[Congressional Record Volume 151, Number 165 (Monday, December 19, 2005)]
[Senate]
[Pages S14001-S14003]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S14001]]
                              PATRIOT ACT

  Mr. KYL. Mr. President, this resumes our discussion of the PATRIOT 
Act, which we were discussing before this little interlude. Since much 
of the attention has been focused on section 215 of the PATRIOT Act, I 
want to discuss that for a little bit.
  The Senator from Illinois, for example, was talking about that just 
before we broke and, specifically, talked about the subject of section 
215, which includes financial records, library records. Incidentally, 
``library'' is never mentioned in the PATRIOT Act. It is just that 
library records are included in the general definition of business 
records. As a result, people have focused on that. So we are going to 
talk about that for just a little bit.
  As he pointed out, the standard for a court to issue a warrant is 
relevance. That is the same standard that is used in all the other 
civil subpoenas. It is a standard that the courts had begun to impose 
since we did not have a standard within the law itself. Given the fact 
that is the standard the courts began to impose--and it is a reasonable 
standard--we amended that into the law. Part of what passed the Senate 
unanimously was a relevance standard. So there is nothing wrong with 
having a relevance standard. I would think those who are weary of the 
application of the PATRIOT Act would agree this was a good addition. It 
is an additional safeguard to have a relevant standard.

  What exactly is section 215? That is what I would like to address. 
What it allows is for the FBI to seek an order from the Foreign 
Intelligence Surveillance Act Court for the production of tangible 
things--that is the definition--including books, records, papers, 
documents, and other items for an investigation to obtain foreign 
intelligence information. That is the key. You are before the Foreign 
Intelligence Surveillance Act Court, and you are asking for information 
that pertains to an investigation of foreign intelligence information. 
That is further defined in the act as information relating to foreign 
espionage, foreign sabotage or international terrorism.
  It is impossible to get from the court--talking about getting an 
order from a judge--anything that isn't relevant to foreign espionage, 
foreign sabotage or international terrorism. All of this concern about 
wanting to find out what kind of books you checked out from the library 
is simply wrong. Anybody who talks about it in those terms and knows 
what I have said cannot be serious about objecting to section 215 of 
the PATRIOT Act.
  Let's put it in context. There are 335 administrative subpoenas 
authorized for our Government. For example, if you are suspected of 
Medicare fraud, the Department of Health and Human Services has to 
issue an administrative subpoena to get information relating to whether 
you might be guilty of Medicare fraud, such as your business records or 
somebody else's business records that would perhaps go to proving that 
case. Or perhaps bank fraud, you could get the bank records that might 
pertain to that. In none of these other 335 cases is it necessary to go 
to a court first. There is only one exception. Under the PATRIOT Act, 
you are required to go to the FISA Court in order to get a subpoena 
with respect to terrorism. One would think that given the seriousness 
of terrorism and sometimes the emergency nature of it, it would be 
easier to get a subpoena dealing with terrorism than it would Medicare 
fraud or bank fraud. That is not the case. We care so much about civil 
liberties, we added this requirement that you have to go to court first 
in order to get the subpoena. This is not a search warrant. This is a 
subpoena. It is merely a request for information. Unlike a warrant, a 
subpoena does not allow the Government to enter someone's home or 
business or property to take things. It is only a request. If the 
recipient objects to it, the Government has to go to court and defend 
the subpoena and seek an order for its enforcement. That, too, is where 
I disagree with my friend from Illinois. There is an ability to say, 
no, we will not submit the records, in which case the Government has to 
prove them in court.
  Most Government agencies already have the authority to issue 
subpoenas, and there are 335 of them in the code. It is interesting. If 
Mohamed Atta were suspected of Medicare fraud, then the Department of 
Health and Human Services could get a subpoena into business records 
that might demonstrate whether he is connected with that Medicare 
fraud. It seems to me to be a little bit incongruous not to allow the 
Department of Justice to go to the FISA Court and ask for a subpoena in 
the event that they suspect him of terrorism, especially when we have 
added the other protections in here that the conference report has 
added--the relevancy standard and an additional three-part test that 
makes it clear that it has to relate to foreign espionage or terrorism.
  Some people say: The section 215 subpoena is a little different 
because these other subpoenas relate to regulated industries. Even 
subpoenas that are involved in investigating industries that are used 
to get information from citizens outside the regulated industry use it 
in a situation where people are outside of the industry and not just 
the regulated industry itself. For example, if you are talking about 
some kind of business fraud, if the SBA is seeking an administrative 
subpoena, they are not just subpoenaing the beneficiary itself. They 
can subpoena others doing business with the entity under investigation. 
In one important way, the PATRIOT Act has more protections in it than 
any of the others because you are required to go to court first. I dare 
say that most of the people who are raising questions about this don't 
advertise the fact that you have to go to court, you have to get 
approval from a judge first.
  Even a subpoena to appear before a grand jury is issued without going 
to the judge. There may be a misconception about that, but all the 
prosecutor has to do is write out the subpoena and you have to supply 
these business records in accordance with the law to the grand jury. 
You never have to go to a court first. The only time you have to go to 
court first is a subpoena invoked under section 215.
  One of the complaints is that 215 can be used to obtain books from 
libraries or other kinds of business records. Of course, to the extent 
library records are business records, that is true. But it does not, 
obviously, allow the FBI to simply go into a library and figure out 
what somebody is reading. It can be used to get library records but 
only if they are relevant to an investigation into foreign espionage or 
terrorism.

  Let me give an example. Some people remember the case of the 
Unabomber, Ted Kaczynski. This was an example given by the Justice 
Department because his brother had actually relayed to Federal agents 
his suspicion that Ted Kaczynski was behind the decades-long string of 
attacks. Remember the mail bomb attacks? At the time, the Unabomber had 
published his manifesto in the New York Times which cited several 
obscure, even ancient texts. In order to confirm the brother's 
suspicions, Federal agents subpoenaed Ted Kaczynski's library records 
and discovered that he had, in fact, checked out the obscure texts that 
had been cited in the manifesto, thus helping lead them to Ted 
Kaczynski as the Unabomber. Is there anything wrong with that? Would 
anybody have an objection to that? That didn't even require going to a 
court to get the subpoena.
  Section 215 also could have been used directly in investigating the 
conspirators who acted on September 11. How so? We now know that in 
August of 2001, a month before September 11, individuals using Internet 
accounts registered to Nawaf al Hazmi and Khalid al Midhar had used 
public access computers in the library of a State college in New 
Jersey. The computers in the library were used to shop for and review 
airline tickets on the Internet travel reservation site. Al Hazmi and 
al Midhar were hijackers aboard American Airlines Flight 77, the flight 
that took off from Dulles Airport and crashed into the Pentagon. The 
last documented visit to the library occurred on August 30, 2001, a 
dozen or so days before that fateful day. On that occasion, records 
indicate that a person using al Hazmi's account used the library's 
computer to review September 11 reservations he had previously booked.
  I hope the significance of this sinks in. Library records confirmed 
airline reservations on September 11. During that same month, August of 
2001, Federal agents knew that al Midhar and al Hazmi had entered the 
United States and initiated a search for those two

[[Page S14002]]

known associates of al-Qaida. Had the investigators caught the trail of 
these individuals and had the PATRIOT Act already been law, the 
investigators likely would have used section 215 to review the 
library's records of their Internet usage. Imagine if we had then 
picked them up, how the course of history might have changed.
  This is the use of section 215 relative to library records. It has 
nothing to do with you and me, nothing to do with what we read in the 
library. It has to do with determining whether there is information 
relevant to a foreign terrorist or international espionage, nothing 
more. It could theoretically have had an impact on the course of events 
that occurred on September 11, had we been able to use it in connection 
with al Hazmi and al Midhar. I also want to mention the fact that over 
half a dozen reports submitted by the inspector general of the 
Department of Justice have uncovered no instances of abuse of this 
section. The latest public report indicates that the authority had been 
used approximately three dozen times and that it had not been found to 
have been abused. Moreover, in the conference report which was 
filibustered, the one we would like to be able to vote on so that the 
act could be reauthorized, we require reports every 6 months to the 
Congress. These reports are very specific as to the kinds of 
information with respect to section 215 that we want to review, 
including whether, as a result of the audits done by the inspector 
general, there is any potential abuse or there was any potential abuse 
of this section.
  So, Mr. President, we have the original section 215, which already 
had protections that are unlike any other use of an administrative 
subpoena; added onto that is the requirement that you have to go to the 
FISA Court, that it must relate and must be relevant to an 
investigation into espionage or terrorism. And we have an after-the-
fact report so that if anything went wrong, or that the inspector 
general had reason to suspect. That information comes to the Members of 
Congress every 6 months. It seems to me that any fair reading and fair 
consideration of section 215 would lead to the conclusion that it is an 
authority that we need, that it is an important tool for law 
enforcement, that it has adequate protections built into it, and that 
all of the hype that surrounds this is, frankly, just exactly that--
that it is an effort to draw some kind of conclusion, create some kind 
of confusion here that something is wrong with the law, that it is 
potentially used to eavesdrop on American citizens or somehow sneak 
their records in a way that could nefariously be used by the U.S. 
Government.
  There is not one example where this has occurred or where anybody is 
complaining about the use of section 215 that harmed them. With all of 
the protections we have built in, I ask my colleagues, what else 
exactly do you want? What could you do? How would you change this? What 
would be different? Why isn't the bill that is before us adequate to 
both protect American civil liberties and, importantly, protect all of 
our freedoms by giving law enforcement and intelligence agencies the 
ability they need to carry out their mission?
  Let me conclude with respect to this argument that if we just had a 
little bit more time, maybe we could reopen this and resolve issues. 
First of all, the conference committee is closed. As a matter of 
procedure, we cannot just reopen a conference committee. Secondly, a 
lot of things could have been raised or were raised in conference 
committee that would be revisited.
  I will tell you what some of those things would be in the event you 
are interested in having these things revisited. I wanted to include a 
provision relating to terrorist hoaxes. That is not in here. We know 
when somebody phones in with a hoax, the police or the fire department 
or the bomb squad or the hazardous material squad need to be sent out. 
It can be a horrible drain on law enforcement, and there ought to be a 
way to deal with these hoaxes in a much more serious way.
  Law enforcement would like to have a better definition of ``material 
support.'' This is used in statutes to deal with people who are 
providing support--the accessory before the fact kind of situation. 
Because of the kind of support that can be provided to terrorists, that 
section probably could stand some further definition. I would like to 
be able to do that in another conference committee.
  The Classified Information Procedures Act is something that was 
initially considered and should be considered again if a new conference 
committee is opened. Frankly, the House was asked to eliminate an 
important death penalty provision, and they did that in conference, as 
well as some other provisions that I very strongly would like to have 
in the bill.
  Let it be clear that if a new conference committee were created, 
there would be all sorts of issues that would be brought to bear, and 
negotiation is a two-way street. There are other ways we could improve 
on by strengthening the PATRIOT Act. I would want to be sure that those 
things are developed and are brought to bear.
  Finally is this matter that has been brought up regarding 
eavesdropping on the citizens of the United States. A couple of my 
colleagues, just before the vote on the PATRIOT Act on the cloture 
motion, said they had been going back and forth on whether to support 
it. They read the article in the New York Times and that was 
dispositive in their minds that they had to vote against cloture. Bear 
it in mind, it has nothing to do with the PATRIOT Act. In other words, 
the disclosure of this kind of intelligence gathering that has been in 
the news in the last 72 hours or so has nothing whatsoever to do with 
the PATRIOT Act. I gather there is a view that, well, if the 
administration does one kind of thing, they might therefore be willing 
to abuse the law in another situation. That is exactly why all of these 
protections have been built into the PATRIOT Act.
  I would think my colleagues would want to pass the PATRIOT Act, make 
sure that it is now the law, rather than leaving the PATRIOT Act the 
way it is today. They asked for an extension. Yet if they wanted to 
improve it and add additional protections, one would think they would 
want to act quickly to get these protections into the law. Congress 
will, in fact, obviously, be looking into these new allegations. I urge 
my colleagues, as well as the American citizens, to think about two 
things. First of all, the question of whether anybody has complained 
during the time, under both President Clinton and President Bush, the 
procedures have been in effect for us to be able to gather certain 
kinds of information and to do so under the powers of the President. 
When we are at war, he has ability to accept communications of the 
enemy. Nobody has to point to a section of the law that gives him some 
kind of search warrant authority to go to a judge and ask for the 
ability to do that. All Presidents have always used that authority in a 
time of war. The President relies upon that authority in this 
particular case. Members of Congress had been briefed on that for 
years.

  Only until this New York Times article came out did Members of 
Congress find themselves absolutely shocked that this kind of activity 
might be going on and, furthermore, that it caused them to vote against 
consideration of the PATRIOT Act, which that has nothing to do with. I 
will say it again.
  These stories in the media have nothing to do with the PATRIOT Act. 
So it seems to me that that is not a good excuse for not being able to 
vote on the PATRIOT Act.
  The second thing I want to say with respect to that is--and I 
certainly do not refer to any of my colleagues in the Senate when I 
make this comment--but there is in the media a significant degree of 
hypocrisy. I note some of the stories day after day were focused on the 
improper disclosure of the identity of a person working for the CIA, as 
if this is about the worst thing that could ever occur. ``How dare 
anybody leak classified information'' was the mantra day after day. How 
indeed.
  But have you heard anybody raise the question of the appropriateness 
of the leaking of this very highly classified program that is now out 
in the media and discussed by American citizens, about the collection 
of information that relates to terrorists? It is called eavesdropping 
on American citizens, but that is not what it is. The President made 
clear in his press conference this morning that we are talking about 
communicating with terrorists or people who have connections

[[Page S14003]]

with known terrorists. If you call one of those people, you might 
expect that somebody might want to know about that. Or if they call 
you. In that case, I guess you might consider yourself vulnerable to 
the U.S. Government being interested in what you are doing talking to a 
terrorist. But we are not eavesdropping on American citizens.
  The real question I ask is, where is the outrage with respect to the 
release of this classified information, disclosure of this highly 
classified program which, as the President noted this morning, can 
greatly degrade our intelligence capability and harm our ability to 
fight the war on terrorism? He was asked to give an example, and he 
did. He gave the example of how it used to be that we knew how Osama 
bin Laden was communicating. He was communicating pursuant to a certain 
device. Somebody leaked to media that we had the ability to intercept 
the communications from that particular device. Guess what he did. He 
stopped using it. He went underground, and we could no longer listen in 
to what he was saying. What he was saying beforehand was very helpful. 
Now we cannot hear anything.
  The same thing is true here. Somebody, in order to hurt the 
administration, I gather, decided it would be a really dandy thing to 
leak to the public a highly sophisticated program used to gather 
information from terrorists, to help us protect the American people in 
the war on terrorism. Have you heard any condemnation of that on the 
Senate floor? Have you heard any condemnation of it in the mainstream 
media? No, they were very concerned when the identity of a CIA agent 
who is known anyway, I gather, was released. I guess that is high 
dudgeon. I have not heard a peep out of anybody in the mainstream media 
criticizing whoever it was that leaked this highly classified program, 
that is now out in the public.
  Mr. President, this leaker has to be brought to justice, and the 
President this morning said he gathered that the usual processes in the 
Department of Justice to look after such things were in place and were 
being pursued. I certainly hope so because every time a leak such as 
this occurs, it degrades the country's ability to protect the citizens 
of the United States. Whatever this collection methodology is--and 
thankfully it hasn't been described in much more detail, but whatever 
it is, we don't want the other side to stop doing it or that is another 
avenue of information that is closed off to us.
  So why would we want to make a big public disclosure of all of this? 
At a minimum, when those of us in the Congress look into this further, 
as we surely will, we will need to do this in a classified setting. I 
wonder how much of that will remain classified. I wonder whether we are 
able to keep a secret around here.
  If we are going to fight the war on terror, let's remember, unless we 
want to fight it on the battlefields of Afghanistan or the streets of 
Baghdad, the best way to defeat the terrorists is through intelligence-
gathering agencies. What that means is having the capability to find 
out what the other side is doing so we can try to stop it by 
infiltrating their organization, by compromising it in one way or 
another. That is critical to fighting the war on terror.
  Intelligence is our main method of dealing with this war. If we keep 
compromising our capability because people feel compelled to breach our 
national security, to violate the law because they want to bring 
information out that will embarrass the administration or that will 
affect the PATRIOT Act--the article, remember, according to some was 
written a year before the New York Times published it on the day we had 
the vote on the PATRIOT Act. Perhaps coincidence. But unless we are 
going to start objecting to that kind of behavior, it will continue. 
Then we will wonder why our intelligence agencies and law enforcement 
agencies were not better able to protect us when there is another 
attack.
  I urge my colleagues, as well as the American people, to consider the 
losses we will suffer as a result of this kind of behavior and to try 
to bring to account those who engage in this kind of behavior, not to 
condone it.
  We in the Congress will do everything we can to make sure all 
authorities are used legally. The President can be assured of that. But 
in the meantime, it seems to me we ought to feel a little bit more 
secure that we have great capabilities collecting intelligence, and we 
need the ability to do that in order to protect the American people.
  I hope we will have another opportunity to take a vote on the PATRIOT 
Act, that we can extend it, we can reauthorize it so it can again be 
used to protect the American people from this evil of terrorism that we 
face.
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I ask unanimous consent that I be permitted 
to proceed for such time as I use.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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