[Congressional Record Volume 151, Number 162 (Friday, December 16, 2005)]
[Senate]
[Pages S13699-S13701]
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. Under the previous order, the Senate will
resume consideration of the conference report to accompany H.R. 3199,
which the clerk will 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 be 60
minutes equally divided between the majority and the minority.
Who yields time? The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, we are approaching a vote to invoke
cloture on the PATRIOT Act which will require 60 Senators to cut off
debate so that we can move ahead to a vote up or down on the act. The
act, as is well known, is set to expire on December 31, 2005. When the
Judiciary Committee, which I chair, approached the reauthorization of
the PATRIOT Act, we tackled it early in the year, and there was a
committee bill, which I sponsored, which had remarkable success getting
a unanimous vote in the committee, which has Senators from both ends of
the political spectrum. It then came to the floor in a manner perhaps
unprecedented: It went through by unanimous consent. There was no
debate. Not a single Senator objected. It was heralded as uniquely well
balanced, from the considerations of providing adequate tools for law
enforcement to continue the fight against terrorism, which is vital for
our national safety, and balanced to protect civil liberties.
Under our system of government, the Senate does not have the last
word. I only wish that were so. We have a bicameral system. Then the
legislation has to receive the signature of the President.
We then went into negotiations with the House of Representatives. I
again thank and commend Chairman Sensenbrenner, who is the chairman of
the Judiciary Committee in the House of Representatives, for working
through some very difficult proceedings to come to a conclusion that a
conference report could be signed and filed and voted upon by both
Houses.
The House of Representatives has supported the conference report with
a 77-vote majority--very substantial. Now we have it in the Senate. The
conference report was not signed by Senators when originally presented
on November 18, 2005. I declined to sign it because I wanted to work
through and try to get the joinder of Democrats. It has been my
experience that the close relationship which Senator Leahy and I have
established, working on the Judiciary Committee on a bipartisan basis,
has yielded significant positive results for the committee, for the
Senate, for the Congress, and for the country. We have been able to
work through major legislation this year, passing class action reform,
passing bankruptcy reform, voting out and confirming the Attorney
General very promptly, working through data privacy--a very tough
legislative bill
[[Page S13700]]
voted out of committee; voting out of committee asbestos reform. People
said that could not be done. It is going to be the first item on the
agenda next year.
It was apparent to me that we needed to have a bipartisan approach.
As one Senator said on the floor yesterday in announcing that the
Senator was going to vote against cloture--he had been a cosponsor of
the bill, but in the absence of this bipartisan support there was too
much public confusion. The public cannot understand all of the
intricacies of the PATRIOT Act, and the shorthand signal is, when
Democrats and Republicans agree, there is a modicum of confidence.
Regrettably, we could not get it on this bill.
When the debate started earlier this week, I invited all Members to
come to the floor to state what their concerns were. I called many
Members to reach out to those I knew could use some elaboration and
also discussion for my benefit, and then from the floor repeatedly
urged my colleagues to come to the floor, raise their concerns, let us
have a discussion. Perhaps we can satisfy their concerns. If not, we
can describe the bill and explain it so the people and the Senators
will understand it.
I do not think we have been successful in conveying to the public at
large, and perhaps not even to the Senators, what this bill really
provides. In this morning's paper, one of the most prominent newspapers
in the United States, they described the bill this way:
. . . the bill gives the government far too much power to
issue ``national security letters,'' demanding private
financial, medical and library records, without the
permission or oversight of a judge.
The writer of this editorial does not understand the basic tenets of
the bill. The writer of this editorial is mixing up section 215, which
provides for obtaining records--library records, medical records--with
national security letters. The bill is explicit in giving judicial
review.
At the present time, an agent can go out and, unilaterally, on the
agent's own authority, get library records or medical records. One of
the principal safeguards in the PATRIOT Act, as passed by the Senate
and as maintained by the conference report, has been to interpose the
magistrate, the judge, in between the policeman and the citizen, to see
to it that law enforcement does not overstep its bounds; that
law enforcement could get access on a showing of reason to do so, but
there is judicial supervision there.
One of the other most prominent newspapers in the country published a
story about 30,000 national security letters being issued, which is
false. I cannot tell you what the facts are because it is classified. I
have tried to get the Department of Justice to come forward and say
what the facts are. But repeatedly on the floor of the Senate we heard
this quotation: 30,000 national security letters--which is absolutely
false. I beg my colleagues not to base their votes on what they read in
the newspapers but to get a briefing, find out what the facts are.
Senators can find that out in a classified briefing, but do not rely
upon the assertions in the newspapers or the assertion in today's
editorial, which is just wrong as it describes what the act is.
On the floor of the Senate yesterday there were references to
hometown newspapers saying hang tough.
Newspapers don't vote. Senators vote. Jefferson made one of history's
great statements in saying if he had to choose between government
without newspapers or newspapers without government, he would choose
newspapers without government. We do not have to make that choice. We
have both newspapers and government. And render under Caesar--the
appropriate line. And let us look to the newspapers, let us consider
what they have to say, but when they are wrong, let's not act on wrong
information. Let's not act on wrong information. It is up to Senators
to hang tough. We don't have to take instructions from the newspapers,
as we heard yesterday, urging their United States Senator to hang
tough. They don't vote. We vote.
A big, tough problem here has been to acquaint people with what this
bill does provide. I am confident, if that has occurred sufficiently,
that this bill will be passed.
I have been on the Judiciary Committee during my entire tenure in the
Senate and have demonstrated a strong record to protect civil liberties
on legislation which has come through the committee to the floor and in
the confirmation process. Nobody has a stronger record in this body
than I do. I will take second place to no one. There are many equals
here. Many in this body, I would say all in this body, are concerned
about civil liberties. But there is no mathematical equation where it
can be established, as to the balance between law enforcement and the
balance as to civil liberties. If you take a look at the specifics of
this legislation, that balance has been achieved. It may not be as good
a balance as the Specter-Leahy bill, which passed the Senate
unanimously and without dissenting voice here, but it has balance.
I have already commented about section 215. There is judicial
supervision. And, on national security letters, they were not created
with the PATRIOT Act, but we took the occasion of the PATRIOT Act to
put in safeguards on national security letters, which are in existence.
If the PATRIOT Act goes out of existence, you will not have section 215
to get certain records by law enforcement, but the national security
letters are still there. But we took this occasion to provide for
judicial review.
The recipient may consult a lawyer, who moves to quash the national
security letter if it is unreasonable. It may not be everything that
everybody wants, but in legislation and the art of the possible, you
don't get everything that everybody wants.
Then you have the delayed notice warrants. A delayed notice warrant
means that the judge has examined the situation and has given special
permission that the law enforcement officials do not have to notify the
target when the search and seizure warrant is executed.
Ordinarily, if there is a search and seizure warrant, the law
enforcement officers go to the premise or an office and it is known to
the target, but where there are reasons to keep it secret because the
disclosure would impede an investigation, our laws have permitted for
decades a delayed notice warrant.
Then the concern was, How long should there be before notice is
given? The Senate bill had 7 days, the House bill had 180 days, and we
compromised on 30 days. The Fourth Circuit Court of Appeals said that
presumptively 45 days would be adequate.
The delayed notice requirement is illustrative of the vagaries of how
you have something in perfection. But when the Senate established a 7-
day notice requirement, we knew we were going to meet in a negotiating
session, and I thought 30 days was a tremendous achievement for prompt
notification. The House came down 150 days, from 180 to 30, and we went
up by 23 days.
Then there is the provision of the roving wiretaps which has been
tightened up, as I explained in greater detail yesterday and earlier
this week--twice. There has to be a description of the individual who
has been intercepted, and there has to be a showing, to have a roving
wiretap, that the person is going to resist the wiretap.
Then you have what is perhaps as important as any provision--I
wouldn't say the most important, they are all important, but as
important as any--sunset. The House wanted a 10-year sunset, the Senate
said 4 years is what it ought to be, and the House was insistent on
compromising in between at 7 years, and we held fast at 4 years. It had
been my expectation with good reason to believe that some Democrats
would sign the conference report if it came in at 4 years. It required
assistance from the White House, and the President was personally
involved in the 4-year decision--not to the satisfaction of the House
conferees, but we got that done.
If you take a look at the specifics, if you don't get your facts from
the newspapers but instead get your facts from the Congressional
Record, if you get your facts from reading the statute, I believe a
fair conclusion would be that it is balanced. It is nice to be the
heroes of the editorial pages. It makes great hometown reading. We have
had quite a few comments on the floor of the Senate on the PATRIOT Act
and on other acts citing the editorials and how pervasive, albeit
subtle, that influence is.
[[Page S13701]]
I have only been chairman of the committee for less than a year, but
I have come to see the vicissitudes of leadership. You don't have the
freedom to be the dissenter, to stand up and articulate your own views
and to accept nothing short of what Arlen Specter has done or I am
going to vote no. I have done that a few times when I have had greater
freedom, but if you are the chairman of the committee, you have to
carve out consensus.
In refusing to sign the conference report on November 18, 2005--to
the dissatisfaction of many people--but waiting until December to sign
it, that was an effort to gain more negotiations and to try to satisfy
more people. My job was to get a consensus, was to work through what is
the art of the possible, to get a bill.
The six Senators who opposed the bill issued their press releases not
before the ink was dry on the conference report but before the ink was
finished on the conference report. When I went to the press galleries
on December 8, 2005 to announce the conference report, before I got
there the dissenters had already issued their press releases. They
weren't waiting to see what the conference report had to say. They did
not issue their objections before the ink was dry; they issued their
objections before the ink was finished. And you can do that if you are
a dissenter and if you are an objecter. But if you are the chairman and
you have the obligation to pull the parties together--and when I signed
the report on December 6, 2005 I still couldn't get some members of my
committee to sign the report. They thought it went too far.
The President has taken the position that this conference report goes
as far as he is going to go. I am advised that he issued a statement
earlier today that he will not sign a 3-month extension. The majority
leader said yesterday that he would not bring up a 3-month extension.
There may be ways to get it on the floor in any event. You can't amend
the conference report.
If I am given instructions in my capacity as chairman to go back and
negotiate, I will salute and go back and negotiate and try to work
through whatever circumstances require. But where the President has
said he is not going to sign a 3-month extension, if he means business,
and I think he does, then in voting on cloture and in looking to a
final vote up or down, this body is going to be faced with the
alternative of either accepting the conference report, which is a
balanced bill, or, if not, the PATRIOT Act is going to expire, and the
responsibilities will be on those of us who vote and take positions.
Although we are a considerable distance from 9/11--more than 4
years--terrorism continues to be a problem. This bill gives important
tools to law enforcement in a balanced way. This bill has provisions to
protect subways, seaports, and airports. It is important that we have a
balanced bill, and it is important that we have a bill. There is no
mathematical formula, but this bill is a balanced bill.
How much time remains of my 30 minutes?
The PRESIDING OFFICER. Eight minutes forty seconds.
Mr. SPECTER. I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, before I start, with the distinguished
senior Senator from Pennsylvania in the Chamber, I totally appreciate
what he said about the problems of being the leader on a committee and
having to make the decisions of how you are going to get a bill
through.
I was chairman of the committee when we put through the first PATRIOT
Act. I remember the balancing act we went through at that time and how
difficult it was to get a bill through. And that PATRIOT Act is this
PATRIOT Act. It contains a number of items that I wrote.
I also note that throughout, the chairman and I have kept in very
close contact. We have spoken several times. I have considered during
my 31 years in the Senate that one of the things which has given me the
greatest sense of satisfaction is the relationship the distinguished
chairman and I have in getting things through, and we have. I am
concerned because we have come so close on this.
As Senator Salazar noted, yesterday was the anniversary of the
adoption of the Bill of Rights of the Constitution.
Yesterday we engaged in debate seeking to protect and reserve those
rights under the USA PATRIOT Act. I thank Senators Sununu, Feinstein,
Craig, Wyden, Feingold, Salazar, and Obama for their thoughtful
remarks, their willingness to work in a bipartisan way which, after
all, is the best tradition of the Senate.
Let all Members understand, this is a vital debate. The terrorist
threat to America's security is very real. It is vital we arm the
Government with the tools needed to protect American society and
security.
At the same time, the threat to civil liberties is also very real in
America today. I do read the papers. Today's New York Times reports
that over the past 3 years, under a secret order signed by President
Bush, the Government has been monitoring international telephone calls
and international e-mail messages of people inside the United States--
with no court approval, no checks and balances, one person's signature
and that is it. This warrantless eavesdropping program is not
authorized by the PATRIOT Act, it is not authorized by any act of
Congress, and it is not overseen by any court.
According to the report, it is being conducted under a secret
Presidential order based on secret legal opinions by the same Justice
Department lawyers, the same ones who argued secretly that the
President could order the use of torture.
It is time to have some checks and balances in this country. We are a
democracy. Let's have checks and balances, not secret orders and secret
courts and secret torture.
The debate is not about whether the Government should have the tools
it needs to protect the American people. Of course it should. That is
why, as I say, I coauthored the PATRIOT Act 4 years ago. That is why
the act passed with such broad bipartisan support. When I voted for
that PATRIOT Act, I did not think it was an ideal piece of legislation.
I knew it would need careful oversight, but I was in favor of most of
the PATRIOT Act. I am in favor of most of the PATRIOT Act now. That is
why I voted for the bipartisan Senate bill in July. The distinguished
chairman of the Senate Judiciary Committee got it through our committee
unanimously, with Senators from the right to the left voting for it.
This debate is not whether it should suddenly expire. Of course it
should not. That is why Senators from both parties have offered a bill
to extend it in its present form for 3 months in order to give us time
to either return to the bipartisan compromise we reached, pass the
Senate bill, or reach a new bipartisan compromise.
Our goal is to mend the PATRIOT Act, not to end it. None of us want
it to expire. Those who threaten to let it expire rather than fix it
are playing a dangerous game. This is a debate about reconciling two
shared and fundamental goals--assuring the safety of the American
people and protecting their liberty by a system of checks and balances
that keeps the Government, their Government, our Government,
accountable.
America can do better. And we should. Those goals are not the goals
of any particular party or ideology. They are shared American goals.
How to balance security with liberty and Government accountability
was the most fundamental dilemma with which the Framers of our
Constitution wrestled. How to adjust that balance with the post-
September 11 world is the most fundamental dilemma before this
Congress.
No one should doubt those who vote for cloture on the conference
report care deeply about the liberty of the American people. We all do.
No one should doubt that those who vote against cloture are devoted to
protecting both the security and liberty of the American people. We all
care deeply.
However, let us have a Government of checks and balances. In the long
run, we are more secure. Our liberties are more secure. Frankly, we are
more American in doing that.
The PRESIDING OFFICER. Senator from Nevada.
____________________