[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

[[Page S1378]]

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

[[Page S1379]]

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.

                          ____________________