[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.

                          ____________________