[Congressional Record Volume 152, Number 20 (Thursday, February 16, 2006)]
[Senate]
[Pages S1377-S1379]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006--MOTION
TO PROCEED
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 2271, which the
clerk will report.
The legislative clerk read as follows:
Motion to proceed to the consideration of S. 2271, a bill
to clarify that individuals who receive FISA orders can
challenge nondisclosure requirements, that individuals who
receive national security letters are not required to
disclose the name of their attorney, that libraries are not
wire or electronic communication service providers unless
they provide specific services, and for other purposes.
The PRESIDING OFFICER. Under the previous order, the time until 10:30
is equally divided between the two leaders or their designees.
The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Madam President, the upcoming cloture vote on the
motion to proceed to S. 2271, introduced by my friend Senator Sununu,
is the first opportunity for my colleagues to go on record on whether
they will accept the White House deal on PATRIOT Act reauthorization.
Back in December, 46 Senators voted against cloture on the conference
report. I think it's clear by now that the deal makes only minor
changes to that conference report. The Senator from Pennsylvania,
chairman of the Judiciary Committee and primary proponent of the
conference report in this body, was quoted yesterday as saying that the
changes that the White House agreed to were ``cosmetic.'' And then he
said, according to the AP, ``But sometimes cosmetics will make a beauty
out of a beast and provide enough cover for senators to change their
vote.''
The Senator from Alabama said on the floor yesterday: ``They're not
large changes, but it made the Senators happy and they feel comfortable
voting for the bill today.'' I agree with both of my adversaries on
this bill that the changes were minor and cosmetic. I explained that at
length yesterday, and no one else other than Senator Sununu came down
to the floor to defend the deal.
Some of my colleagues have been arguing, however, that we should go
along with this deal because the conference report, as amended by the
Sununu bill, improves the PATRIOT Act that we passed 4\1/2\ years ago.
It's hard for me to understand how Senators who blocked the
conference report in December can now say that it's such a great deal.
It's not a great deal--the conference report is just as flawed as it
was 2 months ago. No
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amount of cosmetics is going to make this beast look any prettier. That
said, let me walk through some of the provisions of the conference
report that are being touted as improvements to the original PATRIOT
Act.
First, there's the issue that was the linchpin of the bill the Senate
passed without objection in July of last year, that of course is the
standard for obtaining business records under Section 215. Section 215
gives the Government extremely broad powers to secretly obtain people's
business records. The Senate bill would have required that the
Government prove to a judge that the records it sought had some link to
suspected terrorists or spies or their activities. The conference
report does not include this requirement. Now, the conference report
does contain some improvements to section 215, at least around the
edges. It contains minimization requirements, meaning that the
executive branch has to set rules for whether and how to retain and
share information about U.S. citizens and permanent residents obtained
from the records. And it requires clearance from a senior FBI official
before the Goverment can seek to obtain particularly sensitive records
like library, gun and medical records. But the core issue with section
215 is the standard for obtaining these records in the first place.
Neither the minimization procedures nor the high level signoff
changes the fact that the Government can still obtain sensitive
business records of innocent, law-abiding Americans. The standard in
the conference report--``relevance''--will still allow Government
fishing expeditions. That is unacceptable. And the Sununu bill does not
change that.
Next, let me turn to judicial review of these section 215 orders.
After all, if we are going to give the Government such intrusive
powers, we should at least let people go to a judge to challenge the
order. The conference report does provide for this judicial review. But
it would require that the judicial review be conducted in secret, and
that Government submissions not be shared with the challenger under any
circumstances, without regard for whether there are national security
concerns in any particular case. This would make it very difficult for
a challenger to get meaningful judicial review that comports with due
process.
And the Sununu bill does not address this problem.
What we have are very intrusive powers, very limited judicial
review--and then, on top of it, anyone who gets a section 215 order
can't even talk about it. That's right--they come complete with an
automatic, indefinite gag order. The new ``deal'' supposedly allows
judicial review of these gag orders, but that's just more cosmetics. As
I explained yesterday, the deal that was struck does not permit
meaningful judicial review of these gag orders. No judicial review is
available for the first year after the 215 order has been issued. Even
when the right to judicial review does finally kick in, the challenger
has to prove that the Government acted in bad faith. We all know that
is a virtually impossible standard to meet.
The last point on section 215 is that the conference report, as
amended by Sununu bill, now explicitly permits recipients of these
orders to consult with attorneys, and without having to inform the FBI
that they have done so. It does the same thing with respect to national
security letters. This is an important clarification, but keep in mind
that the Justice Department had already argued in litigation that the
provision in the NSL statute actually did permit recipients to consult
with lawyers. So this isn't much of a victory at all. Making sure that
recipients don't have to tell the FBI if they consult a lawyer is an
improvement, but it is a minor one.
Next let's turn to national security letters or NSLs. These are the
letters that the FBI can issue to obtain certain types of business
records, with no prior court approval at all.
The conference report does provide for judicial review of NSLs, but
it also gives the Government the explicit right to enforce NSLs and
hold people in contempt for failing to comply, which was not previously
laid out in the statute. In stark contrast to the Senate bill, the
conference report also would require that the judicial review be
conducted in secret and that Government submissions not be shared with
a challenger under any circumstances without regard to whether there
are national security concerns in any particular case. So just like the
section 215 judicial review provision, this will make it very difficult
for challengers to be successful. Again, the Sununu bill does not
address this problem.
Of course, NSLs come with gag orders, too. The conference report
addresses judicial review of these gag orders, but it has the same flaw
as the Sununu bill with regard to judicial review of the section 215
gag rule. In order to prevail, you have to prove that the Government
acted in bad faith, which, again, would prove to be virtually
impossible. The Sununu bill does not modify these provisions at all.
Let me make one last point on NSLs. The Sununu bill contains a
provision which states that libraries cannot receive an NSL for
Internet records unless the libraries provide ``electronic
communication services'' as defined by statute. But that statute
already applies only to entities that satisfy this definition, so this
provision is essentially just restating existing law. It is no
improvement at all. Those cosmetics wear pretty thin when you look
closely at this deal.
Let's turn to sneak-and-peek search warrants. As I laid out in detail
yesterday, the conference report takes a significant step back from the
Senate bill by presumptively allowing the Government to wait an entire
month to either notify someone that agents secretly searched their home
or to get approval from a judge to delay the notice even longer. The
Senate said it should be 1 week. I have yet to hear any argument at
all, even in direct debate from the Senator from Alabama, much less a
persuasive argument, why that amount of time is insufficient for the
Government.
The core fourth amendment protections are at stake. This is not like
flipping a coin: Let's make it 7 days; no, make it 30 days. This
involves people coming into somebody's house without their knowledge
and how long that should be allowed without telling them you were in
their house. Once again, the Sununu bill does nothing to address this
issue.
Let me talk briefly about roving intelligence wiretaps under section
206 of the PATRIOT Act. We have not discussed this issue much, in part
because the conference report does partially address the concerns
raised about this provision. But the conference report language is
still not as good as the Senate bill was on this issue. 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 Sununu bill does not address
this problem.
Supporters of the conference report say it contains new 4-year
sunsets for three provisions: section 206, section 215, and the so-
called lone wolf expansion of the Foreign Intelligence Surveillance Act
that passed as a part of the intelligence reform bill in 2004. We
agree, I am sure, that sunsets are not enough. This reauthorization
process is our opportunity to fix the problems of the PATRIOT Act. Just
sunsetting bad law again is hardly a real improvement. Of course,
neither the conference report nor the Sununu bill contains a sunset for
the highly controversial national security letter authorities which
were expanded by the PATRIOT Act, even though many of us said back in
December that was a very important change we wanted to see made.
I have the same response to those who point to the valuable new
reporting provisions in the conference report: We must make substantive
changes to the law, not just improve oversight.
I have laid out at length the many substantive reasons to oppose the
deal. But there is an additional reason to oppose cloture on the motion
to proceed; that is, it appears the majority leader is planning to
prevent Senators from offering and getting votes on amendments to this
bill.
I was on the Senate floor for 9 hours yesterday. I was not asking for
much, just a guarantee that once we moved to proceed to the bill I
could offer and get votes on a handful of amendments relavant to the
bill. There was a time--in fact, I was here--when Senators did not have
to camp out on the floor to plead for the opportunity to offer
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amendments. In fact, offering debate and voting on amendments is what
the Senate is supposed to be all about. That is how we craft
legislation. But my offer was rejected.
It appears as if the other side may try to ram this deal through
without a real amending process. I hope that even colleagues who may
support the deal will oppose such a sham process. It makes no sense to
agree to go forward without a guarantee that we will be allowed to
actually try to improve the bill. It is a discourtesy to all Senators,
not just me, to try to ram through controversial legislation without
the chance to improve it.
In sum, I oppose the sham legislative process the Senate is facing,
and I oppose the flawed deal we are being asked to ratify.
Notwithstanding the improvements achieved in the conference report, we
still have not adequately addressed some of the most significant
problems of the PATRIOT Act. I must oppose proceeding to this bill
which will allow this deal to go forward. I cannot understand how
anyone who opposed the conference report back in December can justify
supporting it now. The conference report was a beast 2 months ago, and
it has not gotten any better looking since then.
I urge my colleagues to vote no on cloture. I reserve the remainder
of my time.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CRAIG. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, the Chair lays
before the Senate the pending cloture motion, which the clerk will
state.
The assistant legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the motion to
proceed to S. 2271: to clarify that individuals who receive
FISA orders can challenge nondisclosure requirements, that
individuals who receive National Security Letters are not
required to disclose the name of their attorney, that
libraries are not wire or electronic communication service
providers unless they provide specific services, and for
other purposes.
Bill Frist, James Inhofe, Richard Burr, Christopher Bond,
Chuck Hagel, Saxby Chambliss, John E. Sununu, Wayne
Allard, Johnny Isakson, John Cornyn, Jim DeMint, Craig
Thomas, Larry Craig, Ted Stevens, Lindsey Graham, Norm
Coleman.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S. 2271, the USA PATRIOT Act Additional
Reauthorizing Amendments Act of 2006, shall be brought to a close? The
yeas and nays are mandatory under the rule. The clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Louisiana (Mr. Vitter).
The PRESIDING OFFICER (Mr. Ensign). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 96, nays 3, as follows:
[Rollcall Vote No. 22 Leg.]
YEAS--96
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brownback
Bunning
Burns
Burr
Cantwell
Carper
Chafee
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Voinovich
Warner
Wyden
NAYS--3
Byrd
Feingold
Jeffords
NOT VOTING--1
Vitter
The PRESIDING OFFICER. On this vote, the yeas are 96, the nays are 3.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
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