr. President--on the national 
security letters. We have put in safeguards. The national security 
letter can be quashed if it is unreasonable. The conference report has 
set the Senate standard for the conclusive presumption, and I think we 
have been cognizant of civil rights.
  I take second place to no one--I know the Senator from Colorado's 
record as an attorney general and a protector of civil rights, and I 
have great respect for it, but I take second place to no one in my 
tenure in the Senate on protecting civil rights, and I think this bill 
does that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. SALAZAR. Mr. President, a point of inquiry: May I respond to the 
Senator from Pennsylvania on his time for 30 seconds?
  Mr. SPECTER. No, the Senator may not respond on my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania does not yield.
  Mr. SPECTER. Thirty seconds?
  The PRESIDING OFFICER. Thirty seconds.
  Mr. SPECTER. Go ahead, on my time.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. SALAZAR. Mr. President, first and foremost, I want to say that I 
have the utmost respect for the Senator from Pennsylvania as a leader 
and mentor of all of us. Second, I disagree with his conclusions with 
respect to the protections for civil liberties because when there is a 
secret court and the leadership of the FBI essentially in charge of 
giving those protections to these kinds of provisions in the PATRIOT 
Act, it is not going to the point where we need to go to protect our 
civil liberties.
  I yield the floor and I thank my good friend and colleague from 
Pennsylvania.
  Mr. SPECTER. One more point before I yield to the Senator from 
Arizona. It is a secret court because they are discussing national 
security matters. National security matters are always classified. We 
are briefed in Senate 407 all the time. We go to a secret room where 
there are classified materials. There is nothing unusual about that.
  I yield 10 minutes to the Senator from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I do want to agree with one thing my 
colleague from Colorado said just a moment ago. He said the fundamental 
freedoms of Americans are at stake. I agree with that. But they are not 
threatened by the U.S. Government. They are threatened by foreign 
terrorists who struck us on September 11 and who have continued to 
threaten us since that time.
  There was much criticism of our Government as a result of our failure 
to prevent that attack on September 11, particularly when the 9/11 
Commission reported that there were some things that could have been 
done that just might at least theoretically have prevented that attack. 
We quickly acted in the Congress to put in place the legal mechanisms 
to enable our law enforcement and intelligence people to begin 
protecting the American people. What we found was that there were a lot 
of loopholes in our laws that needed to be filled in order to give our 
law enforcement and intelligence people the weapons, the tools, the 
support that they needed to protect us.
  We did that with the PATRIOT Act. However, because of concerns that 
possibly some of these authorities could be abused, we said we are 
going to sunset them so that we have to come back and reconsider what 
we did, and that is what we are all about here now.
  As a result of significant debate in this body and in the other body, 
we each passed different versions of a reauthorization of the PATRIOT 
Act, and since then accommodated those differences in what is called a 
conference committee. We are now considering that compromise between 
the House and Senate versions in a compromised conference committee 
report. Those of us who helped to write the original PATRIOT Act and 
were very anxious to get these authorities in place believe that in 
some respects we have gone too far. We have leaned over too far 
backward to those who are so afraid that somehow somebody's freedom 
might be stepped on in this country, that they have not enabled us to 
fight the terrorists that are the real enemy. They have not given us 
the tools we need. But in order to get the conference committee 
resolved and get the bill on the floor here, we agreed to sign the 
report and have this debate.

  Now we find there are people on the other side who insist on having 
it all

[[Page S13621]]

their way. Every single thing they want has to occur or else they are 
going to filibuster the bill. What does that mean? It means they are 
going to talk it to death, refuse to allow us to have a final vote on 
it, with the result that the PATRIOT Act is gone on December 31.
  They say: We will agree to extend it for a little while. That is no 
answer. We have a process. We have gone through the process. It has 
been very difficult. It has been long. It has been hard. We have gotten 
a product that is the result of compromise. That is the way we work in 
the Senate and in the House and in this country, and that compromise 
has to be voted on, yes or no. If you don't like it, then vote no.
  Here is what I suggest. We are at war. We have to be responsible and 
serious about what we do. I will say it right now, if the filibuster 
results in this act ceasing to exist, if there is no more PATRIOT Act 
next year and an attack occurs in this country and it could have been 
prevented by the provisions of the PATRIOT Act, then everyone who votes 
to support a filibuster will have to answer for that attack.
  There were some things we could have done in the past. I would like 
to refer to what they are because, from the 9/11 Commission, we know 
that some of the things we put in the PATRIOT Act might prevent an 
attack in the future, some of the very things that are being criticized 
by those who are suggesting they might filibuster. Let me give just a 
little bit of the detail.
  We now know that one of the things that stood in the way of a 
successful investigation was the previous law, gaps in our terrorism 
law that prevented the FBI from doing certain things--in particular, to 
exploit leads that related to al-Qaida.
  We came tantalizingly close to substantially disrupting or even 
stopping this terrorist plot. The investigation to which I refer 
involved a person by the name of Khalid Al Mihdhar. He was one of the 
eventual suicide hijackers of American Airlines flight 77, which 
crashed into the Pentagon, killing 58 passengers and crew and 125 
people on the ground. An account of the pre-September 11 investigation 
of Mihdhar is provided in the 9/11 Commission's staff statement No. 10. 
Here is what that statement says:

       During the summer of 2001 a CIA agent asked an FBI official 
     * * * to review all of the materials from an Al Qaeda meeting 
     in Kuala Lumpur, Malaysia one more time. * * * The FBI 
     official began her work on July 24, of 2001. That day she 
     found the cable reporting that Khalid Al Mihdhar had a visa 
     to the United States. A week later she found the cable 
     reporting that Mihdhar's visa application--what was later 
     discovered to be his first application--listed New York as 
     his destination. * * * The FBI official grasped the 
     significance of this information.
       The FBI official and an FBI analyst working the case 
     promptly met with an INS representative at FBI Headquarters. 
     On August 22 INS told them that Mihdhar had entered the 
     United States on January 15, 2000, and again on July 4, 2001. 
     * * * The FBI agents decided that if Mihdhar was in the 
     United States, he should be found.

  At this point, the investigation of Khalid Al Mihdhar came up against 
the infamous legal ``wall'' that separated criminal and intelligence 
investigations at the time. That is a wall, by the way, which will be 
re-erected if this filibuster succeeds and the PATRIOT Act falls. That 
wall, everyone agrees, had to come down. The Joint Inquiry Report of 
the House and Senate Intelligence Committees describes what happened 
next:

       Even in late August 2001, when the CIA told the FBI, State, 
     INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and 
     two other ``Bin Laden-related individuals'' were in the 
     United States, FBI Headquarters refused to accede to the New 
     York field office recommendation that a criminal 
     investigation be opened, which might allow greater resources 
     to be dedicated to the search for the future hijackers. * * * 
     FBI attorneys took the position that criminal investigators 
     ``cannot'' be involved and that criminal information 
     discovered in the intelligence case would be ``passed over 
     the wall'' according to proper procedures. An agent in the 
     FBI's New York field office responded by e-mail, saying: 
     ``Whatever has happened to this, someday someone will die 
     and, wall or not, the public will not understand why we were 
     not more effective in throwing every resource we had at 
     certain problems.''

  You would think we would have learned the lesson of 9/11. If the 
filibuster succeeds, those who vote for the filibuster will be voting 
to allow this wall to be reerected. The very wall that we tore down 
with the PATRIOT Act so the FBI and CIA could talk to each other, the 
very wall that might have, had we torn it down before 9/11--that wall 
might have prevented us from discovering two of the key people involved 
in 9/11, and had we stopped them from getting on the airplane, we might 
have stopped at least one of the attacks of 9/11.

       Whatever has happened to this, someday, someone will die, 
     and wall or not, the public will not understand why we were 
     not more effective in throwing every resource we had at 
     certain problems.

  Unfortunately, this grim prediction turned out to be true; almost 
3,000 people died.
  We then acted to make sure it would never happen again. Now there are 
people threatening to filibuster the PATRIOT Act, which will go out of 
existence on December 31 if the filibuster succeeds, and people will 
wonder how it is that this wall was resurrected after the experience we 
had.
  Here is what the 9/11 Commission said about the effect of the wall 
between the criminal and intelligence investigations with respect to 
the investigation of Khalid al Mihdhar:

       Many witnesses have suggested that even if Mihdhar had been 
     found, there was nothing the agents could have done except to 
     follow him onto the planes. We believe this is incorrect. 
     Both Hazmi and Mihdhar have been held for immigration 
     violations or as material witnesses in the Cole bombing case. 
     Investigation or interrogation of these individuals, and 
     their travel and financial activities, also may have yielded 
     evidence of connections to other participants in the 9/11 
     plot. In any case, the opportunity did not arise.

  As we know, Mr. President, the PATRIOT Act dismantled this legal wall 
between intelligence and criminal investigations. It was enacted too 
late to prevent 9/11, but it will prevent future acts of terrorism 
unless we allow it to expire.
  I would like to talk about another key investigation prior to 
September 11. I will probably have to get just about 5 more minutes of 
time. Before I do, let me make just this one point about those who say 
we do not have to let it expire, we could just extend it for another 3 
months or so.
  Why do they say that? Because they think they can get some more 
concessions. The House of Representatives is done making concessions, 
and I agree with them. I would say the concessions already made could 
go too far, could hamper our law enforcement capability of catching 
terrorists or infiltrating their organizations or finding evidence to 
implicate them in crimes. Nonetheless, that time is passed. There is no 
more conference committee to go back to. We have reached all of the 
compromises, and not everybody can get everything they want. I 
certainly have not gotten everything I want. But I understand that at a 
certain point, the people of the United States have to pull together 
and act in a unified way to ensure that we have a law in place that 
will help us fight this war on terrorism.
  I think it is extraordinarily selfish to say we have to have our way 
or no way, let the Act expire. Oh, we will maybe let it go for another 
3 months. What kind of uncertainty does that create? Three months, 
using one set of procedures and not knowing what the law is going to 
be.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. KYL. I ask the Senator from Pennsylvania how much more time he 
can yield me?
  Mr. SPECTER. We have only 10 minutes left. Senator Cornyn wants to 
speak. I need to engage Senator Craig in a dialog.
  Mr. KYL. I will not ask for any more time, then, except to say at a 
later time I will tell the story of Zacarias Moussaoui and how the 
PATRIOT Act helps to resolve the situation we couldn't resolve with 
Zacarias Moussaoui, either, and had we done that, he may not have been 
involved in the 9/11 activities.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. How much time do I have remaining, Mr. President?
  The PRESIDING OFFICER. The Senator from Vermont has 8 minutes 22 
seconds. The Senator from Pennsylvania has 9\1/2\ minutes.
  Mr. LEAHY. I yield my remaining time to the Senator from Idaho.
  Mr. CRAIG. I thank my colleague from Vermont for yielding. I am glad 
I

[[Page S13622]]

have been able to follow my colleague, my friend and associate from 
Arizona, and to say to him: Senator, you are wrong.
  You are just flat wrong--that this Senate or this Congress is going 
to allow the PATRIOT Act to expire.
  I find it fascinating, if not almost humorous, that I am on the floor 
defending the position of Jon Kyl and my chairman, Arlen Specter, who 
brought a bill to the floor which brought unanimity to the Senate; that 
they accepted, that the House rejected, in part; and that they are now 
saying we should not revisit it again. It is a phenomenally unique 
responsibility.
  Folks, when we are dealing with civil liberties, you don't compromise 
them, and you don't let the bad guys win.
  The Senate of the United States and the Congress and this President 
will not let the bad guys win. But we are sure not going to compromise 
civil liberties.
  How do you do it? The check and balance that has always been within 
the law is what we strive for today.
  When I began to become involved in the PATRIOT Act, looking at its 
reauthorization, I knew it would be an uphill battle. I knew it would 
be an uphill battle because Americans have grown to be frightened. But 
now they have grown to be emboldened when they recognized that some of 
their freedoms were and are at risk.
  I began to work, as did some of my colleagues. And out of that, 
knowing it must be reauthorized, we produced a piece of legislation.
  I must say Chairman Specter took us seriously. I am pleased he did. 
The Judiciary Committee took us seriously. I am glad they did. Out of 
that commitment came a work product of which all of us were very proud. 
And it passed the Senate unanimously.
  I think those charges are simply untrue, that somehow we wanted to 
destroy the act or that we wanted it to expire and go away. I know the 
rest of the country doesn't believe us anymore in that sense because 
they now understand the importance of the balance we are striving to 
create.
  I also find it very unique that we are talking about and focusing on 
a very small part of the PATRIOT Act itself. It is not sweeping change 
we are proposing. It is not sweeping change we hope to achieve by 
opposing cloture and asking the House to reconsider the work we have 
done. Is it an impossible task and is it a leap too far? Not at all.
  Look at the House vote yesterday. Two hundred and twenty four voted 
for the conference report we are now considering. That isn't the 
important vote, fellow Senators. The important vote was the 202 who 
agreed that we ought to agree with the Senate on what they had 
accomplished. That is simply 13 short of a majority in the House. 
Rarely--and we know that, those of us who have been around a while--do 
you ever get the House to agree with the Senate as much as the House 
agrees with the Senate on this issue.
  I am very confident, if the Senate revision of the PATRIOT Act and 
the reauthorization provision we provided, which passed the Senate 
unanimously, had been on the floor of the House yesterday and that had 
been the document being voted on, the vote would not have been 224; it 
would have been 240 or 250 or possibly 300. It is very possible that 
they would have been able to achieve that kind of broader support. Why? 
For all of my colleagues who have joined the debate today, and this is 
why I think the issues we are talking about are so important.
  If we had wanted to kill the PATRIOT Act, we would not have gone as 
far as we have to work with the chairman and the ranking member of the 
Judiciary Committee to fine-tune it and to make sure those safeguards 
are in place.
  Americans clearly understand we are at war. That does not need to be 
restated on the floor of this Senate. Blood has been spilled on our 
soil, and we know that.
  We recognize the very important task at hand, and the authority we 
have given our security organizations and our intelligence and law 
enforcement organizations in this area.
  But it is incumbent upon me, and it is incumbent upon all of us, to 
make sure that we don't gray or in some way make it easier for free 
citizens to have their rights violated, either by accident or if by a 
rogue investigator who found he or she could use the privilege granted 
here to somehow leverage a situation of a free citizen. And that is not 
what we are about.
  There is so much to be said here, and my time is very limited.
  I ask unanimous consent that the ``Dear Colleague'' letter that many 
of us sent out yesterday to our colleagues that breaks down part by 
part what we have done be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                Washington, DC, December 14, 2005.
       Dear Colleague: Prior to the Thanksgiving recess, several 
     Senators expressed strong opposition to the draft Patriot Act 
     reauthorization conference report that was circulated by the 
     conferees. We were gratified that Congress did not attempt to 
     rush through a flawed conference report at that time, and we 
     hoped the conferees would make significant improvements to 
     the conference report before we returned to session this 
     month.
       We write to express our grave disappointment that the 
     conference committee has made so few changes to the 
     conference report since then. And now, in the last week of 
     the session, the Senate is being asked to reauthorize the 
     Patriot Act without adequate opportunity for debate. If the 
     conference report comes to the Senate in the same form that 
     it was filed in the House last week, we will oppose cloture 
     on the conference report. We urge you to do the same.
       As you know, the Senate version of the bill, passed by 
     unanimous consent in July, was itself a compromise that 
     resulted from intense negotiations by Senators from all sides 
     of the partisan and ideological divides. That bill did not 
     contain many Patriot Act reforms that we support, but it took 
     important steps to protect the freedoms of innocent Americans 
     while also ensuring that the government has the power it 
     needs to investigate potential terrorists and terrorist 
     activity. Although the conference report contains some 
     positive provisions, it unfortunately still retreats too far 
     from the bipartisan consensus reached in the Senate. It fails 
     to make some vitally important reforms and in some areas 
     actually makes the law worse.
       Last week, Chairman Specter circulated a Dear Colleague 
     suggesting the conference report as drafted addresses the 
     concerns raised about potential civil liberties abuses. We 
     credit Chairman Specter for improving the conference report. 
     However, the most important substantive reforms from the 
     Senate bill were excluded from the conference report. The 
     original cosponors of the SAFE Act (Senators Craig, Durbin, 
     Sununu, Feingold, Murkowski, Salazar) identified several 
     items before Thanksgiving as problematic and indicated they 
     would not support the conference report unless additional 
     changes were made in those areas. Those issues were not 
     adequately addressed. They include the following:
       The conference report would allow the government to obtain 
     library, medical and gun records and other sensitive personal 
     information under Section 215 of the Patriot Act on a mere 
     showing that those records are relevant to an authorized 
     intelligence investigation. As business groups like the U.S. 
     Chamber of Commerce have argued, this would allow government 
     fishing expeditions targeting innocent Americans. We believe 
     the government should be required to convince a judge that 
     the records they are seeking have some connection to a 
     suspected terrorist or spy, as the three-part standard in the 
     Senate bill would mandate.
       Some conferees argue that the language in the conference 
     report would permit the government to use the ``relevance'' 
     standard only in limited, extraordinary circumstances, and 
     that the Senate bill's three-part standard would continue to 
     apply in most circumstances. To the contrary, the conference 
     report never requires the government to demonstrate that the 
     individual whose records are sought is connected to a 
     terrorist or spy; rather, it permits the ``relevance'' 
     standard to be used in every case.
       It has also been asserted that the government should not be 
     required to abide by the three-part Senate standard because 
     the Department of Justice demonstrated in a classified 
     setting that ``circumstances may exist in which an individual 
     may not be known to a foreign power or be a recognized 
     terrorist but may nevertheless be crucial to an authorized 
     terrorism investigation.'' We are convinced, however, that 
     the three-part standard provides the necessary flexibility in 
     such circumstances. Indeed, the government need only show 
     that the records they seek are relevant to the activities of 
     a suspected terrorist or spy, a very low burden to meet, but 
     one that will protect innocent Americans from unnecessary 
     surveillance and ensure that government scrutiny is based on 
     individualized suspicion, a fundamental principle of our 
     legal system.
       Unlike the Senate bill, the conference report does not 
     permit the recipient of a Section 215 order to challenge its 
     automatic, permanent gag order. Courts have held that similar 
     restrictions violate the First Amendment. While some have 
     asserted that the FISA court's review of a government 
     application for a Section 215 order is equivalent to judicial 
     review of the accompanying gag order, the FISA court is not 
     permitted to make an individualized decision about

[[Page S13623]]

     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; the gag order is automatic and 
     permanent in every case. The recipient of a Section 215 order 
     is entitled to, but does not receive, meaningful judicial 
     review of the gag order.
       The conference report does not sunset the National Security 
     Letter (NSL) authority. In light of recent revelations about 
     possible abuses of NSLs, which were reported after the Senate 
     passed its reauthorization bill, the NSL provision should 
     sunset no more than four years so that Congress wi1l have an 
     opportunity to review the use of this power.
       The conference report does not permit meaningful judicial 
     review an NSL's order. It requires the court to accept as 
     conclusive the government's assertion that a gag order should 
     not be lifted, unless the court determines the government is 
     acting in bad faith. As a result, the judicial review 
     provisions do not create a meaningful right to review that 
     comports with due process.
       The conference report does not retain the Senate 
     protections for ``sneak and peek'' search warrants, as 
     Chairman Specter's letter suggests. The conference report 
     requires the government to notify the target of a ``sneak and 
     peek'' search within 30 days after the search, rather than 
     within seven days as the Senate bill provides and as pre-
     Patriot Act judicial decisions required. That seven-day 
     period was the safeguard included in the Senate sneak and 
     peek provision. The conference should include a presumption 
     that notice will be provided within a significantly shorter 
     period in order to better protect Fourth Amendment rights. 
     The availability of additional 90-day extensions means that a 
     shorter initial time frame will ensure timely judicial 
     oversight of this highly intrusive technique but not create 
     undue hardship on the government.
       While the issues discussed above are the core concerns 
     about the conference report that the original cosponsors SAFE 
     Act asked to be modified, they are not the only problems that 
     we see with the conference report. There are a number of 
     other areas where we believe the conference report falls 
     short.


              ``Library Records'' Provision (Section 215)

       Unlike the Senate bill, the conference report requires a 
     person who receives a Section 215 order to notify the FBI if 
     he consults with an attorney and to identify the attorney to 
     the FBI. This will have a significant chilling effect on the 
     right to counsel. There is no such requirement any other area 
     of law.
       The conference report would give the government unilateral 
     authority to keep all its evidence secret from a recipient 
     who is challenging a 215 order, regardless of whether the 
     evidence is classified. This will make it very difficult for 
     the recipient of a Section 215 order to obtain meaningful 
     judicial review that comports with due process.
       Under the conference report, the target of a Section 215 
     order never receives notice that the government has obtained 
     his sensitive personal information and never has an 
     opportunity to challenge the use of this information in a 
     trial or other proceeding. All other FISA authorities 
     (wiretaps, physical searches, pen registers, and trap and 
     trace devices) require such notice and opportunity to 
     challenge.


                national security letters (section 505)

       The conference report would allow the government to issue 
     NSLs for certain types of sensitive personal information 
     simply by certifying that the information is sought for a 
     terrorism or espionage investigation. This would allow 
     government fishing expeditions targeting innocent Americans. 
     As business groups have argued, the government should be 
     required to certify that the person whose records are sought 
     has some connection to a suspected terrorist or spy.
       Unlike the Senate bill, the conference report requires a 
     person who receives an NSL to notify the FBI if he consults 
     with an attorney and to identify the attorney to the FBI. 
     This will have a significant chilling effect on the right to 
     counsel. There is no such requirement in any other area of 
     law.
       Unlike the Senate bill, the conference report for the first 
     time imposes criminal penalties on an NSL recipient who 
     speaks out in violation of an NSL gag order, even if the NSL 
     recipient believes his rights have been violated.
       The conference report for the first time gives the 
     government the power to go to court to enforce an NSL, 
     effectively converting an NSL into an administrative 
     subpoena. An NSL recipient could now potentially be held in 
     contempt of court and subjected to serious criminal 
     penalties. The government has not demonstrated a need for 
     NSLs to be court enforceable and has not given any examples 
     of individuals failing to comply with NSLs.
       The conference report would give the govemment unilateral 
     authority to keep all its evidence secret from a recipient is 
     challenging an NSL, regardless of whether the evidence is 
     classified. This wi1l make it very difficult for an NSL 
     recipient to obtain meaningful judicial review that comports 
     with due process.
       As with Section 215, the conference report fails to require 
     notice to the target of an NSL if the government seeks to use 
     the records obtained from the NSL in a subsequent proceeding, 
     and fails to give the target an opportunity to challenge the 
     use of those records.


               ``Sneak and Peek'' Searches (Section 213)

       The conference report does not eliminate the catch-all 
     provision that allows sneak and peek searches any time that 
     notice to a subject would ``seriously jeopardize'' an 
     investigation. This exception could arguably apply in almost 
     every case.


                     Roving Wiretaps (Section 206)

       The conference report does not include meaningful checks on 
     ``John Doe'' roving wiretaps, a sweeping power never 
     authorized in any context by Congress before the Patriot Act. 
     A John Doe roving wiretap does not identify the person or the 
     phone to be wiretapped. Unlike the Senate bill, the 
     conference report does not require that a roving wiretap 
     include sufficient information to describe the specific 
     person to be wiretapped with particularity.
       The conference report does not require the government to 
     determine whether the target of a roving intelligence wiretap 
     is present before beginning surveillance. An ascertainment 
     requirement, as has long applied to roving criminal wiretaps, 
     is needed to protect innocent Americans from unnecessary 
     surveillance, especially when a public phone or computer is 
     wiretapped.


     pen registers and trap and trace devices (section 214 and 216)

       The conference report retains the Patriot Act's expansion 
     of the pen/trap authority to electronic communications, 
     including e-mail and Internet. In light of the vast amount of 
     sensitive electronic information that the government can now 
     access with pen/traps, modest safeguards should be added to 
     the pen/trap power to protect innocent Americans, but the 
     conference report does not do so.


              domestic terrorism definition (section 802)

       The conference report retains the Patriot Act's overboard 
     definition of domestic terrorism, which could include acts of 
     civil disobedience by political organizations. While civic 
     disobedience is and should be illegal, it is not necessarily 
     terrorism. This could have a significant chilling effect on 
     legitimate political activity that is protected by the first 
     Amendment.
       It is not too late to remedy the problems with the 
     conference report and pass a reauthorization package that we 
     can all support. The House could take up and pass the bill 
     the Senate adopted by unanimous consent in July, or, if the 
     additional modest but critical improvements to the conference 
     report that the original cosponsors of the SAFE Act laid out 
     priot to Thanksgiving are made, we believe the conference 
     report can easily and quickly pass both the House and the 
     Senate this month.
       We appreciate that since Thanksgiving, the conferees agreed 
     to include four-year sunsets of three controversial 
     provisions rather than seven-year sunsets. But we should not 
     just make permanent or, in the case three provisions, extend 
     for another four years the most controversial provisions of 
     the Patriot Act. The sunsets this year provide our best 
     opportunity to make the meaningful changes to the Patriot Act 
     that the American public has demanded. Now is the time to fix 
     these provisions.
       We urge you to join us in opposing cloture on the 
     conference report, and in supporting our call for the 
     conferees to make additional improvements. We still have the 
     opportunity to pass a good reauthorization bill this year. 
     But to do so, we must stop this conference report, which 
     falls short of the meaningful reforms that need to be made. 
     We must ensure that when we do reauthorize the Patriot Act, 
     we do it right. We still can--and must--make sure that our 
     laws give law enforcement agents the tools they need while 
     providing safeguards to protect the constitutional rights of 
     all Americans.
           Sincerely,
         Larry E. Craig, John E. Sununu, Lisa Murkowski, Chuck 
           Hagel, Barack Obama, Dick Durbin, Russ Feingold, Ken 
           Salazar, John F. Kerry.

  Mr. CRAIG. Mr. President, let me, for a moment, touch on something I 
think is important. This issue has spread beyond these walls and beyond 
this building.
  The Idaho Legislature, my legislature in Idaho, by a resolution, a 
house joint memorial and a senate joint memorial to the Congress, asked 
that we support the SAFE Act. The SAFE Act was the passage of 
amendments that the Senate Judiciary Committee incorporated within our 
version of the reauthorization of the PATRIOT Act that passed this body 
unanimously.
  From the beginning, those of us who have concerns about PATRIOT have 
had an uphill battle. Practically before the ink was dry on our bill--
and certainly well before any committee had reviewed it--we faced a 
veto recommendation. Before they even read our reform proposals, some 
of PATRIOT's defenders charged us with wanting to repeal the law and do 
away with all the tools it provided law enforcement to protect our 
country against terrorism.
  Those charges were not true when we began, and they're not true 
today. We are not trying to undo PATRIOT. If some Senators still 
believe that, well, the rest of the country does not.

[[Page S13624]]

  Most of PATRIOT isn't even at issue today--just a small part of the 
law is up for renewal. Of that small part, we are only focusing on a 
few controversial and very important provisions. And even for those few 
provisions in the small part of the law up for renewal, we are asking 
for modest checks and balances, not repeal. And we have even been 
flexible about what shape those reforms should take. We introduced the 
SAFE Act, offering one way to ``fix'' what we saw as problems, but in 
the end, we accepted a Senate Judiciary Committee bill that took a 
couple of different approaches.
  Here is an interesting reaction: When we are dealing with 
constitutional freedoms, just a little can make all the difference. 
Some are saying that we are asking for so little, we should just drop 
it altogether. Our point is that it would take very little to close the 
gap and provide the assurances we are seeking. Our ask is very do-able. 
The conference on this bill was squeezed into the very end of the year; 
changes were being made in the conference agreement even up to the day 
of its filing. We believe a limited timeframe would allow further 
discussion and an opportunity to get beyond whatever political issues 
are in the way. Some of us have even introduced legislation that would 
extend the expiring provisions of PATRIOT for 3 months, for this 
purpose.
  Furthermore, it's worth emphasizing that our concerns are not about 
insignificant or technical issues--they relate to what happens when 
innocent Americans come within the sphere of surveillance in 
antiterrorism investigations.
  Regardless of what Americans think about the PATRIOT Act's 
effectiveness, they also care about preserving their freedom within the 
fight against terrorism.
  Let me read the resolution passed by the Idaho State Legislature 
earlier this year on the subject:

  A Joint Memorial to the Senate and House of Representatives of the 
     United States in Congress Assembled, and to the Congressional 
   Delegation Representing the State of Idaho in the Congress of the 
                             United States

       We, your Memorialists, the House of Representatives and the 
     Senate of the State of Idaho assembled in the First Regular 
     Session of the Fifty-eighth Idaho Legislature, do hereby 
     respectfully represent that:
       Whereas, citizens of the state of Idaho strongly believe 
     that basic civil liberties must be preserved and protected, 
     even as we seek to guard against terrorist and other threats 
     to the national security; and
       Whereas, there are some principles of our democracy which 
     are so fundamental to the rights of citizenship that they 
     must be preserved to guard the very liberties we seek to 
     protect; and
       Whereas, legislation known as the SAFE Act has been 
     introduced in the Congress of the United States to adopt 
     amendments to the Patriot Act which would address some of the 
     most problematic provisions of the Act; and
       Whereas, the SAFE Act amends the Patriot Act to modify the 
     provision regarding the roving wiretaps to require that the 
     identity of the target be given and that the suspect be 
     present during the time when surveillance is conducted; and
       Whereas, the SAFE Act revises provisions governing search 
     warrants to limit the circumstances when the delay of notice 
     may be exercised and to require reports to the Congress when 
     delays of notice are used; and
       Whereas, the SAFE Act requires specific and articulable 
     facts be given before business records are subject to 
     investigation by the Federal Bureau of Investigation; and
       Whereas, the SAFE Act provides that libraries shall not be 
     treated as communication providers subject to providing 
     information and transaction record of the library patrons; 
     and
       Whereas, it is appropriate that the Legislature of the 
     State of Idaho, on behalf of the citizens of Idaho, express 
     support of the efforts of Senator Larry Craig to adopt the 
     SAFE Act, and encourage the full support of the Idaho 
     congressional delegation.
       Now, therefore, be it Resolved by the members of the first 
     Regular Session of the Fifty-eighth Idaho Legislature, the 
     House of Representatives and the Senate concurring therein. 
     That the Idaho Legislature endorses the efforts to amend the 
     Patriot Act to assure that it works well to protect our 
     security but that it does not unnecessarily compromise 
     essential liberties of the citizens of the United States. We 
     urge the congressional delegation representing the State of 
     Idaho in the Congress of the United States to support 
     legislation introduced by Senator Larry Craig, known as the 
     SAFE Act.

  This is just one of hundreds of such statements issued by states, 
cities, and communities across the Nation on this subject.
  I have actually heard colleagues saying that because there have been 
no publicly reported abuses of PATRIOT Act powers, there is no 
justification for changing the law. Since when do we have to wait for 
the Constitution to be breached to take action? Since when do the 
American people have to justify demanding checks and balances that will 
make sure there can be no such abuses? Since when did it become the 
American people's burden of proof to support protecting their civil 
liberties?
  I thought the government worked for the people, and not the other way 
around
  We are not the ones who should have to be justifying a call for 
checks and balances. It's up to the government to prove those checks 
and balances are not workable and not in the best interests of the 
Nation.
  Now, we have heard a lot about the civil liberties protections that 
have been included in this conference report. I stand second to none in 
giving credit to our Judiciary Committee chairman, Arlen Specter, for 
achieving these reforms. I well know the opposition he was up against, 
and I am very pleased he was able to persuade conferees--as he 
persuaded some in this body--that we can have both: protection of the 
privacy and civil liberties of innocent citizens, and aggressive 
fighting against terrorism.
  It is worth noting that even those of our colleagues who opposed our 
original SAFE Act proposals ended up supporting the Senate bill that 
contained civil liberties reforms. Today these same colleagues are 
praising the conference report's provisions along those lines--and my 
message to them is: why not go just a little further toward the 
Senate's version in some of these areas? You voted for them once 
before--why not again?
  That's how much confidence I have in Chairman Specter--that with this 
additional expression of support from the Senate, he will be able to 
make a few last--but important--improvements.
  The other body voted yesterday on the PATRIOT Act conference report, 
and a motion to reject that report and instead accept the entire 
Senate-passed version was narrowly defeated, 202-224. This is a 
remarkable vote. The U.S. House is a body of 435 Members. 215 is the 
majority, they were 13 short of passing the Senate bill, the very 
reform I am asking for today. But those of us seeking more time for 
negotiations aren't asking that the entire conference report be 
defeated; we aren't asking for the House to swallow the entire Senate 
bill. Instead, we have identified a few areas where we believe 
improvements could and should be made, and I think the House vote shows 
these changes would be welcomed by a substantial number in that body.
  To those of my colleagues who are telling us to ``quit while we're 
ahead,'' I say: where would we be if they had stopped at the First 
Amendment of the bill of Rights? Should they have quit while they were 
ahead, and forgotten about those other nine amendments?
  These are important issues. let's allow a little more time for the 
process to work, and respond to the concerns that our citizens have 
expressed.
  1. The changes we are seeking:
  The conference report that we are voting on would allow the 
government to obtain library, medical and gun records and other 
sensitive personal information under Section 215 of the PATRIOT Act on 
a mere showing that those records are relevant to an authorized 
intelligence investigation. As business groups like the U.S. Chamber of 
Commerce have argued, this would allow government fishing expeditions 
targeting innocent Americans. We believe the government should be 
required to convince a judge that the records they are seeking have 
some connection to a suspected terrorist or spy, as the three-part 
standard in the Senate bill would mandate.
  Some conferees argue that the language in the conference report would 
permit the government to use the ``relevance'' standard only in 
limited, extraordinary circumstances, and that the Senate bill's three-
part standard would continue to apply in most circumstances. To the 
contrary, the conference report never requires the government to 
demonstrate that the individual whose records are sought is connected 
to a terrorist or spy; rather, it permits the ``relevance'' standard to 
be used in every case.
  It has also been asserted that the government should not be required 
to

[[Page S13625]]

abide by the three-part Senate standard because the Department of 
Justice demonstrated in a classified setting that ``circumstances may 
exist in which an individual may not be known to a foreign power or be 
a recognized terrorist but may nevertheless be crucial to an authorized 
terrorism investigation.'' We are convinced, however, that the three-
part standard provides the necessary flexibility in such circumstances. 
Indeed, the government need only show that the records they seek are 
relevant to the activities of a suspected terrorist or spy, a very low 
burden to meet, but one that will protect innocent Americans from 
unnecessary surveillance and ensure that government scrutiny is based 
on individualized suspicion, a fundamental principle of our legal 
system.
  Unlike the Senate bill, the conference report does not permit the 
recipient of a Section 215 order to challenge its automatic, permanent 
gag order. Courts have held that similar restrictions violate the First 
Amendment. While some have asserted that the FISA court's review of a 
government application for a Section 215 order is equivalent to 
judicial review of the accompanying gag order, the FISA court is not 
permitted 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; the gag order is 
automatic and permanent in every case. The recipient of a Section 215 
order is entitled, but does not receive, meaningful judicial review of 
the gag order.
  The conference report does not sunset the National Security Letter, 
NSL, authority. In light of recent revelations about possible abuses of 
NSLs, which were reported after the Senate passed its reauthorization 
bill, the NSL provision should sunset in no more than four years so 
that Congress will have an opportunity to review the use of this power.
  The conference report does not permit meaningful judicial review of 
an NSL's gag order. It requires the court to accept as conclusive the 
government's assertion that a gag order should not be lifted, unless 
the court determines the government is acting in bad faith. As a 
result, the judicial review provisions do not create a meaningful right 
to review that comports with due process.
  The conference report does not retain the Senate protections for 
``sneak and peek'' search warrants, as Chairman Specter's letter 
suggests. The conference report requires the government to notify the 
target of a ``sneak and peek'' search within 30 days after the search, 
rather than within 7 days, as the Senate bill provides and as pre-
PATRIOT Act judicial decisions required. That 7-day period was the key 
safeguard included in the Senate sneak and peek provision. The 
conference report should include a presumption that notice will be 
provided within a significantly shorter period in order to better 
protect Fourth Amendment rights. The availability of additional 90-day 
extensions means that a shorter initial time frame will ensure timely 
judicial oversight of this highly intrusive technique but not create 
undue hardship on the government.
  Unlike the Senate bill, the conference report requires a person who 
receives an NSL to notify the FBI if he consults with an attorney and 
to identify the attorney to the FBI. This will have a significant 
chilling effect on the right to counsel. There is no such requirement 
in any other area of law.
  Unlike the Senate bill, the conference report for the first time 
imposes criminal penalties on an NSL recipient who speaks out in 
violation of an NSL gag order, even if the NSL recipient believes his 
rights have been violated.
  The conference report for the first time gives the government the 
power to go to court to enforce an NSL, effectively converting an NSL 
into an administrative subpoena. An NSL recipient could now potentially 
be held in contempt of court and subjected to serious criminal 
penalties. The government has not demonstrated a need for NSLs to be 
court enforceable and has not given any examples of individuals failing 
to comply with NSLs.
  The conference report would give the government unilateral authority 
to keep all its evidence secret from a recipient who is challenging an 
NSL, regardless of whether the evidence is classified. This will make 
it very difficult for an NSL recipient to obtain meaningful judicial 
review that comports with due process.
  As with Section 215, the conference report fails to require notice to 
the target of an NSL if the government seeks to use the records 
obtained from the NSL in a subsequent proceeding, and fails to give the 
target an opportunity to challenge the use of those records.
  The conference report does not eliminate the catch-all provision that 
allows sneak and peek searches any time that notice to a subject would 
``seriously jeopardize'' an investigation. This exception could 
arguably apply in almost every case.
  Many of my colleagues say the PATRIOT Act is just giving law 
enforcement powers in terrorism investigation what they already have in 
drug investigation.
  Well not here. The conference report does not include meaningful 
checks on ``John Doe'' roving wiretaps, a sweeping power never 
authorized in any context by Congress before the PATRIOT Act. A John 
Doe roving wiretap does not identify the person or the phone to be 
wiretapped. Unlike the Senate bill, the conference report does not 
require that a roving wiretap include sufficient information to 
describe the specific person to be wiretapped with particularity.
  The conference report does not require the government to determine 
whether the target of a roving intelligence wiretap is present before 
beginning surveillance. An ascertainment requirement, as has long 
applied to roving criminal wiretaps, is needed to protect innocent 
Americans from unnecessary surveillance, especially when a public phone 
or computer is wiretapped. Yes, new technology is challenging but 
should not allow our privacy rights to be swept away.
  The conference report retains the PATRIOT Act's expansion of the pen/
trap authority to electronic communications, including e-mail and 
Internet. In light of the vast amount of sensitive electronic 
information that the government can now access with pen/traps, modest 
safeguards should be added to the pen/trap power to protect innocent 
Americans, but the conference report does not do so.
  The conference report retains the PATRIOT Act's overbroad definition 
of domestic terrorism, which could include acts of civil disobedience 
by political organizations. While civil disobedience is and should be 
illegal, it is not necessarily terrorism. This could have a significant 
chilling effect on legitimate political activity that is protected by 
the First Amendment.
  While the issues discussed above are the core concerns about the 
conference report that the original cosponsors of the SAFE Act asked to 
be modified, they are not the only problems that we see with the 
conference report. There are a number of other areas where we believe 
the conference report falls short.
  Unlike the Senate bill, the conference report requires a person who 
receives a Section 215 order to notify the FBI if he consults with an 
attorney and to identify the attorney to the FBI. This will have a 
significant chilling effect on the right to counsel. There is no such 
requirement in any other area of law.
  The conference report would give the government unilateral authority 
to keep all its evidence secret from a recipient who is challenging a 
215 order, regardless of whether the evidence is classified. This will 
make it very difficult for the recipient of a Section 215 order to 
obtain meaningful judicial review that comports with due process.
  Under the conference report, the target of a Section 215 order never 
receives notice that the government has obtained his sensitive personal 
information and never has an opportunity to challenge the use of this 
information in a trial or other proceeding. All other FISA 
authorities--wiretaps, physical searches, pen registers, and trap and 
trace devices--require such notice and opportunity to challenge.
  The conference report would allow the government to issue NSLs for 
certain types of sensitive personal information simply by certifying 
that the information is sought for a terrorism or espionage 
investigation. This would allow government fishing expeditions

[[Page S13626]]

targeting innocent Americans. As business groups have argued, the 
government should be required to certify that the person whose records 
are sought has some connection to a suspected terrorist or spy.
  Again, what is important is to understand and plead with our 
colleagues--that how you negotiate is through power and leverage, not 
to give up and walk away. I am not going to suggest that the chairman 
did that at all. He and I dialogued many times over the course of the 
last 2 weeks as to what we might do to gain greater position, to gain 
the Senate position with the House.
  My compliments to him for the successes that are in the conference 
report because there are some. But my frustration is that what we did 
in the Senate in this very important instance has not been adhered to. 
Those safeguards have not been put in place to the extent that we had 
asked. And I believe it is reasonable and right to say: No, let us live 
for 3 more months with the current law while we attempt to achieve even 
greater protection for the private citizens of this country but most 
importantly recognize that the law enforcement community needs that 
time to ask permission and to show that they have very real reason to 
believe that somebody is involved.
  I think it has been a very excellent debate which has gone on on the 
floor of the Senate. But there is a reality check. That reality check 
is a vote on the conference report, and I ask my colleagues to vote 
against cloture so that we can reenter this debate one more time with 
the House to make sure we get it right so that the first amendment and 
the fourth amendment are not, in some way, in jeopardy.
  I yield the floor.
  Mr. SPECTER. Mr. President, I have worked very closely with the 
distinguished Senator from Idaho, as he noted, on this matter, with 
lots of discussions and lots of dialog. He and I worked together on the 
Ruby Ridge investigation, as Senator Leahy was involved on the other 
side of the aisle. That was a high watermark of congressional oversight 
protection of the individual rights.
  I have a long history with Senator Craig and agree with him that you 
don't compromise on civil liberties. What you do with civil liberties 
is you protect them.
  But I submit to my colleague from Idaho that we have protected.
  I ask him: He starts off with the delayed notice. The pejorative term 
is ``sneak and peek.'' Delayed notice is when the law enforcement 
official shows the judge, the impartial arbiter between the citizen and 
law enforcement, that there are reasons to have delayed notice.
  Ordinarily, you have a search-and-seizure warrant. The target knows 
that right away.
  The current bill provides for ``reasonable period of time,'' which 
could mean anything. Some have gone for enormous periods of time. The 
House came in at 180 days and the Senate came in at 7 days. We were not 
unaware in picking 7 days we were starting a negotiating track. We were 
not going to have our entire way. The Fourth Circuit said 45 days is 
presumptively reasonable and we ended up with 30.

  I ask my colleague from Idaho, is it a compromise of civil liberties 
to have a 30-day notice period where you change the existing law from 
what is reasonable--which means anything--and the House comes down 150 
days and we go up 30 days; is that a compromise?
  Mr. CRAIG. I know my chairman thinks that is a success. First, we 
have broken and entered a private citizen's home without telling them. 
Does it take 30 days for law enforcement to determine that what they 
have found is so valuable that they cannot tell the citizen they have 
broken into their home? Why not 7 days? And then go to a judge and 
prove your worth with the evidence you have established by that 
``break-in''--because that is what you have done. My home is my 
sanctuary. We have said, yes, we are going to let you break and enter, 
sneak and peek, but we are going to make sure it is very limited.
  So I don't view 30 days as a compromise. Seven days. You were right 
to begin with. You are wrong now.
  Mr. SPECTER. You cannot take all my time.
  I will ask another question but may make the argument----
  Mr. CRAIG. If the Senator will yield, I will be kinder.
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SPECTER. No, no.
  Mr. CRAIG. All right.
  Mr. SPECTER. All of this effort to get the floor and I will yield 
right away? Absolutely not.
  The point of the time is not to show what they have gotten is 
valuable. The time is in order to enable them to conduct an 
investigation. They got the order initially because they showed a 
judge, an impartial magistrate, that there was a reason to think if the 
target knew, it would impede the investigation.
  I will let my 98 colleagues evaluate whether that is a compromise on 
civil liberties.
  The letter which the Senator from Idaho refers to, which was filed 
yesterday and printed in the Record, I have already put the reply into 
the Record, which we circulated today. In that letter, the assertion 
made that the Foreign Intelligence Surveillance Court is not permitted 
to make an individualized decision about whether to impose a gag order 
when it issues a section 215 order is incorrect. That is not right. The 
statute provides there may be a petition to have the court review the 
215 order and the Foreign Intelligence Surveillance Court has the 
authority at that point to say there will be no gag order.
  When the Senator from Idaho puts in his letter that they want a 
sunset on the national security letter, I point out to him the PATRIOT 
Act does not establish the national security letter. That has been in 
existence for decades.
  Mr. CRAIG. It is broadening of the application, not the 
establishment.
  Mr. SPECTER. Regular order, Mr. President.
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SPECTER. The PATRIOT Act does not establish the national security 
letter. But the PATRIOT Act was used as a vehicle for extending civil 
rights, which the Senator from Idaho is concerned about. He is a civil 
libertarian and so am I. When he introduced the so-called SAFE Act to 
cut back on the PATRIOT Act, and he came to me and asked, Would you 
cosponsor it, I immediately said yes. But when we structured the 
PATRIOT Act, we took a look at the national security letters and we 
said, this is an occasion where we ought to rein in the national 
security letter. And we did so by saying the recipient did not have to 
keep quiet--which you have to do under existing law--but you could go 
to a lawyer. I don't think you ought to have to have legislative 
authority to go to a lawyer. But we made no bones about it. We were not 
going to leave that to chance, and we said you can go to a lawyer. Then 
that lawyer could go to court and quash the national security letter if 
it is unreasonable.
  The standard of ``reasonable'' is all over the law. It is what a 
reasonable person would do. It controls tort law, accidents, reasonable 
personal negligence, it controls antitrust law, reasonable restraints. 
The court has plenary authority, full authority to quash the national 
security letter if it is unreasonable.
  Now, when you come to the point about disclosure, you are dealing 
with some pretty tough stuff. You are dealing with national security. 
The Senate bill that went through without objection by anyone, 
including the Senator from Idaho, has a provision that there is a 
conclusive presumption if the Government certifies that it will impede 
national security or harm foreign relations. But in the conference 
report, in part because Senator Craig was vigilant in talking to us 
about the conference report, we said, that is not enough. It ought to 
be on the Government, some law enforcement officer in the field. We put 
in the requirement it had to be the Attorney General or Deputy Attorney 
General, head of the FBI, or Assistant Attorney General--all positions 
which are confirmed by the Senate, so they are ranking positions.
  We saw to it that the national security letter was reined in. We also 
saw to it that the wiretaps were reined in. Then we had the big 
argument about the sunset. I almost had a feeling in one long telephone 
conversation with Senator Craig about 10 days ago that if we got a 4-
year sunset, which was a

[[Page S13627]]

golden prize--the House wanted 10 years and the Senate had 4 years; the 
House wanted the compromise on 7, halfway between; we said no, we are 
not going to do that. This was a matter of great importance to many 
Senators, especially to Senator Craig. So we can review all of this and 
we can have oversight. I almost thought if we got 4 years, we would get 
Senator Craig. He is nodding in the negative.
  Mr. CRAIG. It was third on my list.
  Mr. SPECTER. We did not get Senator Craig.
  Mr. President, when the six Senators wrote a letter with a lot of 
concerns, we responded with a seven-page letter. When yesterday we 
received a letter with nine Senators, we responded with an eight-page 
letter which the staff has worked on. We have had extraordinary staff 
working on all sides. This goes for my staff, this goes for Senator 
Leahy's staff. The Judiciary Committee has not had any time off. We had 
an August recess for the Senate but not for the Senate Judiciary 
Committee.
  The PRESIDING OFFICER. The time of the Senator is expired.
  Mr. SPECTER. In that event, I stop.

                          ____________________