[Congressional Record Volume 151, Number 162 (Friday, December 16, 2005)]
[Senate]
[Pages S13690-S13692]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            THE PATRIOT ACT

  Mr. REID. Mr. President, in approximately an hour and a half, there 
will be a vote on the motion to invoke cloture on the PATRIOT Act 
conference report. Rather than terminate debate on this flawed piece of 
legislation, the Senate should work harder to achieve a strong, 
bipartisan PATRIOT Act that

[[Page S13691]]

strengthens national security while protecting the privacy of innocent 
Americans.
  Earlier this year, after negotiations that went late into the night, 
the Senate Judiciary Committee unanimously approved a bill to 
reauthorize and improve the PATRIOT Act. Soon after, the full Senate 
passed this bill by unanimous consent. Every Senator, Democrat and 
Republican, approved this reauthorization of the PATRIOT Act. Every 
Democrat and every Republican in the Senate--every one of us--is firmly 
on record in support of giving law enforcement the appropriate tools to 
fight terrorism.
  We all know the House of Representatives is in shambles. Leadership 
is in a state of disarray.
  The spirit of bipartisanship that led to passage of the Senate bill, 
because of the problems in the House of Representatives, did not 
prevail in the conference. Not long after the House appointed 
conferees, Democratic negotiators were shut out of discussions. In 
fact, Senator Leahy's staff was directed by the chairman of the 
Judiciary Committee in the House to leave the room.
  The final bill was written by Republican-only conferees working 
behind closed doors with Justice Department lawyers. The result was an 
imbalanced conference report that departed significantly from the 
bipartisan Senate bill.
  Chairman Specter, to his credit, joined other conferees in refusing 
to sign the conference report. Over the next few weeks, he and Senator 
Leahy worked hard to improve it and succeeded in eliminating some of 
the worst provisions.
  I commend and applaud the efforts of the chairman and our ranking 
member to work to improve this conference report.
  But I am sorry to say, in my view--and in the view of many of my 
colleagues on both sides of the aisle--the conference report still does 
not contain enough checks on the expanded powers granted to the 
Government by the PATRIOT Act. It simply is not acceptable.
  I supported the passage of the original PATRIOT Act in 2001. This was 
enacted in the days immediately following the vicious attacks on 
September 11, 2001. I do not regret my vote. Much of the original act 
consisted of noncontroversial efforts to update and strengthen basic 
law enforcement authorities. More than 90 percent of the 2001 act is 
already part of permanent law and will not expire at the end of this 
year.
  We are currently considering renewal of these provisions that were 
considered so expansive and so vulnerable to abuse that Congress wisely 
decided to subject them to 4-year sunsets, meaning that after 4 years 
they had to be renewed or they would fall. The authors of the act 
wanted Congress to reassess these in a more deliberative manner with 
the benefit of experience.
  The act of 2001 came, as I mentioned, when the country was feeling 
the devastation of the terrorist attacks of 2001. I, frankly, don't 
think we took enough time at that time to do it the right way. That is 
why a number of us demanded the sunset provisions.
  Now, more than 4 years later, we are presented with the opportunity 
to do it right.
  While the conference report before us makes certain improvements over 
the original PATRIOT Act, it still does not strike the right balance.
  We can provide the Government with the powers it needs to investigate 
potential terrorists and terrorist activity and at the same time 
protect the freedom of innocent Americans.
  Liberty and security are not contradictory. Additional congressional 
and judicial oversight of the Government's surveillance and 
investigative authorities need not hamper the Government's ability to 
fight terrorism.
  I say to the Presiding Officer, someone whose heritage is from the 
island of Cuba, where there is very little liberty and very little 
security, we are in the United States of America. We are not a 
dictatorship like Cuba. We can have liberty and we can have security.
  As I said, additional congressional and judicial oversight of the 
Government's surveillance and investigative authorities need not hamper 
the Government's ability to fight terrorism. These checks are needed to 
ensure that the Government does not overreach or violate the privacy of 
ordinary American citizens who have nothing to do with terrorism.
  Is there any reason to be concerned? Yes. There is a reason to be 
concerned.
  For example, the need for such checks is based on a number of things, 
not the least of which is the story that ran in the Washington Post in 
early November of this year after the Senate passed the bill. The story 
reported that the FBI issues more than 30,000 national security letters 
a year--30,000. These letters go to businesses. And they say: I want 
you to tell everything you know about Ron Weich, Gary Myrick, Russ 
Feingold, Herb Kohl. It doesn't matter who it is. And that person--the 
names I have mentioned--does not know that they have had this request 
to give all information about them or any information about them. The 
person who has been requested to give the information can't tell them. 
It is against the law to tell them.
  These national security letters are issued by FBI agents without any 
judicial supervision. The third party recipients of these orders, such 
as banks, phone companies, and Internet service providers, are 
prohibited, as I have said, from telling anyone that they have been 
served. The customers whose records are seized will never know that the 
FBI has gathered their personal information.
  For example, the article described an incident at the end of 2003 in 
which the Department of Homeland Security compiled information of 
hundreds of thousands of New Year's visitors to Las Vegas. They 
obtained the records of everyone who had rented a hotel room, car, or 
storage unit, and every airplane passenger who landed in the city of 
Las Vegas. They obtained records, how much they paid for their hotel 
room, did they order any X-rated movies. I don't know what other 
information they got.
  When Las Vegas businesses objected to this effort to gather 
unprecedented amounts of information on their customers, the FBI 
responded by serving them with national security letters. According to 
one law enforcement source quoted in this piece, agents encouraged 
voluntary disclosure of information by threatening to demand further 
records, further profiles from the casinos about their guests.
  Perhaps worst of all, what happened in Las Vegas did not stay in Las 
Vegas, but, instead, stayed in Federal databanks. It is still in the 
Federal databanks. None of the information gathered in that 
investigation has been purged to this date. The rental and travel 
records of hundreds of thousands of innocent Americans remain in 
Government hands.
  Las Vegas first; was there any place else? Did they go to the New 
Year's Eve celebration at Times Square in New York? Did they go to the 
warm beaches of Florida snooping and spying?
  I have three major concerns about this conference report. First, I am 
disturbed the conference report provides neither meaningful judicial 
review nor a sunset provision for those provisions regarding national 
security letters. Instead of protections, this conference report 
effectively turns these NSLs, as they are referred to, national 
security letters, into administrative subpoenas. For the first time, 
the report authorizes the Government to seek a court order to compel 
compliance with one of these letters. Recipients who do not comply 
could be found in contempt, fined, or even sent to jail.
  A third-party recipient, such as one of the Las Vegas hotels, could 
theoretically challenge an NSL in court in order to protect the privacy 
of its customers, but the conference report makes it unlikely such 
judicial review will matter because the court is not required to find 
any individualized suspicion that the records sought are connected to a 
terrorist.
  Second, I have significant concerns about section 215, often referred 
to as the library provision. Under a key provision in the Senate 
compromise reached this summer, the Government would have been required 
to show that the records sought under this provision had some 
connection to a suspected terrorist or spy. But under the conference 
report we have now before the Senate, the Government may demand 
sensitive personal information of innocent Americans merely upon a 
showing that the records are ``relevant'' to a terrorism investigation.
  For example, the Government may be broadly suspicious of individuals 
in a

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particular immigrant community. Under section 215, the Government could 
go to the library in that community and demand the records of library 
cardholders to see which individuals are reading what. What about 
someone reading scientific texts, maybe even Smithsonian or one of the 
magazines people read dealing with automobiles, or Scientific American? 
Are these people considered terrorist threats?
  A court challenge to a section 215 order must be conducted in secret. 
At the Government's request, the recipient is not permitted to review 
Government submissions regardless of whether the Government has any 
national security concerns in that particular case. Moreover, the 
conference report does not permit any challenge to the automatic 
permanent gag order under section 215.
  Third, the conference report contains sections not included in either 
the House or Senate bills limiting the right of habeas corpus in cases 
that have nothing to do with terrorism. These provisions have not been 
passed by the Senate or the House. One provision would eliminate 
judicial review of whether a State has an effective system in providing 
competent lawyers in death penalty cases. That does not belong in this. 
Such a far-reaching change should not be inserted in an unrelated 
conference report.
  There are many other problems with the conference report that leaves 
largely in place a definition of domestic terrorism so broad it could 
be read to cover acts of civil disobedience. For example, a few days 
ago we had members of the clergy who, believing that the budget before 
the House and the Senate is immoral, were protesting, saying it is a 
bad budget. There were a number of arrests. Are these individuals to be 
deemed domestic terrorists? They could be under the conference report.
  The conference report still contains a catchall provision that 
authorizes a government to conduct a sneak-and-peek search upon a 
showing that notice would seriously jeopardize an investigation. Sneak 
and peek, what does it mean? It means they can go into your home, look 
around, see if there is anything that is incriminating, and then come 
back out and seek permission to use what they have obtained all without 
telling you--which I believe is un-American.

  As many critics of the bill have observed, a good prosecutor could 
fit about any search under this provision. I say ``good'' prosecutor 
any prosecutor. He wouldn't even have to be good.
  The Justice Department reported 90 percent of the searches that have 
taken place under sneak and peek under this act have nothing to do with 
terrorism. For these and other reasons, this conference report does not 
meet the American standard. It certainly should not merit Senate 
approval.
  Fortunately, we do not face the choice of accepting this conference 
report or allowing the 16 PATRIOT Act provisions to expire. I am a 
cosponsor of S. 2082, introduced by Senator Sununu, to enact a 3-month 
extension of the expiring PATRIOT Act so we can take the time we need 
to produce a good bipartisan bill that will have the confidence of the 
American people.
  The majority leader said previously he won't accept such a 3-month 
extension. I hope, if we fail in invoking cloture, he would reconsider 
this. I am confident in the end that it would be so much better that we 
extend this for 3 months to see if we can reach an acceptable goal.
  Based on that, I ask unanimous consent the cloture vote be vitiated, 
the Judiciary Committee be discharged from further consideration of 
Senator Sununu's bill, S. 2082, the 3-month extension of the PATRIOT 
Act, the Senate proceed to its immediate consideration, the bill be 
read the third time and passed, and the motion to reconsider be laid 
upon the table.
  The PRESIDING OFFICER. Is there an objection?
  Mr. FRIST. Reserving the right to object.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, with regard to the unanimous consent 
request, I need to be clear once again, and I have over the last couple 
of days, that I absolutely oppose a short-term extension of the PATRIOT 
Act. The House of Representatives opposes such an extension and the 
President will not sign such an extension. Extending the PATRIOT Act 
does not go far enough.
  It is time to bring this to a vote this morning. We will see what the 
outcome of that vote is in terms of ending debate. I don't understand 
why opponents of the PATRIOT Act want to extend legislation at this 
juncture that has been fully debated, that has been the product of 
reasonable compromise and in a bipartisan way over the last several 
weeks and months.
  With an extension, if that were to be the case, we would not be able 
to take advantage of the civil liberty safeguards that have been placed 
in the conference report, the additional provisions on protecting our 
ports, on addressing money laundering by terrorists, protection of our 
railways and mass transit systems, fighting methamphetamine abuse.
  The PATRIOT Act represents a historic choice, a clear choice: Should 
we take a step forward or should we take a step backward in keeping 
America safe?
  I object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. REID. Mr. President, I will continue to work to reauthorize the 
PATRIOT Act in a way that gives the Government needed tools to protect 
national security while placing sensible checks on those expanded 
powers.
  I apologize to all my colleagues. I am sorry I took more time than I 
should have. I know there is a lot to do. I appreciate everyone's 
courtesy.
  The PRESIDING OFFICER (Mr. Isakson). Under the previous order, the 
next 15 minutes is supposed to be controlled by the minority leader or 
his designee.
  The Senator from Mississippi.
  Mr. LOTT. Mr. President, I ask unanimous consent that I be able to 
proceed to a piece of legislation before we go to morning business. I 
think we have it agreed to and worked out.
  The PRESIDING OFFICER. Is there objection to proceeding?
  Hearing none, the Senator is recognized.

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