[Congressional Record Volume 152, Number 20 (Thursday, February 16, 2006)]
[Senate]
[Pages S1379-S1403]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006

  The PRESIDING OFFICER. Under the previous order, the motion to 
proceed to S. 2271 was agreed to, and the clerk will state the bill by 
title.
  The legislative clerk read as follows:

       A bill (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.

  The PRESIDING OFFICER. The majority leader is recognized.


                           Amendment No. 2895

  Mr. FRIST. Mr. President, I send an amendment to the desk and ask for 
its consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Tennessee (Mr. Frist) proposes an 
     amendment numbered 2895.

  Mr. FRIST. I ask unanimous consent that further reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the end of the bill add the following: This Act shall 
     become effective 1 day after enactment.

  Mr. FRIST. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                Amendment No. 2896 to Amendment No. 2895

  Mr. FRIST. Mr. President, I send a second-degree amendment to the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Tennessee (Mr. Frist) proposes an 
     amendment numbered 2896 to Amendment No. 2895.

  Mr. FRIST. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after the first word and insert: Act shall 
     become effective immediately upon enactment.


                             Cloture Motion

  Mr. FRIST. Mr. President, I send a cloture motion on the bill to the 
desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  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 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, Arlen Specter, Thad Cochran, Richard Burr, 
           Mel Martinez, Jim Bunning, Jon Kyl, Craig Thomas, Mike 
           Crapo, David Vitter, Bob Bennett, Norm Coleman, Michael 
           B. Enzi, Lindsey Graham, Jeff Sessions, Saxby 
           Chambliss, John Cornyn, John Thune.

  Mr. FRIST. Mr. President, the actions just taken, coupled with the 
agreement we came to last night, set out a sequence I will review later 
today. We will have final passage once we get back from the recess. I 
am very disappointed in the fact that on a bill I know will pass 
overwhelmingly, by 90 to 10 or 95 to 5, it has been required of us from 
the other side of the aisle to be here all day yesterday, today, 
tomorrow, through the recess, Monday when

[[Page S1380]]

we get back, Tuesday when we get back, and final passage on Wednesday 
morning, when we know what the outcome will be. It bothers me in two 
regards. First of all, it is a very important piece of legislation. It 
breaks down and further defines that rough relationship between our law 
enforcement community and our intelligence community. It is an 
important tool for the safety and security of the American people and 
the protection of civil liberties. The bill has been improved and will 
be overwhelmingly supported.

  Secondly, I am disappointed because it means that we effectively have 
to put off other important business before this body with this 
postponement and this delay, issues that are important, that are 
immediate, that need to be addressed. The issue of lobbying reform is 
underway, and we need to address that on the floor sometime in the near 
future, such as the issues of LIHEAP and heating, flood insurance, a 
whole range of bills.
  It also plays into what has been this pattern of postponement and 
delay and obstruction. If you look back at what we finished yesterday, 
the asbestos bill, we were forced to file cloture on the motion to 
proceed, which delays, in essence, for 3 days, consideration of that 
bill. We had debate for a day, with the other side encouraging not to 
take amendments on that day, allowing 2 days for amendments, but, in 
effect, spending 2 weeks on a bill on which we could have been moving 
much quicker.
  Another example--I mentioned it last night in closing--is the 
pensions bill, a bill that passed this body on November 16, 2005, last 
year, 3 months ago. We asked the Democrats to appoint conferees on 
December 15 of last year. We renewed that request on February 1. We 
have been prepared. We have our conferees ready to go. We know what the 
ratio is, but we still have not been able to send that important bill 
to conference. In that regard, I wanted to formally, again, make 
another request, but we absolutely must begin that conference.


                 Unanimous-Consent Request--H. R. 2830

  Mr. President, I ask unanimous consent that the Senate proceed to the 
immediate consideration of Calendar No. 357, H.R. 2830, that all after 
the enacting clause be stricken and the text of S. 1783, as passed by 
the Senate, be inserted thereof, that the bill, as amended, be read a 
third time and passed, the motion to reconsider be laid upon the table, 
the Senate insist upon its amendment and request a conference with the 
House, and the Chair be authorized to appoint conferees at a ratio of 7 
to 5.
  Mr. REID. Mr President, reserving the right to object, first of all, 
on the PATRIOT Act, it is very unusual to bring a bill to the floor and 
allow no amendments.
  I understand the history of this legislation. We had a cloture vote, 
and cloture was not invoked. It was a bipartisan vote that has now been 
resolved and that Senator Sununu has worked hard to bring it to the 
Senate. I think the majority of the Senate clearly favors this 
legislation, but Senator Feingold wants to offer amendments. Senator 
Leahy wants to offer an amendment.
  First of all, we could agree to the motions that are now pending 
before the Senate on the PATRIOT Act. The so-called filling the tree 
was used to block Senator Feingold. We could adopt those amendments 
just like that because they are only date changes and mean very little. 
They mean nothing, frankly.
  We could move every bill quickly here if we had no amendments. The 
distinguished majority leader is saying we are taking time with these 
amendments. That is what we do. Senator Feingold has agreed 
reluctantly, but he agreed, and I appreciate that very much. And 
Senator Leahy also agreed that there would be two amendments offered, 
one dealing with section 215, the other would deal with the so-called 
gag order. These two amendments would take an extremely limited amount 
of time to debate. We could vote on them today and finish this 
legislation. The majority leader has decided not to do that. He filled 
the tree, and that is his right. We understand that. But I think it is 
a mistake. I think it sets a bad tone for what we are trying to 
accomplish.
  In regard to the matter before the Senate now, the unanimous consent 
request, which I will respond to, deals with an important piece of 
legislation. I acknowledge that, and we need to complete it. It will 
affect millions of working Americans. The bill has strong bipartisan 
support. It passed out of here by a vote of 97 to 2. As I reminded the 
distinguished majority leader off microphone, we in the minority worked 
very hard to get the bill passed. We eliminated amendments that people 
wanted to offer. It was a bipartisan effort by virtue of the extremely 
good vote we had.
  We are eager to get to work on producing a conference report that 
will both strengthen the Pension Benefit Guaranty Corporation and 
provide certainty to employers who sponsor other types of pensions. The 
virtual unanimity with which the bill passed the Senate does not mean, 
however, that there aren't issues that need to be resolved with the 
House.
  We have 13 titles, and it involves many issues, including changing 
the myriad of rules that guide employers' pension funding requirements, 
establishes the proper interest rate for employer funding purposes, and 
for calculating lump-sum distributions paid to departing employees. 
There are a couple of other provisions, such as it increases premiums 
of the Pension Benefit Guaranty Corporation, protects older workers who 
are hurt by changes, the so-called cash balance pension plans, and 
finally, one of the issues is establishing rules to help employees with 
401(k) plans get unbiased investment advice. It expands 401(k) plans to 
make it easier for employees to be automatically enrolled in these 
plans so they get better savings for their retirements and changes the 
rules to protect spousal benefits.

  Some of these issues are very technical in nature, and there are very 
few Senators who understand them because they have worked on them. For 
example, on our side, Senator Harkin is an expert, and all of those 
people on the Labor Committee acknowledge his expertise in one field. 
Senator Mikulski, the ranking member of the subcommittee, is an expert 
in other areas.
  So the point I am making is that the majority has said you will have 
a conference committee with seven Republicans and five Democrats. I am 
saying we need eight Republicans and six Democrats. It would allow me 
to offer somebody who I think is vitally important in allowing a better 
product to come back from the conference, at least the ability to 
debate it better.
  We are not holding up this pension conference. We are not holding it 
up. I say the argument is just as easily made that it is being held up 
by the majority because they refuse to allow us to have 6 members to 
conference, 6 out of 100, on something that will affect hundreds of 
millions of Americans. I don't think that is asking too much.
  So we are willing to go to conference in 5 seconds, 5 minutes. I have 
my conferees ready to go. We need six. It may sound easy putting these 
conference committees together, but it is not. I see on the floor the 
former majority leader and the former minority leader of the Senate, 
and Senator Frist, the present majority leader, is here. They know how 
difficult these conference committees are. But I have a unique problem 
on this bill, and I need another Democratic member. So I object, unless 
the ratio is eight Republicans and six Democrats.
  This is not arm wrestling. This doesn't have to show who is the 
toughest, that we are all going to hang in there, and we are not going 
to allow this to happen. We are in the minority. We understand that. 
But we have certain rights also. I don't think it is asking too much to 
increase the size of this conference. One more Democrat is all we are 
asking for. In exchange for that, of course, you get another 
Republican.
  So I hope the ratio--the majority will have two extra Republicans on 
the conference--is something to which the distinguished majority leader 
will agree.
  Mr. LOTT. Reserving the right to object, if I can make a 
parliamentary inquiry: First of all, did Senator Reid ask for a 
different UC?
  Mr. REID. Yes, I did, Mr. President. I ask that the request of the 
distinguished majority leader be amended to allow an eight-to-six 
conference, eight Republicans, six Democrats.
  Mr. LOTT. Reserving the right to object to that, Mr. President, I 
hesitate

[[Page S1381]]

to tread into these waters because I know how difficult it is to be in 
the position that these two leaders are in. They have to make tough 
choices. They have to take into consideration what happens once you get 
into conference. You have to look at personalities. But frankly, I 
think seven and five is too big. That is, to me, a pretty large number 
of Senators to be going to conference. I understand that Senator Reid 
has other Senators who would like to be conferees, and I am sure 
Senator Frist has other Senators who would like to be conferees. In 
fact, most Senators would like to be a conferee on everything, 
particularly coming out of their committee. That is what this is all 
about. I wanted to be a conferee on the tax reconciliation bill. I 
worked on it for a year, but I am not. The leader made the choice to go 
with two others, and I am off. I am not happy about that, and I have 
explained it to him. It is called leadership. It is called tough 
choices.
  By the way, this has been hanging around since December 10. I believe 
that is when our leadership first said: Let's go to conference. I 
remind my colleagues and our leaders, this is a bipartisan bill. This 
is a bill that passed the Senate overwhelmingly. This is a bill that 
passed the House overwhelmingly. But it is a complex area. We need time 
to work out the difficulties and disagreements on pensions and how it 
affects aviation. None of it is going to be easy. I would think some 
Senators might want to take second thoughts about whether to be on this 
conference because it will be difficult.
  But we have a time problem. If we don't appoint these conferees this 
week in the Senate and the House, we won't be able to begin when we 
come back, and then another week will be frittered away. When you look 
at the calendar, we will have something like maybe 25 days to reach an 
agreement because there is a drop-dead date on this.
  First of all, at least two airlines are hanging in the balance of 
bankruptcy. They could very easily dump their pensions on the PBGC and 
say we are out of here. They are trying not to do that. They are trying 
to do the responsible thing for themselves, the taxpayers, and 
everybody.
  Secondly, the reason why April 15 is a very serious date is because 
that is when the next quarterly payment is due. Within 2 weeks, 
companies are going to have to make a decision: Do I comply or not? Do 
I dump my pension on PBGC or do I go into bankruptcy?
  We have a time problem. So I know it is not easy, but we need to get 
this done. I know the leaders have been talking back and forth trying 
to reach an agreeable number to deal with all this, but I say to my 
friends, it is time to make a decision, and we all have to understand 
we don't all get to be conferees. I understand that. I don't like it, 
but I understand it.
  So I object to a larger number for a lot of reasons, and I urge the 
two leaders to come to a quick agreement. Let's get this done in the 
next 24 hours. Let's show for the first time this year that we can deal 
with something, as hard as it may be, in a bipartisan way. So I object.
  The PRESIDING OFFICER. Objection is heard to modifying the unanimous 
consent request. Is there objection to the basic request?
  Mr. REID. Mr. President, reserving the right to object, I say to my 
friend, the junior Senator from Mississippi, this is the first request 
we have had for a conference. The majority and minority staffs have 
worked on this. They have made significant headway, and I appreciate 
the work they have done. The House has not appointed their conferees, 
and they are certainly not going to today or tomorrow. So I think what 
we need to do is understand the importance of this and understand that 
we are ready to go to conference. We are ready to go to conference. It 
is a question of how many conferees we have.
  I hope that my friends on the other side of the aisle would agree 
that it is important to go to conference and that we move forward as 
quickly as we can, allowing people from the Finance Committee--this 
isn't one committee. One reason it is complicated is that there are 
issues dealing with finance and the HELP Committee. So I object to the 
distinguished majority leader's request.
  The PRESIDING OFFICER. Objection is heard.
  The majority leader.
  Mr. FRIST. Mr. President, the issue is an important one because of 
the time constraints that were outlined by my colleague from 
Mississippi. This is something we have to work through. It is pretty 
simple, pretty straightforward, as my colleague from Mississippi said. 
We just went through appointing the conferees for the tax 
reconciliation bill. I had on the floor here a few minutes ago three 
different people who passionately wanted to be conferees--who worked on 
it, who deserve to be, yet they are not. Part of leadership is 
basically saying no. Seven to five is a reasonable number that many 
people think is too large. Seven to five is what it will be. I am 
hopeful that over the next few hours we can come to some resolution and 
appoint conferees. The House is ready to go to conference. We are 
ready. We asked to go to conference on December 15 of last year, yet we 
are not to conference.
  This is a specific problem. Both the Democratic leader and I have 
talked about this for days, that we both have challenges, but it is 
something that is pretty straightforward. The bill has been passed, it 
is ready to go to conference, is addressing a major problem facing 
people across America, and we need to address it.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the pending 
amendment be set aside so I may offer an amendment which is at the 
desk, amendment No. 2892.
  Mr. REID. Will the distinguished Senator yield?
  Mr. FEINGOLD. I yield to the Senator from Nevada.
  Mr. REID. I should have done this. I have people sending me notes. 
Are we having anymore votes today?
  Mr. FRIST. Let's decide within the next hour. With the schedule, I 
know there is still going to be an effort to offer amendments and the 
like. Why don't we get together and have some sort of announcement 
shortly to our colleagues.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent the pending 
amendment be set aside so I may offer an amendment at the desk, No. 
2892.
  The PRESIDING OFFICER. Is there objection?
  Mr. FRIST. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. FEINGOLD. Mr. President, we can obviously see what is going on 
here when the majority leader offered those two amendments earlier. He 
was filling the amendment tree. That means he is trying--in fact, he is 
going to do everything he can, and he will succeed, if he wishes--to 
refuse to allow Senators to improve this bill. Those amendments are 
nothing more than meaningless amendments, the amendments he has 
offered, that have to do with the effective date of the bill. They are 
nothing other than an attempt to prevent me or any other Senator from 
trying to amend this legislation.
  Not only was this a take-it-or-leave-it deal from the White House, 
but now the majority leader and perhaps other Senators are apparently 
afraid of what happens if the Senate actually does its work on this 
issue and has open votes on the merits of these issues.
  I want everyone to know that is the game that is being played here, 
on a bill that has major implications for the rights and freedom of the 
American people. Obviously, when the majority leader talks about how 
urgent it is that this be passed, he is conveniently ignoring the fact 
that this current law is in effect until March 10, and there is no risk 
whatsoever that the bill would not be renewed.
  I am going to speak for a few minutes about the various amendments I 
have filed and that the majority leader is preventing me from offering.


                           Amendment No. 2892

  Amendment No. 2892 is the amendment that would implement the standard 
for obtaining section 215 orders that was in the Senate bill the 
Judiciary Committee approved by a vote of 18 to 0 and that was agreed 
to in the Senate without objection. I hope my colleagues remember that. 
When the majority leader fills the tree, he is not preventing some type 
of esoteric amendments nobody has ever seen or heard of. Every member 
of the Judiciary Committee already voted for that

[[Page S1382]]

very provision and no Senator in the entire Senate, including the 
majority leader, objected to that being in the Senate bill. So this is 
not some kind of a last-minute deal. This is something the majority 
leader himself never objected to. It is a reasonable amendment that 
every Senator in one way or another has basically supported.
  Of all the concerns that have been raised about the PATRIOT Act since 
it was passed in 2001, this is the one that has received the most 
public attention, and rightly so. This is the one that is often 
referred to as the ``library provision.'' A reauthorization bill that 
doesn't fix this provision, in my view, has no credibility.
  Section 215 of the PATRIOT Act allows the Government to obtain secret 
court orders in domestic intelligence investigations to get all kinds 
of business records about people, including not just library records, 
but also medical records and various other types of business records. 
The PATRIOT Act allowed the Government to obtain these records as long 
as they were ``sought for'' a terrorism investigation. That is a very 
low standard. It didn't require that the records concern someone who 
was suspected of being a terrorist or spy, or even suspected of being 
connected to a terrorist or spy. It didn't require any demonstration of 
how the records would be useful in the investigation. Under section 
215, if the Government simply said it wanted records for a terrorism 
investigation, the secret FISA court was required to issue the order--
period. To make matters worse, recipients of these orders are also 
subject to an automatic gag order. They cannot tell anyone that they 
have been asked for records.
  Because of the breadth of this power, section 215 became the focal 
point of a lot of Americans' concerns about the PATRIOT Act. These 
voices came from the left and the right, from big cities and small 
towns all across the country. So far, more than 400 State and local 
government bodies have passed resolutions calling for revisions to the 
PATRIOT Act. And nearly every one mentions section 215.
  The Government should not have the kind of broad, intrusive powers 
that section 215 provides--not this Government, not any government. The 
American people shouldn't have to live with a poorly drafted provision 
that clearly allows for the records of innocent Americans to be 
searched, and just hope that Government uses it with restraint. A 
Government of laws doesn't require its citizens to rely on the good 
will and good faith of those who have these powers--especially when 
adequate safeguards can be written into the laws without compromising 
their usefulness as a law enforcement tool. Not one of the amendments I 
am offering would threaten the ability of law enforcement to do what is 
needs to do to investigate and prevent terrorism.
  After lengthy and difficult negotiations, the Judiciary Committee 
came up with language that achieved that goal. It would require the 
Government to convince a judge that a person has some connection to 
terrorism or espionage before obtaining their sensitive records. And 
when I say some connection, that's what I mean. The Senate bill's 
standard is the following: No. 1, that the records pertain to a 
terrorist or spy; No. 2, that the records pertain to an individual in 
contact with or known to a suspected terrorist or spy; or No. 3, that 
the records are relevant--just relevant--to the activities of a 
suspected terrorist or spy. That's the three-prong test in the Senate 
bill and I think it is more than adequate to give law enforcement the 
power it needs to conduct investigations, while also protecting the 
rights of innocent Americans. It would not limit the types of records 
that the Government could obtain, and it does not go as far to protect 
law-abiding Americans as I might prefer, but it would make sure the 
Government cannot go on fishing expeditions into the records of 
innocent people.

  The conference report did away with this delicate compromise. It does 
not contain the critical modification to the standard for section 215 
orders. The Senate bill permits the Government to obtain business 
records only if it can satisfy one or more prongs of the three-prong 
test. This is a broad standard with a lot of flexibility. But it 
retains the core protection that the Government cannot go after someone 
who has no connection whatsoever to a terrorist or spy or their 
activities.
  The conference report replaces the three-prong test with a simple 
relevance standard. It then provides a presumption of relevance if the 
government meets one of the three-prongs. It is silly to argue that 
this is adequate protection against a fishing expedition. The only 
actual requirement in the conference report is that the Government show 
that those records are relevant to an authorized intelligence 
investigation. Relevance is a very broad standard that could arguably 
justify the collection of all kinds of information about law-abiding 
Americans. The three-prongs now are just examples of how the Government 
can satisfy the relevance standard. That is not simply a loophole or an 
exception that swallows the rule. The exception is the rule, rendering 
basically meaningless the three-prong test that we worked so hard to 
create in the Senate version of the bill.
  This issue was perhaps the most significant reason that I and others 
objected to the conference report. So how was this issue addressed by 
the White House deal to get the support of some Senators? It wasn't. 
Not one change was made on the standard for obtaining section 215 
orders. That is a grave disappointment. The White House refused to make 
any changes at all. Not only would it not accept the Senate version of 
section 215, which, no member of this body objected to back in July--
including the majority leader--it wouldn't make any change in the 
conference report on this issue at all.
  So today I offer an amendment to bring back the Senate standard on 
section 215. It simply replaces the standard in the conference report 
with the standard from the Senate bill. I urge my colleagues to support 
this change, which we all consented to 6 months ago, and which was one 
of the core issues that many of us stood up for in December when we 
voted against cloture on the conference report.
  I know that some will say they must oppose this amendment because it 
would disrupt a delicate agreement that has been achieved with the 
White House. I disagree. There is no reason we can't reauthorize the 
PATRIOT Act and fix section 215--in fact, there is every reason we 
should do so. This body has expressed its strongly held views on this 
issue before, and it should do so again. If this issue went to a vote 
in the House I'm confident we would have strong support because the 
House has already indicated a willingness to modify section 215 to 
protect the privacy of innocent Americans. That is the first amendment 
I wanted to offer. Let me next turn to amendment No. 2893.


                           Amendment No. 2893

  The second one is amendment No. 2893. This amendment would ensure 
that recipients of business records orders under section 215 of the 
PATRIOT Act and recipients of national security letters can get 
meaningful judicial review of the gag orders that they are subject to.
  Recipients of both section 215 orders and national security letters 
are subject to automatic, indefinite gag orders. This means both that a 
recipient cannot tell anyone what the section 215 order or NSL says, 
and that the recipient can never even acknowledge that he or she 
received a section 215 order or NSL. Now I understand there may very 
well be a need to protect the confidentiality of these business records 
orders and NSLs in many cases, particularly with regard to the identity 
of the people whose records they seek. But I do not understand why even 
the fact of their existence must be a secret, forever, in every case. 
Even classified information can undergo declassification procedures and 
ultimately become public, when appropriate.
  So I think that meaningful judicial review of these gag orders is 
critically important. In fact, these automatic, permanent gag rules 
very likely violate the first amendment. In litigation challenging the 
gag rule in one of the national security letter statutes, two courts 
have found first amendment violations because there is no 
individualized evaluation of the need for secrecy.
  So what does the reauthorization package do about this serious 
problem? Under the conference report, as modified by the Sununu bill, 
recipients would theoretically have the ability to challenge these gag 
orders in court, but

[[Page S1383]]

the standard for getting the gag orders overturned would be virtually 
impossible to meet. It is not the meaningful judicial review that the 
sponsors of the SAFE Act and so many others have been calling for.

  Let me start with the NSL provision of the conference report. In 
order to prevail in challenging the NSL gag order, the recipient would 
have to prove that any certification by the Government that disclosure 
would harm national security or impair diplomatic relations was made in 
bad faith.
  There would be what many have called a ``conclusive presumption'' the 
gag order stands--unless the recipient can prove that the Government 
acted in bad faith. We all know that is not meaningful judicial review. 
That is just the illusion of judicial review.
  Does the White House deal address this problem? It does not. In fact, 
it applies that same very troubling standard of review to judicial 
review of section 215 gag orders.
  The conference report that was rejected back in December did not 
authorize judicial review of the gag order that comes with a section 
215 order at all. That was a serious deficiency. But the White House 
deal does not solve it. Far from it. Under the deal, there is judicial 
review of section 215 gag orders, but subject to two limitations that 
are very problematic. First, judicial review can only take place after 
at least a year has passed. And second, it can only be successful if 
the recipient of the section 215 order proves that the Government has 
acted in bad faith, just as I have described with the NSL provision.
  My amendment would eliminate the ``bad faith'' showing currently 
required for overturning both section 215 and NSL gag orders. And it 
would no longer require recipients of section 215 orders to wait a year 
before they can challenge the accompanying gag orders.
  That is not everything I would want to address with regard to this 
issue. I am also concerned that the judicial review provisions allow 
the Government to present its evidence and arguments to the court in 
secret. But this amendment which I would like to offer is a good solid 
start. At a time when the Government is asserting extraordinary powers 
and seeking to exercise them without any oversight by the courts, 
judicial review of Government assertions that secrecy is necessary more 
essential than ever.
  We cannot face the American people and claim that overreaching by the 
government under the PATRIOT  Act cannot happen because the courts have 
the power to stop it--and then turn around and prevent the courts from 
doing their job. The illusion of judicial review is almost worse that 
no judicial review at all. In America, we cannot sanction kangaroo 
courts where the deck is stacked against one party before the case is 
even filed. Obviously, I hope that my colleagues will support this very 
reasonable amendment, if we are given a chance to vote on it. I think 
many would find it quite pervasive and particularly some of the people 
who were part of the White House negotiations.


                      amendment to add nsl sunset

  The third amendment I would like to offer, No. 2891, would  add to 
the conference report one additional 4-year sunset provision. It would 
sunset the national security letter  authorities that were expanded by 
the PATRIOT Act. It would be simply add that sunset to the already 
existing 4-year sunsets that are in the conference report with respect 
to section 206, section 215, and the lone wolf provision. 
  National Security Letters, or NSLs, are finally starting to get the 
attention they deserve. This authority was expanded by sections 358 and 
505 of the PATRIOT Act. The issue of NSLs has flown under the radar for 
years, even though many of us have been trying to bring more public 
attention to it. I am gratified that we are finally talking about NSLs, 
in large part due to a lengthy Washington Post story published last 
year about these authorities.
  What are NSLs, and why are they such a concern? Let me spend a little 
time on this because it really is important.
  National security letters  are issued by the FBI to businesses to 
obtain certain types of  records. So they are similar to section 215 
orders, but with one very critical difference. The Government does not 
need to get any court approval whatsoever to issue them. It doesn't 
have to go to the FISA court and make even the most minimal showing. It 
simply issues the order signed by the special agent in charge of a 
field office or an FBI headquarters official.
  NSLs can only be used to obtain certain categories of business 
records, While section 215 orders can be used to obtain ``any tangible 
thing.'' But even the categories reachable by an NSL are quite broad. 
NSLs can be used to obtain three types of business records: subscriber 
and transactional information related to Internet and phone usage; 
credit reports; and financial records, a category that has been 
expanded to include records from all kinds of everyday businesses like 
jewelers, car dealers, travel agents and even casinos.
  Just as with section 215, the PATRIOT Act expanded the NSL 
authorities to allow the Government to use them to obtain records of 
people who are not suspected of being, or even of being connected to, 
terrorists or spies. The Government need only certify that the 
documents are either sought for or relevant to an authorized 
intelligence investigation, a far-reaching standard that could be used 
to obtain all kinds of records about innocent Americans. And just as 
with section 215, the recipient is subject to an automatic, permanent 
gag rule.

  The conference report does nothing to fix the standard for issuing an 
NSL. It leaves in place the breathtakingly broad relevance standard. 
And the White House deal doesn't do anything about this either.
  It is true that the Senate bill does not contain a sunset on the NSL 
provision. But the Senate bill was passed before the Post brought so 
much attention to this issue by reporting about the use of NSLs and the 
difficulties that the gag rule poses for businesses that feel they are 
being unfairly burdened by them. At the very least, I would think that 
a sunset of the NSL authorities is justified to ensure that Congress 
has the opportunity to take a close look at such a broad power. And let 
me emphasize, the sunset in this amendment would only apply to the 
expansions of NSL authorities contained in the PATRIOT Act, not to pre-
existing authorities.
  I suspect that the NSL power is something that the administration is 
zealously guarding because it is one area where there is almost no 
judicial involvement or oversight. It is the last refuge for those who 
want virtually unlimited Government power in intelligence 
investigations. And that is why the Congress should be very concerned, 
and very insistent on including a sunset of these expanded authorities. 
A sunset is a reasonable step here. It helps Congress conduct oversight 
of these authorities, and requires us to revisit them in 4 years. 
Ideally we could go ahead and actually fix the NSL statutes now, but 
sunsetting the expanded powers would at least be a step in the right 
direction.
  Adding this sunset does not change the law in any way. I cannot 
imagine that adopting this amendment would blow up the White House 
deal. This is a reasonable amendment, and again I want my colleagues to 
have a chance to vote on it.


                        sneak and peek amendment

  The fourth amendment that I have, No. 2894, concerns so-called 
``sneak and peek'' searches, whereby the Government can secretly search 
people's houses. The Senate bill included compromise language that was 
acceptable to me and the other proponents of the SAFE Act. The 
conference report departs from that compromise in one very significant 
respect, and the White House deal doesn't address this at all. My 
amendment would restore the key component of the Senate compromise by 
requiring that subjects of sneak and peek searches be notified of the 
search within 7 days, unless a judge grants an extension of that time 
because there is a good reason to still keep the search secret. It 
makes no other change to the conference report other than changing 30 
days to 7 days.
  Let me take a little time to put this issue in context and explain 
why the difference between 30 days and 7 days is necessary to protect 
an important constitutional right.
  One of the most fundamental protections in the Bill of Rights is the 
fourth amendment's guarantee that all citizens have the right to ``be 
secure in

[[Page S1384]]

their persons, houses, papers, and effects'' against ``unreasonable 
searches and seizures.'' The idea that the Government cannot enter our 
homes improperly is a bedrock principle for Americans, and rightly so. 
The fourth amendment has a rich history and includes in its ambit some 
very important requirements for searches. One is the requirement that a 
search be conducted pursuant to a warrant. The Constitution 
specifically requires that a warrant for a search be issued only where 
there is probable cause and that the warrant specifically describe the 
place to be searched and the persons or things to be seized.
  Why does the Constitution require that particular description? Well, 
for one thing, that description becomes a limit on what can be searched 
or seized. If the magistrate approves a warrant to search someone's 
home and the police show up at the person's business, that search is 
not valid. If the warrant authorizes a search at a particular address, 
and the police take it next door, they have no right to enter that 
house. But here is the key. There is no opportunity to point out that 
the warrant is inadequate unless that warrant is handed to someone at 
the premises. If there is no one present to receive the warrant, and 
the search must be carried out immediately, most warrants require that 
they be left behind at the premises that were searched. Notice of the 
search is part of the standard fourth amendment protection. It's what 
gives effect to the Constitution's requirement of a warrant and a 
particular description of the place to be searched and the persons or 
items to be seized.

  Over the years, the courts have faced claims by the Government that 
the circumstances of a particular investigation require a search 
without notifying the target prior to carrying out the search. In some 
cases, giving notice would compromise the success of the search by 
causing the suspect to flee or destroy evidence. The two leading court 
decisions on so-called surreptitious entry, or what have come to be 
known as ``sneak and peek'' searches, came to very similar conclusions. 
They held that notice of criminal search warrants could be delayed, but 
not omitted entirely. Both the Second Circuit in U.S. v. Villegas and 
the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant 
must provide that notice of the search will be given within 7 days, 
unless extended by the court. Listen to what the Freitas court said 
about such searches:

       We take this position because surreptitious searches and 
     seizures of intangibles strike at the very heart of the 
     interests protected by the Fourth Amendment. The mere thought 
     of strangers walking through and visually examining the 
     center of our privacy interest, our home, arouses our passion 
     for freedom as does nothing else. That passion, the true 
     source of the Fourth Amendment, demands that surreptitious 
     entries be closely circumscribed.

  So when defenders of the PATRIOT Act say that sneak and peek searches 
were commonly approved by courts prior to the PATRIOT Act, they are 
partially correct. Some courts permitted secret searches in very 
limited circumstances, but they also recognized the need for prompt 
notice after the search unless a reason to continue to delay notice was 
demonstrated. And they specifically said that notice had to occur 
within 7 days.
  Section 213 of the PATRIOT Act didn't get this balance right. It 
allowed notice to be delayed for any ``reasonable'' length of time. 
What is ``reasonable''? Information provided by the administration 
about the use of this provision since 2001 indicates that delays of 
months at a time are now becoming commonplace. Those are hardly the 
kind of delays that the courts had been allowing prior to the PATRIOT 
Act. 

  I know that the conference report requirement of notice within 30 
days was a compromise between the Senate and House provisions. And so, 
the Senator from Pennsylvania and others will strongly oppose this 
amendment, if I ever get to offer it. But let me point out that the 
House passed the Otter amendment to completely eliminate the sneak and 
peek provision by a wide bipartisan margin. I hardly think the House 
will balk at this reasonable amendment that allows these sneak and peek 
reviews but says that after 7 days you have to go back and get an 
application for more time, or you have to give notice to the persons 
whose house is intruded upon.
  More importantly, here is the crucial question that no one has been 
able to answer so far. Listen carefully to the arguments made by the 
opponents of the amendment and see if they answer it this time, if we 
ever get a chance to debate it. What possible rationale is there for 
not requiring the Government to go back to a court within 7 days after 
a sneak and peek search and demonstrate a need for continued secrecy? 
What is the problem here? Why insist that the Government get 30 days of 
secrecy, instead of 7 days, without getting an extension from the 
court? Could it be that they think that the courts usually won't agree 
that continued secrecy is needed after the search is conducted, so they 
won't get the 90-day extension? If they have to go back to a court at 
some point, why not go back after 7 days rather than 30? From the point 
of view of the Government, I don't see the big deal.
  It amazes me to hear Senators on the floor saying 7 days, 30 days. 
What is the difference? This is about big government coming into your 
home without your knowledge and saying it doesn't matter that you are 
not given notice in 7 days as opposed to 30 days. I tell you that it 
matters to people in my State, and it would matter to me. Government 
shouldn't be in your house without notice except for very narrowly 
identified circumstances that are consistent with the court decisions 
that allowed the sneak-and-peek provisions in the first place. There is 
a big difference between 1 week and 1 month when it comes to something 
like the Government secretly coming into your home.
  Suppose, for example, that the Government actually searched the wrong 
house. As I mentioned, that is one of the reasons that notice is a 
fourth amendment requirement. The innocent owner of the place that had 
been searched might suspect that someone had broken in his house, and 
he might be living in fear that someone has a key or some other way to 
enter his house. The owner might wonder: When is the intruder going to 
return? Do the locks have to be changed?
  I implore my colleagues to look at this issue from the point of view 
of an innocent person in their own home somewhere in their own home 
State. Why would we make that person wait a month to get an explanation 
rather than a week? Presumably, if the search revealed nothing, and 
especially if the Government realized the mistake and does not intend 
to apply for an extension, it will be no hardship other than a little 
embarrassment for notice to be given within 7 days.
  If, on the other hand, the search was successful and revealed illegal 
activity and notifying the subject would compromise an ongoing 
investigation, the Government should have no trouble at all getting a 
90-day extension of the search warrant. All they have to do is walk 
into the court and tell the judge: Judge, we found something, and we 
are now keeping the place under surveillance because there is ongoing 
criminal activity taking place there, so give us more time before we 
serve the search warrant.
  That is all you have to say. What is so hard about that? We all know 
the judges will give them that. It is perfectly reasonable.
  The Senate bill is already a compromise on this very controversial 
provision. There is no good reason not to adopt the Senate's position. 
I have pointed this out repeatedly and no one has ever come to the 
Senate and come up with any explanation of why the Government cannot 
come back to the court within 7 days of executing the search. The 
Senate provision was what the courts required prior to the PATRIOT Act. 
It worked fine then. It can work now.
  Let me make one final point about sneak-and-peek warrants. Do not be 
fooled for a minute that this power has anything to do with just 
investigating terrorism or espionage. It does not. Section 213 is a 
criminal provision that applies in any kind of criminal investigation. 
In fact, most sneak-and-peek warrants are issued for drug 
investigations. So why do I say they are not needed in terrorism 
investigations? Because FISA, the Foreign Intelligence Surveillance 
Act, can also apply to these investigations. FISA search warrants are 
always executed in secret and never require notice--not in 7 days, not 
in 30 days, not in 180 days, not ever. So

[[Page S1385]]

if you do not want to give notice of a search in a terrorism 
investigation, you can get a FISA warrant. So any argument that 
adopting this amendment will interfere with sensitive terrorism 
investigations is false. It is false, plain and simple.
  I look forward to hearing the response of the opponents on this 
issue. I am beginning to lose faith I will ever hear from them. But I 
also urge my colleagues to listen carefully: Will anyone come forward 
and argue convincingly that 7 days, which the entire Senate approved in 
July, is too short of a period of time? If not, we should adopt this 
amendment.
  I have had the opportunity the last few minutes to describe the four 
remaining amendments I have filed. I have tried to explain them 
clearly. These are provisions that are either consistent with or the 
same as provisions that we approved in the Senate last year by 
unanimous vote in the Judiciary Committee and in a unanimous consent 
agreement in the Senate, which not one single Senator, including the 
majority leader, objected to. Or they were central to the concerns 
raised by so many Senators late last year. So these are obviously not 
extreme ideas. They are very reasonable ideas.
  The idea that right after the motion to proceed was approved the 
majority leader would come and ``fill up the tree,'' which means 
preventing me from offering these amendments on the Senate floor, is a 
disservice to the Senate and it is a disservice to the American people. 
The American people are concerned about this legislation. Whether 
Members of this Senate want to admit it, there is a lot of concern 
about this legislation. The goal should be to make sure that the law 
enforcement in our country has the tools it needs to fight those who 
are involved in terrorism or spying. But the goal should also be to 
reassure the American people that we are not somehow trying to take 
away the rights and freedoms and privacy of perfectly innocent 
Americans. I would think all of us would want that to be the way this 
legislation is perceived.
  The act of preventing reasonable amendments, under a limited 
timeframe, on provisions that have already been approved by the Senate 
or that so many Senators have raised concerns about, is a guarantee of 
causing anxiety and concern on the part of the American people that 
something is wrong, that somehow the power grab by this administration 
is out of control.
  I implore my colleagues to join me in imploring the majority leader 
to allow us to offer these reasonable amendments. That is not only the 
right thing to do, it is our responsibility, as Members of this Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. TALENT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TALENT. Mr. President, I have come to the Senate floor this 
afternoon to speak for a few minutes about a specific provision, a 
significant provision in the PATRIOT Act, the Combat Meth Act. This is 
the most comprehensive antimethamphetamine legislation ever to be 
introduced, much less passed, in the Senate. I am hopeful that it will 
be passed in the Senate, of course, in this legislation and be sent to 
the President's desk for his signature and then for implementation.
  Methamphetamine is the worst drug threat that I have confronted in my 
20 years in public life. When I say that, I hope it has some impression 
on people. But when career law enforcement officers stand up in various 
forums and say that, I hope people are afraid because this drug should 
make us afraid. It is almost the ``perfect storm'' of drugs. It is 
almost immediately addictive.
  Most people who try methamphetamine get addicted the first time they 
try it. There is no such thing as casual or recreational use of this 
drug. It is very damaging to the person who uses it. It changes the 
structure of the brain. It turns people who use it into more 
aggressive-type individuals. Other drugs, as bad as they are, tend to 
make people more passive. Methamphetamine makes them paranoid. I was 
speaking with another Senator about this bill a few minutes ago over 
the telephone, and he mentioned to me that in his State one woman who 
had been a meth user told him that when she was high on meth, she 
thought her 3-year-old was trying to kill her. This is not uncommon. 
There is almost no known medical cure for it.
  Our substance abuse counselors do a heroic job and people have gotten 
off of methamphetamine, but I do want to state that we don't have a 
methadone for methamphetamine. On top of all of these things, as bad as 
they are by themselves, this is a drug which, to this point, has not 
only been consumed and sold in our neighborhoods, as other drugs are, 
it has been primarily, in many States, made in our own neighborhoods in 
local labs.
  The process for making methamphetamine is highly dangerous and toxic. 
So in addition to all of the problems that go with addiction to deadly 
drugs, we have, on top of that, a whole set of other problems that you 
don't have with other drugs that are caused by the fact that 
methamphetamine is actually made in our neighborhoods. Since the 
process for making it is toxic, homes in which methamphetamine is made, 
or in cars--because sometimes they make it in vans--they become toxic 
waste dumps, huge environmental waste problems for local officials to 
clean up. The fact that the drug is made in home labs creates a whole 
new set of problems for kids. It is bad enough for a kid if they are 
growing up in a home where drugs are being used, but if methamphetamine 
is being cooked, the children become contaminated with toxins.
  When they pull kids out of those environments, they have to 
decontaminate them. It can cause permanent health problems. I had a St. 
Louis County firefighting officer tell me that half of the vehicle 
fires they were fighting were methamphetamine related. Those are 
chemical fires. It has strained local budgets to the breaking point 
because our counties, in addition to all of the other law enforcement 
activity, have had to try to knock down, in some cases, hundreds of 
labs in rural counties. In many cases, there are more rural counties 
where they have 5, 6, 8, 10 or 12 deputies trying to patrol the whole 
county. It is the ``perfect storm'' of drugs.
  The only silver lining in the cloud is the fact that in order to make 
methamphetamine, you must have pseudoephedrine. There are lots of ways 
to make it, but you need pseudoephedrine for making it. For local 
cooks, the only way to get pseudoephedrine is through cold medicines, 
antihistamines. This opened up the possibility for stopping the local 
labs that take advantage of this.
  Before going any further--I only have a few minutes--I have to stop 
and congratulate and pay tribute to Senator Feinstein. This bill that 
we are going to pass--I hope and believe--within the next week or 2, 
stands on the shoulders of the work that she has put in since the mid-
1990s, when she recognized the danger of pseudoephedrine. She and I are 
the chief cosponsors of the measure in the Senate. She has been a 
pleasure to work with, and her knowledge and expertise were important 
in getting the bill this far. I think she can accurately regard this 
bill as a personal triumph.
  What does the legislation do? It is a comprehensive approach. There 
are a number of things in it. It will put pseudoephedrine behind the 
counters in pharmacies and stores. Legitimate consumers will still be 
able to get it, but if you are buying medicines containing 
pseudoephedrine without a prescription, you are going to have to show 
an ID and sign a log book, and you won't be able to buy more than 3.6 
grams of cold medicine at a time, and 9 grams in one month, which is 
far more than the average use of any adult for cold medicine anyway. 
The States that have experimented and have had measures such as this--
and Oklahoma is a leader, and Iowa has been a leader, and they deserve 
credit. My home State of Missouri also has a law. The States that have 
passed laws such as this have experienced anywhere from a 70- to an 80-
percent reduction in local labs.
  Senator Feinstein and I and all the cosponsors of the bill are 
hopeful that we will get the same results nationally, and we will 
protect our people, moreover, from people crossing State lines

[[Page S1386]]

to buy the pseudoephedrine in jurisdictions that don't have this 
legislation. We had a case in Missouri recently when a couple of meth 
cooks left Franklin County, MO, in eastern Missouri, drove across 
Illinois into Indiana and bought over 100 packages of cold medicine in 
Indiana, which is about 140 to 150 grams of pseudoephedrine; they were 
in the process of driving it back to Franklin County to support the 
local lab structure there, when they were caught by the Indiana 
troopers. We are grateful for those troopers.

  That is what is going to go on until we have a national standard. 
This bill provides a national standard that will be effective 30 days 
after Presidential signature, and we can expect a 70- to 80-percent 
reduction in local labs around the country as a result of this.
  There are a number of other provisions in the Combat Meth Act that 
are important, which will provide critical resources to local law 
enforcement to do the cleanup. When you cook meth in a home, it becomes 
a toxic waste dump, costing thousands of dollars to clean up. Thousands 
of our deputies and sheriffs and police officers have had to become 
trained in environmental cleanup because of this drug. We are going to 
provide additional resources to help them. It will enhance enforcement 
of meth trafficking by requiring additional reporting and certification 
from countries that export large amounts of pseudoephedrine. It is 
going to help local social services help the kids who are tragically 
trapped in this environment. There is money for drug-endangered 
children rapid response teams. We can help localities with that. We 
provide extra tools to prosecute meth cooks and traffickers.
  It is a comprehensive measure, but it is by no means all that we need 
to do. This is a significant first step, and Senator Feinstein and I 
believe it will at least substantially eliminate these labs, which then 
will eliminate a whole set of enormous problems above and beyond the 
problems caused by addiction to methamphetamine.
  We are continuing to work with the State Department, the DEA, and 
other agencies to try to interdict shipments of methamphetamine or 
pseudoephedrine from abroad. We need to work with relevant committees 
to come up with a new kind of methamphetamine technical assistance 
center in Washington, which can help develop better protocols and 
assistance to help those people who are on meth and want to get off of 
it. I think it is an important part of the drug war to say to people: 
Look, if you are addicted to a drug and you want help, we want to help 
you. If what you want to do is cook this drug or make it and sell it to 
our kids, we are going to stop you.
  That is a piece that we need to work on, and I think we will work on 
it. We have had assurances from the relevant Committee chairs and 
ranking members that we can do that. We need to pass this bill now. I 
am grateful--and I know Senator Feinstein is as well--to the leaders in 
both parties for their bipartisan leadership and to the Judiciary 
Committee, Senator Specter and Senator Leahy, for allowing us to put 
this bill on the PATRIOT Act. We are grateful, also, to the Senate for 
its unanimous support of this bill over the last few months.
  Mr. President, we can do important things. We can do good things for 
people, and we can do them the right way. That is how I look at the 
Combat Meth Act. It is going to make a difference immediately in 
neighborhoods and communities around the country, and it has been done 
on a thoroughly bipartisan basis from the beginning, when Senator 
Feinstein and I cosponsored it.
  So I am pleased to be here to speak on behalf of the bill as a whole 
and also on behalf of this specific provision. I hope we can move 
expeditiously to final passage so that this important legislation can 
be signed by the President and can become law.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Talent). Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, I rise to speak about S. 2271, Senator 
Sununu's bill to amend the PATRIOT Act. I commend Senator John Sununu 
of New Hampshire for his extraordinary efforts on this bill.
  For over 2 years he has been part of a bipartisan coalition, which I 
have been happy to join him in, working to reform the PATRIOT Act. We 
support the PATRIOT Act. We want it to include checks and balances to 
protect the constitutional rights of Americans. In other words, we want 
to improve the PATRIOT Act, not abandon it.
  We came together across party lines for this effort because our 
national security and constitutional rights are important to every 
American. The PATRIOT Act should not be a political football.
  When we launched this effort 2 years ago, the administration said 
changing even one word in the PATRIOT Act was unacceptable. I have said 
that when it comes to writing laws, with the exception of the Ten 
Commandments which were handed down on stone tablets, there are no 
perfect laws; we should always try to improve them.
  Now, with Senator Sununu's bill and the PATRIOT Act conference 
report, we will reauthorize the PATRIOT Act with significant reforms, 
reforms we proposed as long as 2 years ago.
  Let me say up front this outcome is far from perfect. There is still 
a lot of work to be done.
  But the administration was willing to let the PATRIOT Act expire 
rather than accept some of the reforms we proposed. We will not let 
that happen. The PATRIOT Act will not expire on our watch.
  We are going to reauthorize the PATRIOT Act with new checks and 
balances that will help protect innocent Americans, but we will not 
stop our fight for additional necessary reforms.
  Let me take a few minutes to review the history of the PATRIOT Act. 
During a time of national crisis, shortly after September 11, the 
President came to us, asking Congress for new tools and new authority 
to fight terrorism. While the ruins of the World Trade Center were 
still smoldering, Congress responded on a bipartisan basis, with 
dispatch, to give this administration what they wanted to be able to 
fight terrorism. We passed the PATRIOT Act with overwhelming bipartisan 
support.
  We understood it was a unique moment in history. We had to act 
quickly. Even then we were concerned that perhaps the PATRIOT Act went 
too far. So we included sunsets so we could review this law after four 
years and reflect on whether we had made the right decision.
  There is now a widespread, bipartisan consensus that the PATRIOT Act 
went too far in several specific areas. The vast majority of the 
provisions of the PATRIOT Act are not controversial. But in a few 
specific areas, there is broad agreement that the PATRIOT Act does not 
include adequate checks and balances to protect the civil liberties of 
innocent Americans.
  As a result, Senator Larry Craig and I introduced the Security and 
Freedom Enhancement Act, also known as the SAFE Act, to address these 
specific areas of concern. We were joined by our colleagues Senators 
Sununu, Feingold, Murkowski, and Salazar.
  We crossed a broad and wide political divide to come together. This 
is really the gathering of political odd fellows, but we all shared the 
same goal: protecting constitutional freedoms while still protecting 
the security of America.
  The administration threatened to veto the SAFE Act if it ever came 
before them. They claimed that it would ``eliminate'' some PATRIOT Act 
powers. In fact, the SAFE Act would not repeal a single provision of 
the PATRIOT Act. It would retain the expanded powers created by the 
PATRIOT Act but place important limits on these powers.
  The bill attracted an enormous amount of support from across the 
political spectrum, from the most conservative to the most liberal 
groups in Washington. I have never seen another bill like our SAFE Act 
that attracted that kind of support.
  It also was supported by the American Library Association because it 
would prevent the Government from snooping through the library records 
of innocent Americans.
  I thank America's librarians for their efforts and tell them that it 
paid off.

[[Page S1387]]

They were not taking a hysterical position, as some in the 
administration branded it. They were taking the right position--
standing up for the freedoms we hold dear in this country.
  The conference report, as amended by the Sununu bill, includes a 
number of checks and balances that are based on provisions of the SAFE 
Act.
  Under the PATRIOT Act, the FBI is now permitted to obtain a John Doe 
roving wiretap, a sweeping authority never before authorized by 
Congress. A John Doe roving wiretap does not specify the person or 
phone to be wiretapped. In other words, the FBI can obtain a wiretap 
without telling a court whom they want to wiretap or where they want to 
wiretap.
  Like the SAFE Act, the PATRIOT Act conference report would continue 
to allow roving wiretaps, but it places a reasonable limit on these so-
called John Doe roving wiretaps. In order to obtain a John Doe roving 
wiretap, the Government would now be required to describe the specific 
target of the wiretap to the judge who issues the wiretap order. This 
will help protect innocent Americans.
  Under the PATRIOT Act, the FBI can search your home without telling 
you until some later date. These sneak-and-peek searches are not 
limited to terrorism cases.
  Like the SAFE Act, the conference report would require the Government 
to notify a person who is subjected to a sneak-and-peek search within a 
specific period of time, 30 days, rather than the undefined delay 
currently permitted by the PATRIOT Act. The court could allow 
additional delays of notice under compelling circumstances.
  Section 215 of the PATRIOT Act is often called the library records 
provision. This section has been the focus of much of our efforts.
  Under section 215, the FBI can obtain your library, medical, 
financial, or gun records simply by claiming they are seeking the 
records for a terrorism investigation. If the FBI makes this claim, the 
court must issue an order. It has no ability to even question the FBI 
about why they want to look into your sensitive personal information. 
This type of court approval is nothing more than a rubberstamp.
  Defenders of this section often compare to it a subpoena by a grand 
jury in a criminal case, but it couldn't be more different. A person 
who receives a grand jury subpoena can challenge it in court. A person 
who receives a section 215 order cannot go to a judge to challenge the 
order, even if he believes his rights have been violated.
  Courts have held that it is unconstitutional to deny someone the 
right to go to court to challenge an order like this.
  Also, unlike a person who receives a grand jury subpoena, the 
recipient of a section 215 gag order is subject to an automatic 
permanent gag order.
  And a person who receives a Section 215 order has no right to go to a 
judge to challenge the gag order. Courts have held that gag orders that 
cannot be challenged in court violate the first amendment.
  Like the SAFE Act, the PATRIOT Act conference report, as amended by 
Senator Sununu's bill, will place some reasonable checks on section 
215.
  In order to obtain a section 215 order, the Government will now have 
to convince a judge that they have reasonable grounds to believe the 
information they seek is relevant to a terrorism investigation. The 
court will have the ability to question the FBI before issuing a 
section 215 order.
  This is an improvement, but I'm still concerned that the Government 
is not required to show a connection to a suspected terrorist in order 
to obtain section 215 order. I will speak more about this later.
  The FBI will also be required to follow so-called minimization 
procedures. These procedures should help to protect innocent Americans 
by limiting the retention and dissemination of information obtained 
with section 215 orders.
  The recipient of section 215 order will now have the ability to 
consult with an attorney.
  Judicial oversight will also be enhanced. The recipient of a section 
215 order will now have the right to challenge the order in court on 
the same grounds as he could challenge a grand jury subpoena.
  And, if Senator Sununu's bill passes, the recipient of a section 215 
order will also have the right to challenge the gag order in court.
  The PATRIOT Act expanded the Government's authority to use national 
security letters which are also known as NSLs.
  An NSL is a type of administrative subpoena. It is a document signed 
by an FBI agent that requires businesses to disclose the sensitive 
personal records of their customers.
  An NSL does not require the approval of a judge or a grand jury. A 
business that receives an NSL is subject to an automatic, permanent gag 
order.
  As with section 215 orders, a person cannot go to a judge to 
challenge an NSL or the NSL's gag order, and he can't consult with an 
attorney.
  Like the SAFE Act, the PATRIOT Act conference report, as amended by 
Senator Sununu's bill, will place some reasonable checks on NSLs.
  Most important, the Sununu bill clarifies that the government cannot 
issue a national security letter to a library that is functioning in 
its traditional role, which includes providing computer terminals with 
basic Internet access.
  As with section 215 orders, the recipient of an NSL will now have the 
right to consult with an attorney, and the right to challenge the NSL 
or the NSL's gag order in court.
  Like the SAFE Act, the conference report will also require public 
reporting on the use of PATRIOT Act authorities, including the number 
section 215 orders and NSLs issued by the Government.
  Finally, the conference report includes a sunset on three provisions 
of the law, including section 215, so Congress will again have an 
opportunity to review the PATRIOT Act at the end of 2009.
  As I said earlier, the conference report is not perfect. That's the 
nature of a compromise.
  I am especially concerned about the need for additional checks on 
section 215 and national security letters.
  The conference report would allow the Government to use section 215 
orders or NSLs to obtain sensitive personal information without showing 
some connection to a suspected terrorist. I fear that this could lead 
to Government fishing expeditions that target innocent Americans.
  In this country, you have the right to be left alone by the 
Government unless you have done something to warrant scrutiny.
  When the FBI is conducting a terrorism investigation they shouldn't 
be able to snoop through your library, medical, or gun records unless 
you have some connection to a suspected terrorist.
  I am also very concerned about unnecessary limits on judicial review 
of section 215 national security letter gag orders. The conference 
report requires the court to accept the Government's claim that a gag 
order should not be lifted, unless the court determines the Government 
is acting in bad faith. This will make it difficult to get meaningful 
judicial review of a gag order.
  As I said earlier, our bipartisan coalition is going to keep working 
for additional reforms to the PATRIOT Act.
  In fact, Senator Craig, Senator Sununu and I plan to introduce an 
updated version of the SAFE Act to address the problems that still 
exist with the PATRIOT Act.
  Our great country was founded by people who fled a government that 
repressed their freedom in the name of security. The Founders wanted to 
ensure that the United States Government would respect its citizens' 
liberties, even during times of war. That's why there is no wartime 
exception in the Constitution.
  The 9/11 Commission said it best: The choice between security and 
liberty is a false one. Our bipartisan coalition believes the PATRIOT 
Act can be revised to better protect civil liberties. We believe it is 
possible for Republicans and Democrats to come together to protect our 
fundamental constitutional rights and give the Government the powers it 
needs to fight terrorism. We believe we can be safe and free.
  That's why we're going to reauthorize the PATRIOT Act with new checks 
and balances. And that's why we'll keep fighting for additional reforms 
to the PATRIOT Act.
  Senators Craig, Sununu, and others have joined me in improving the 
PATRIOT Act as originally written. There

[[Page S1388]]

are still serious problems with the PATRIOT Act, but I think this 
conference report, as amended by Senator Sununu's bill, is a positive 
step forward. That is why I am supporting it.
  I promise, as they say, eternal vigilance, watching this 
administration and every administration to make certain they don't go 
too far. If they overstep, if they step into areas of privacy and 
constitutional rights, I will speak out and do my best to change the 
PATRIOT Act and make it a better law.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Iowa.


                 Report on Fda Approval Process for Vns

  Mr. GRASSLEY. Mr. President, I want to address my fellow Senators, in 
cooperation with my friend, Senator Baucus from Montana, on an issue 
that our respective staffs have been working on together for a long 
time. As chairman of the Finance Committee and as ranking member, we 
are releasing today a report. We come to the floor with our duties in 
mind to our constituents, to Medicaid and Medicare beneficiaries, and 
to all Americans, to speak of urgent matters that should concern all of 
us.
  For more than 2 years, I have followed, with increasing concern, the 
performance of the Food and Drug Administration. It seems as though 
every week, if not every day, some new danger or risk is brought to 
light about an FDA-approved drug or device. As chairman and ranking 
member of the committee, Senator Baucus and I have a responsibility to 
American taxpayers to ensure that Medicare and Medicaid programs pay 
for medical products that have been appropriately approved in 
accordance with all laws and regulations. Whether a product is safe, 
whether a product is effective is not only a major public safety 
concern; it also has important financial concerns.
  We understand there is a human element to the Food and Drug 
Administration's approval process. As a society, we recognize the 
anguish of families who must rely on the development of innovative, 
experimental, new medical products and treatments that may or may not 
save the life of a loved one. Our Nation is lucky to have a private 
marketplace that is incredibly resourceful and prolific in the field of 
medicine. An integral role of the Food and Drug Administration is to 
get these potentially lifesaving products to the market without undue 
delay. We also have a Government-regulated system where patients have 
the option to receive potentially lifesaving but unproven products by 
participating voluntarily in clinical trials. In the end, however, our 
Nation's well-founded medical system, despite its weaknesses, must 
always rest on sound science.
  The report we are releasing today focuses on the FDA's approval 
process for medical devices. It is indisputable that all medical 
devices carry risks, but Food and Drug Administration approval is still 
considered the gold standard for safety and effectiveness. However, our 
committee staff report raises legitimate questions about the FDA's 
decision to approve a specific medical device. Last February, a number 
of concerns were raised to our committee about an implantable device 
called the vegus nerve stimulator or VNS, as I will refer to it. This 
product, VNS, is manufactured by a company called Cyberonics. Senator 
Baucus and I asked our committee staff to review the concerns that were 
given to us and report their findings. This report has three major 
findings which I will summarize briefly.
  First, the Food and Drug Administration approved VNS for treatment-
resistant depression, a new indication for this surgically implanted 
device. That was based upon a senior manager overruling more than 20 
Food and Drug Administration scientists, medical, and safety officers, 
as well as managers, who reviewed the data on VNS. The high-level 
official approved the device despite a resolute conclusion by many at 
the FDA that the device did not demonstrate a reasonable assurance of 
safety and effectiveness.
  Second, the Food and Drug Administration has not made public the 
level of internal dissent involved in this device approval, despite the 
fact that the FDA has publicized differences of scientific opinion 
within the agency when it has announced other controversial regulatory 
decisions.
  Third, the Food and Drug Administration has not ensured that the 
public has all the accurate, science-based information on the safety 
and effectiveness of the VNS for treatment-resistant depression. So 
health care providers, relying on the FDA's information about this 
device, may not be able to convey complete risk information to each 
patient.
  In the end, this senior Food and Drug Administration official not 
only overruled more than 20 Food and Drug Administration employees, but 
he stated to our committee staff that the public would not be made 
aware of the scientific dissent over whether the device is reasonably 
safe and effective. Until today, this official's detailed conclusions 
remain confidential and unavailable to the public. We are releasing 
these confidential conclusions in the appendix to the report. Some of 
his own conclusions raise serious questions in our minds. For example, 
I quote from his override memorandum:

       I think it needs to be stated clearly and unambiguously 
     that [certain VNS data] failed to reach, or even come close 
     to reaching, statistical significance with respect to its 
     primary endpoint. I think that one has to conclude that, 
     based on [that] data, either the device has no effect, or, if 
     it does have an effect, that in order to measure that effect 
     a longer period of follow-up is required.

  The events and circumstances surrounding the Food and Drug 
Administration's review and approval of VNS for treatment-resistant 
depression, which you will find detailed in this report we are 
releasing, raises critical questions about the Food and Drug 
Administration's so-called ``authoritative'' approval process. I am 
greatly concerned that the Food and Drug Administration standard for 
approval may not have been met here. If that is the case, it raises 
further difficult questions, including whether Medicare and Medicaid 
dollars should be used to pay for this device now.
  Accordingly, we are forwarding the report to Secretary Leavitt, 
Administrator McClellan, and Acting Commissioner von Eschenbach for 
their consideration and comment. These are difficult matters that 
deserve their full attention.
  Before I close, I commend the commitment and dedication of the more 
than 20 FDA scientists who tried to do the right thing in this case, as 
they probably do in every case, and not stray from evidence-based 
science. I applaud their effort on behalf of the American people.
  I ask unanimous consent that the executive summary of the report be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                          I. Executive Summary

       The United States Senate Committee on Finance (Committee) 
     has exclusive jurisdiction over the Medicare and Medicaid 
     programs. Accordingly, the Committee has a responsibility to 
     the more than 80 million Americans who receive health care 
     coverage under Medicare and Medicaid to oversee the proper 
     administration of these programs, including the payment for 
     medical devices regulated by the Food and Drug Administration 
     (FDA). Given the rising health care costs in this country, 
     and more importantly, in the interest of public health and 
     safety, Medicare and Medicaid dollars should be spent on 
     drugs and devices that have been appropriately deemed safe 
     and effective for use by the FDA, in accordance with all laws 
     and regulations.
       In February 2005, Senator Charles Grassley (R-IA) and 
     Senator Max Baucus (D-MT), Chairman and Ranking Member of the 
     Committee, initiated an inquiry into the FDA's handling of 
     Cyberonics, Inc.'s (Cyberonics) pre-market approval 
     application to add a new indication--treatment-resistant 
     depression (TRD)-to Cyberonics's Vagus Nerve Stimulation 
     (VNS) Therapy System, an implanted pulse generator. The 
     Chairman and Ranking Member initiated the inquiry in response 
     to concerns that were raised regarding Cyberonics's VNS 
     Therapy System for TRD. On July 15, 2005, the FDA approved 
     the device for TRD.
       The investigative staff of the Committee reviewed documents 
     and information obtained and received from the FDA and 
     Cyberonics and found the following:
       As the federal agency charged by Congress with ensuring 
     that devices are safe and effective, the FDA approved the VNS 
     Therapy System for TRD based upon a senior official 
     overruling the comprehensive scientific evaluation of more 
     than 20 FDA scientists, medical officers, and management 
     staff who reviewed Cyberonic's application over the course of 
     about 15 months. The official approved the device despite the 
     conclusion of the FDA reviewers that the data provided by 
     Cyberonics in support of its application for a

[[Page S1389]]

     new indication did not demonstrate a reasonable assurance of 
     safety and effectiveness sufficient for approval of the 
     device for TRD.
       The FDA's formal conclusions on safety and effectiveness do 
     not disclose to doctors, patients or the general public the 
     scientific dissent within the FDA regarding the effectiveness 
     of the VNS Therapy System for TRD. The FDA has publicized 
     differences of scientific opinion within the agency when it 
     has announced other controversial regulatory decisions. 
     Throughout the review of Cyberonics's application, the team 
     of FDA scientists, medical officers, and management staff 
     involved recommended that the device not be approved for TRD. 
     However, at every stage of the review, the team was 
     instructed by the FDA official, who ultimately made the 
     decision to approve the device, to proceed with the next 
     stage of pre-market review.
       The FDA has not ensured that the public has all of the 
     accurate, science-based information regarding the VNS Therapy 
     System for TRD it needs. Health care providers relying on the 
     FDA's public information on the safety and effectiveness of 
     this device may not be able to convey complete risk 
     information to their patients, because not all of the 
     relevant findings and conclusions regarding the VNS Therapy 
     System have been made available publicly.
       The FDA has an important mission:
       The FDA is responsible for protecting the public health by 
     assuring the safety, efficacy, and security of human and 
     veterinary drugs, biological products, medical devices, our 
     nation's food supply, cosmetics, and products that emit 
     radiation. The FDA is also responsible for advancing the 
     public health by helping to speed innovations that make 
     medicines and foods more effective, safer, and more 
     affordable; and helping the public get the accurate, science-
     based information they need to use medicines and foods to 
     improve their health.
       As part of that mission, the FDA weighs the risks and 
     benefits of a product, in this case a medical device, to 
     determine if the product is reasonably safe and effective for 
     use.
       The facts and circumstances surrounding the FDA's approval 
     process for the VNS Therapy System for TRD raise legitimate 
     questions about the FDA's decision to approve that device for 
     the treatment of TRD. While all implantable medical devices 
     carry risks, it is questionable whether or not the VNS 
     Therapy System for TRD met the agency's standard for safety 
     and effectiveness. The FDA's approval process requires a 
     comprehensive scientific evaluation of the product's benefits 
     and risks, including scientifically sound data supporting an 
     application for approval. Otherwise health care providers and 
     insurers as well as patients may question the integrity and 
     reliability of the FDA's assessment of the safety and 
     effectiveness of an approved product. In the case of VNS 
     Therapy for TRD, the FDA reviewers concluded that the data 
     limitations in Cyberonics's application could only be 
     addressed by conducting a new study prior to approval. 
     However, in the present case, instead of relying on the 
     comprehensive scientific evaluation of its scientists and 
     medical officers, it appears that the FDA lowered its 
     threshold for evidence of effectiveness. Contrary to the 
     recommendations of the FDA reviewers, the FDA approved the 
     VNS Therapy System for TRD and allowed Cyberonics to test its 
     device post-approval.
       In addition, given the significant scientific dissent 
     within the FDA regarding the approval of the VNS Therapy 
     System for TRD, the FDA's lack of transparency with respect 
     to its review of the device is particularly troubling. The 
     FDA has limited the kind and quality of information publicly 
     available to patients and their doctors and deprived them of 
     information that may be relevant to their own risk-benefit 
     analysis. Patients and their doctors should have access to 
     all relevant findings and conclusions from the comprehensive 
     scientific evaluation of the safety and effectiveness of the 
     VNS Therapy System for TRD to enable them to make fully 
     informed health care decisions.
  Mr. GRASSLEY. I yield the floor for my colleague.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BAUCUS. Mr. President, I join the chairman of the Finance 
Committee, Senator Grassley, in commending our Finance Committee staff 
on the report that we release today. This report deals with an 
important public safety matter. The Food and Drug Administration 
approval process has long been considered the gold standard in this 
country. We rely on the FDA to review drugs and to review medical 
devices. We rely on the FDA to tell us, by providing a seal of 
approval, that drugs and devices are safe and that they are effective.
  While all drugs and devices carry some risk, some are more risky than 
others. But if the FDA determines a drug or device is safe to bring to 
the market, Americans generally feel we can use the treatment without 
undue concern. We Americans rely on the FDA to ensure that 
manufacturers provide sufficient warnings of their products' risks so 
that health care providers and patients can make informed health care 
decisions.
  The FDA has a complex approval process. A review team, including 
scientists, doctors, and specialists, surveys all the data and makes a 
recommendation regarding whether to approve a drug or device. The 
review team then forwards its recommendation to management for review. 
This process can be lengthy and intense.
  Last year, concerns were brought to the Finance Committee regarding 
how the review process had unfolded in the case of a device known as 
the VNS Therapy system. Cyberonics makes the VNS system and was seeking 
approval of the device for use in patients with treatment-resistant 
depression. Chairman Grassley and I asked our committee staffs to look 
into what had gone on.
  The Finance Committee has the responsibility for the Medicare and 
Medicaid Programs and the millions of Americans who receive health 
care, including the use of safe and proper medical devices. Medicare 
and Medicaid only pay for drugs and devices which FDA has approved. So 
approval affects patients' budgets and the Federal budget, as well.
  In the case of the VNS Therapy system, the FDA review team was 
comprised of more than a dozen FDA staff, including doctors, 
scientists, safety officers, and statisticians. This review team 
unanimously recommended against FDA approval. The team argued that the 
data were insufficient to justify approval and that additional 
premarket testing was in order. Three levels of management concurred 
with the team's recommendation. The uppermost manager--the Director of 
the Center for Devices--disagreed. With the stroke of a pen, he 
overruled the analysis and conclusions of his staff, and he approved 
the device. Now the FDA seal of approval has been attached to that VNS 
Therapy system by one person, over the objections of several technical 
experts who studied the device.
  Without this report from the Finance Committee, the public would not 
know that the team of scientists and doctors who reviewed this device 
did not believe it should be approved. Without this report, there would 
be no way for providers and patients to make fully informed health care 
decisions because they would not be aware of all of the risks.
  In short, we present this report out of a concern for public safety. 
We believe that doctors and patients considering this device should 
know that it was approved over the objection of a team of seasoned 
scientists. It is important for the public to know what the FDA 
scientists and doctors thought about the risk to which patients would 
be exposed. The FDA has not made public any information regarding the 
level of scientific dissent. So I am glad we have this report.
  I am greatly concerned about this unusual turn of events at the FDA. 
I hope this is not a sign of things to come. I hope that FDA approval 
can remain the gold standard, and I hope Medicare and Medicaid can 
continue to pay for FDA-approved products knowing they are safe.
  I thank Chairman Grassley for his work. He has worked diligently, as 
he always does, particularly when wrongs should be exposed. I 
appreciate it when we can work together to improve the efficacy and 
safety of American health care.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  (The remarks of Mr. Baucus and Mr. Durbin pertaining to the 
introduction of S. 2303 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, at this moment, I wish to address the bill 
pending before the Senate, and that is S. 2271.
  I commend Senator John Sununu of New Hampshire, who is here in the 
Chamber. Were it not for his hard work, we would not be here today. For 
weeks, while many of us were doing other things back home, Senator 
Sununu was working assiduously with the White House to find a way to 
address some very vexing and challenging issues when it came to 
modifying the PATRIOT Act. He has done an excellent job. I commend him 
and tell him that I have enjoyed working with him

[[Page S1390]]

over the last 2 years, where we have crossed party lines and tried to 
find ways to keep the PATRIOT Act as a tool to make America safe but 
also at the same time to protect our basic liberties.
  Every step of the way, as we considered changes to the PATRIOT Act, 
we have been supported by our Nation's librarians. These are wonderful 
men and women--professionals--who are dedicated to the libraries across 
America, which are such rich resources. I thank the librarians of 
America, especially for their heroic efforts to amend the PATRIOT Act 
in a responsible way and, equally as important, to defend our 
Constitution.
  I understand that section 5 of Senator Sununu's bill, S. 2271, will 
help protect the privacy of Americans' library records. I ask the 
indulgence of the Chair that I might enter into a colloquy with Senator 
Sununu relative to section 5. I would like to ask Senator Sununu, 
through the Chair, if he could explain to me what section 5 will 
accomplish.

  Mr. SUNUNU. Mr. President, I am pleased to be on the floor today and 
pleased to be able to see the light at the end of the tunnel on PATRIOT 
reauthorization, thanks to the work of Senator Durbin and others. We 
have legislation before us that will make the adjustments to the 
PATRIOT Act reauthorization conference report mentioned by the Senator 
from Illinois. He specifically mentioned section 5 of our legislation. 
As he began to describe, section 5 is intended to clarify current law 
regarding the applicability of National Security Letters to libraries.
  A National Security Letter is a type of administrative subpoena, a 
powerful tool available to law enforcement officials, to get access to 
documents. It is a document signed by an FBI agent that requires a 
business to provide certain kinds of personal records on their 
customers to the Government. These subpoenas are not approved by a 
judge before being issued.
  What we did in this legislation is add clarifying language that 
states that libraries operating in their traditional functions: lending 
books, providing access to digital books or periodicals in digital 
format, and providing basic access to the Internet would not be subject 
to a national security letter. There is no National Security Letter 
statute existing in current law that permits the FBI explicitly to 
obtain library records. But, as was indicated by the Senator from 
Illinois, librarians have been concerned that existing National 
Security Letter authority is vague enough so that it could be used to 
allow the Government to treat libraries as they do communication 
service providers such as a telephone company or a traditional Internet 
service provider from whom consumers would go out and get their access 
to the Internet and send and receive e-mail.
  Section 5 clarifies, as I indicated, that a library providing basic 
Internet access would not be subject to a national security letter, 
simply by virtue of making that access available to the public.
  Mr. DURBIN. I thank the Senator from New Hampshire. It is my 
understanding that most public libraries, as he explained, offer 
Internet access to the public. Because of this, they are concerned that 
the Government might consider them to be communications service 
providers similar to the traditional providers, such as AT&T, Verizon, 
and AOL.
  So if I understand it correctly, your bill clarifies that libraries, 
simply because they provide basic Internet access, are not 
communications service providers under the law and are not subject to 
national security letters as a result. I ask the Senator from New 
Hampshire, through the Chair, is that a correct conclusion?
  Mr. SUNUNU. Mr. President, I absolutely believe that the conclusion 
of the Senator from Illinois is correct. A library providing basic 
Internet access would not be subject to a National Security Letter as a 
result of that particular service and other services that are very much 
in keeping with the traditional role of libraries.
  Some have noted or may note that basic Internet access gives library 
patrons the ability to send and receive e-mail by, for example, 
accessing an Internet-based e-mail service. But in that case, it is the 
Web site operator who is providing the communication service--the 
Internet communication service provider itself--and not the library, 
which is simply making available a computer with access to the 
Internet.
  So I certainly share the concerns of the Senator from Illinois and 
others who have worked very long and hard on this and other provisions. 
I think it does add clarity to the law as he described, in addition to 
providing other improvements to the PATRIOT Act as they relate to civil 
liberty protections. All along, this has been about providing law 
enforcement with the tools that they need in their terrorism 
investigations while, at the same time, balancing those powers with the 
need to protect civil liberties. I think, in the legislation before us, 
we have added clarity to the law in giving access to the courts to 
object to section 215 gag orders and, of course, striking a very 
punitive provision dealing with counsel and not forcing the recipient 
of a National Security Letter to disclose the name of their attorney to 
the FBI.
  All of these are improvements to the underlying legislation, and I 
recognize that we had a overwhelming, bipartisan vote today to move 
forward on this package. I anticipate that we will have similar 
bipartisan votes in the days ahead to conclude work on this legislation 
and get a much improved PATRIOT Act signed into law.
  Mr. DURBIN. I thank the Senator from New Hampshire, as well, because 
that clarification is important. So if a library offers basic Internet 
access, and within that access a patron can, for example, send and 
receive e-mail by accessing an Internet-based e-mail service such as 
Hotmail, for example, that does not mean the library is a 
communications service provider and, therefore, it does not mean that a 
library could be subject to these national security letters of 
investigation.
  By way of comparison, a gas station that has a pay phone isn't a 
telephone company. So a library that has Internet access, where a 
person can find an Internet e-mail service, is not a communications 
service provider; therefore, it would not fall under the purview of the 
NSL provision in 18 U.S.C. 2709. It is a critically important 
distinction. I thank the Senator from New Hampshire for making that 
clear and for all of his good work on this bill.
  Libraries are fundamental to America. They symbolize our access to 
education. They are available to everyone, regardless of social or 
economic status.
  When we first introduced the SAFE Act, I went to the Chicago Public 
Library to make the announcement. The library was established in 1873, 
and for over 130 years it has given the people of the City of Chicago 
the ability to read and learn and communicate. Here is what the mission 
statement says at that public library:

       We welcome and support all people and their enjoyment of 
     reading and pursuit of lifelong learning. We believe in the 
     freedom to read, to learn, and to discover.

  We have to ensure, in the Senate and in Congress, in the bills that 
we pass, including the PATRIOT Act, that this freedom to read, learn, 
and discover is preserved for our children and our grandchildren.
  Mr. President, I yield the floor and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Unfunded Mandates

  Mr. ALEXANDER. Mr. President, the National Governors Association 
meeting will be held in Washington during the week we return from 
recess. That brings back some fond memories for me because I remember 
the 8 years I served as Governor. Each time we came here, and the 
highlight of it every year, was a dinner in the White House with the 
Chief Executive of the United States and the chief executive of each of 
our States.
  While the Governors are in town, or as they are coming to town, I 
want to take the opportunity to wave the lantern of federalism on a few 
issues under discussion here in the Senate that will affect strong 
State and local governments. I know the Presiding Officer cares deeply 
about the same issues because his service as mayor made him

[[Page S1391]]

aware of those issues, just as I was as Governor.
  During the year after I came to the Senate, when we were debating the 
Internet tax issue, someone said in exasperation that I had appeared 
not to have gotten over being a Governor. I hope that can be said on 
the day I leave here, because most of our politics here in the Senate 
is about how we resolve conflicts of principles. One of the most 
important principles upon which our country is founded is the principle 
of federalism, the idea that we are a big, diverse, complex country and 
that we need strong States and strong cities and strong counties and 
strong communities to absorb all of our differences. We are not a 
small, homogeneous nation and our federalism is absolutely key to our 
success as a country.
  I have not gotten over being Governor. It causes me especially to 
remember how the Republican majority came to power in 1994, a majority 
of which I am proud to be a part. There was a Contract with America. I 
wasn't part of the Congress at that time, but I remember it very well. 
I remember one of the most important aspects of the Contract With 
America was: no more unfunded Federal mandates. I remember also that a 
large number of Republicans, along with Leader Gingrich, stood on the 
Capitol steps and said: If we break our promise, throw us out.
  Since I wish to make sure our majority doesn't get thrown out, I want 
to remind all of us, including many who serve in the Senate, who voted 
in 1995 to stop unfunded Federal mandates, this still is an important 
part of our responsibilities here. I have three examples of that in our 
discussions.
  The Senate recently reaffirmed its commitment to the idea of avoiding 
unfunded Federal mandates. I suppose I should stop for a moment and 
explain what I mean by ``unfunded Federal mandate.'' That is a 
Washington phrase we throw around. Here is the way I understand it. 
Nothing used to make me madder as Governor--and I daresay it might also 
be true of the Presiding Officer, who was a mayor--than for some 
Senator or Congressman to come up with a big idea in Washington, pass 
it into law, hold a press conference and take credit for it, and send 
the bill to me to pay at the State capitol. Then the next thing you 
know, that same politician would be back somewhere in Tennessee making 
a big speech about local control. That is an unfunded Federal mandate--
when the big idea is here and the law is passed here and then the bill 
is sent down to the county commissioner or to the mayor or to the 
legislature or to the Governor and it is said: It was our idea but you 
pay for it.
  Ten years ago when Bob Dole was the majority leader, the first thing 
the new Republican Congress did--it was called S. 1 at that time--was 
to pass the Unfunded Mandates Reform Act. It created a new point of 
order that could be raised against legislation imposing unfunded 
Federal mandates on State and local governments. Everyone felt pretty 
good about that because they said this new law will create a so-called 
penalty flag that can be thrown when some Federal official came up with 
a good idea, passed it into law, and sent the bill back to us in the 
States. However, until recently that penalty flag has never been 
thrown, not in the first 10 years of its existence. However, last year, 
in our Budget Act, that point of order was given some more teeth. In 
the budget resolution under which we operate today, an unfunded mandate 
point of order raised in the Senate requires 60 votes in order to be 
waived instead of the simple majority required under the Unfunded 
Mandates Reform Act.
  In October of last year, 2005, this 60-vote point of order was raised 
for the first time in the Senate against two amendments to an 
appropriations bill that would have raised the minimum wage. That would 
have been an unfunded Federal mandate. This new provision was put into 
the Budget Act by Senator Gregg, who had been the Governor of New 
Hampshire. It had my support as well as that of a number of other 
Senators. So I would like to call to the attention of my colleagues, 
and the Governors as they are coming to town, three issues that are 
currently under discussion here that raise the specter of unfunded 
Federal mandates.
  No. 1 is the taxation of Internet access issue. State and local 
governments and members of the telecommunications industry, I believe, 
need to come up with a solution to that question before the current 
moratorium expires in 2007.
  No. 2, the Federal Government needs to fully fund the implementation 
of the so-called REAL ID Act, which we passed last year and which has 
to do with border security.
  No. 3, the Federal Communications Commission needs to exempt colleges 
and universities from expensive new requirements that will require 
colleges to modify their computer networks to facilitate surveillance, 
which will have the effect of adding about $450 to every tuition bill 
across this country.
  Let's take those one by one. First is the Internet access tax 
moratorium. My colleagues will remember that after we had a spirited 
debate that went on for about a year and a half, President Bush signed 
into law the Internet Tax Nondiscrimination Act. There was a lot of 
discussion, a lot of compromise, a lot of negotiation. What we were 
arguing about was, on one hand we wanted to increase the availability 
of high-speed Internet access to all Americans--that is a national 
goal--but at the same time we didn't want to do harm to State and local 
governments by taking away from them, as a part of our act, billions of 
dollars upon which they relied for paying for schools, paying for 
colleges, paying for other local services.

  The bill we came out with at the end of 2004 was a good compromise 
for several reasons. First, it was temporary, not permanent. It called 
for a 4-year extension of the Internet access tax moratorium that was 
already in place, so this one will expire in a year and a half.
  Second, our agreement allowed States already collecting taxes on 
Internet access to continue to do so. That was a part of the ``do no 
harm'' theory that many of us championed.
  Finally, it made clear that State and local governments could 
continue to collect taxes on telephone services even if telephone calls 
are made over the Internet, which they increasingly are.
  In January of this year, the General Accounting Office released a 
report interpreting the Internet Tax Nondiscrimination Act. The GAO 
interpreted the moratorium in a more limited way than what I, and I am 
sure many of the other Senators, intended when we were drafting the 
bill.
  While the interpretation may suit me fine because it goes in the 
direction I was arguing, the GAO interpretation may demonstrate very 
clearly how important it is to deal with this complex issue in some 
other way. That is why it needs to be resolved by representatives of 
industry and by mayors and Governors working together to suggest to us 
a path for the future. I understand the National Governors Association 
has convened meetings with representatives of the telecommunications 
industry and State and local governments. I hope all the parties will 
take those negotiations seriously, reinvigorate those efforts, and 
present us with a workable compromise we can then consider and enact.
  Let me suggest again the principles that I believe should guide this 
discussion. No. 1, separate the issue of taxation and legislation. Both 
are very complex issues that can have serious implications for industry 
and State and local governments and consumers, but they are not the 
same effects. The goal should be simplicity. Regulations surely ought 
to be streamlined to allow new technology to flourish. Voice over 
Internet protocol or, in plain English, making telephone calls over the 
Internet, is very different than plain old telephone service, and our 
regulatory structure needs to recognize that and be welcoming to this 
change. The goal in taxing the industry should also be simplicity and 
certainty. For example, a company that operates in almost 11,000 State 
and local jurisdictions, all of whom might tax telecommunications, 
might have to file more than 55,000 tax returns a year. No one wants to 
see that happen and that is far too big a burden for a large company, 
much less a small startup company. But in searching for a solution, we 
do not want to do harm to State and local governments.
  The Senator from California, the Senator from Delaware, the Senator

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from Ohio--many Senators pointed out that State and local governments 
rely heavily today on telecommunications taxes as a part of their tax 
base.
  In our State of Tennessee, our Governor said it is a matter of $300 
million or $400 million in State revenues. That would be as much money 
as we would raise from instituting an income tax. It is a lot of money. 
So we should not take an action in Washington, even for a good purpose, 
that has the effect of undercutting State and local decisionmaking. My 
point very simply is, deregulate voice over Internet protocol? Yes. We 
absolutely should do it. But we must find a way to do it that doesn't 
force States and local governments to provide subsidies to the 
telephone companies. If the Federal Government wants to provide a 
subsidy to the telephone companies, the Federal Government ought to pay 
for it and not create an unfunded Federal mandate.
  The second example of the possibility of an unfunded Federal mandate 
came with the passage of the REAL ID legislation. We are about to enter 
into a debate about immigration. We hear about it all the time. It is a 
serious problem. We have 10 million to 15 million people living in our 
country who are illegally here. That is not right for a country that 
honors the rule of law, and we have to fix it. One way some have 
suggested to fix it was the so-called REAL ID law. But the effect of 
that was basically to turn driver's license examiners in Tennessee and 
every other State into CIA agents by making State driver's licenses 
national ID cards, and then forcing the States to pay for it.
  I don't want to talk today about whether it is a good idea or a bad 
idea to turn State driver's license employees into CIA agents, or 
whether we should have a national ID card. The fact is the law says 
that is what they are going to do and that is what we are going to 
have. What I want to talk about today is how do we pay for that.
  REAL ID, according to the National Conference of State Legislators, 
will cost States $500 million over 5 years to implement. That is $100 
million a year. This is not technically an unfunded mandate because the 
law actually gives States a choice, but here is the choice: In 
Minnesota or Tennessee or any other State, either upgrade your driver's 
licenses according to the Federal rules, or your residents will not 
have the ability to collect their Social Security check or board an 
airplane. So that is not much of a choice.
  All across the country, because of the REAL ID law, this is a new 
responsibility for States and it is going to cost a half billion 
dollars. Yet in fiscal year 2006, only $38 million was appropriated for 
States to cover the cost of REAL ID. In fiscal year 2007, the 
President's budget contains no funding for REAL ID, even though $33.1 
billion is to be spent on homeland security.
  I intend to work this year to see that REAL ID does not become an 
unfunded mandate. If the Federal Government wants to create a national 
ID card and they want to force the States to do it, then the Federal 
Government ought to pay for it.
  My final example: the Federal Communications Commission needs to make 
sure that compliance with the Communications Assistance for Law 
Enforcement Act, called CALEA, does not become an unfunded Federal 
mandate on colleges and universities.
  This CALEA law is a law that communications systems have to be 
engineered in such a way as to make it easy for Federal agents to 
subject phone calls to surveillance. In August of last year, the 
Federal Communications Commission, recognizing that more and more 
telephone calls are being made over the Internet, extended the 
requirements of this law to colleges and university computer networks.
  Implementing this order, according to technology experts, could cost 
$5 billion to $6 billion, a figure that translates into a $450 increase 
in annual tuition at most American universities.
  The pages here who are listening to this are already looking forward 
to tuition increases when they go to college that are high enough, and 
they don't need another $450 on top of it.
  Over the last several years, tuition college costs have increased 
faster than inflation. Public school tuition jumped 10 percent in 1 
year--in 2004. Even though Federal funding for colleges and university 
has gone up, State funding has been fairly flat. So we have seen a big 
increase in tuition, and this is another $450.
  Given these concerns, even though the FCC might have a laudable 
objective in making it easier to overhear or keep track of phone calls 
in computer networks on college campuses, if the Federal Government 
wants to order that, the Federal Government ought to pay for it.
  I have written to the FCC urging it to exempt colleges and 
universities from the requirement of August 2005 in order to allow time 
for the development of an alternative to this $450 tuition increase.
  I ask unanimous consent that my letter to the FCC on this issue be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                 Washington, DC, February 6, 2006.
     Hon. Kevin Martin,
     Chairman, Federal Communications Commission, Washington, DC.
       Dear Chairman Martin: I am writing to urge the Commission 
     to exempt private telecommunications networks operated by 
     colleges, universities, and research institutions from 
     coverage under the Communications Assistance for Law 
     Enforcement Act (CALEA). Requiring these networks to come 
     into compliance with the provisions of CALEA, according to 
     the American Council on Education (ACE), could cost billions 
     of dollars for new equipment alone. These compliance costs 
     would constitute an enormous unfunded federal mandate and 
     would more than likely be passed on to students in the form 
     of increased college tuition.
       According to the statute, private communications networks 
     are not subject to CALEA. The Commission's order states that 
     higher education networks ``appear to be private networks for 
     the purposes of CALEA.'' However, other language in the order 
     suggests that to the extent that these networks are connected 
     to the Internet they are subject to CALEA. In considering how 
     to resolve this apparent conflict, the Commission should take 
     into account the enormous costs to higher education that 
     would result if these private networks are not exempted. 
     According to technology experts employed by higher education 
     institutions, compliance costs could amount to billions of 
     dollars for new switches and routers. Additional costs would 
     be incurred for installation and the hiring and training of 
     staff to oversee the operation of the new equipment. Cash-
     strapped schools--particularly state-funded, public schools--
     would be faced with the choice of bearing these additional 
     costs or, according to ACE, increasing annual tuition by an 
     average of $450. Coming on the heels of ten years of college 
     costs increasing faster than inflation, such a tuition 
     increase would make it even more difficult for students to 
     take advantage of higher education in the United States.
       At this time, no evidence has been presented that the 
     current practice with regard to wiretaps within college and 
     university networks has proven problematic. In 2003, only 12 
     of 1,442 state and federal wiretap orders involved computer 
     communications. According to the Association of 
     Communications Technology Professionals in Higher Education, 
     few, if any, of those wiretaps involved college and 
     university networks.
       With the explosive growth of voice over Internet Protocol 
     (VoIP) services in recent years, the number of wiretaps 
     involving computer communications is likely to increase. 
     However, before sending a multi-billion dollar bill to U.S. 
     college students, I would urge the Commission to consider an 
     exemption for these private networks. Such an exemption could 
     give colleges and universities more time to work with the FCC 
     to come up with a cost effective way to support law 
     enforcement efforts with regard to computer communications. I 
     appreciate your consideration of this request.
       Sincerely,
                                                  Lamar Alexander.

  Mr. ALEXANDER. Mr. President, these are some of the big ideas in 
Washington, all of which may be laudable. The idea of freeing high-
speed Internet from overregulation and subsidizing it, the idea of 
national ID cards administered when you get your driver's license so 
that we can do a better job of protecting our borders, and the idea of 
reengineering computer systems on college campuses so that it will be 
easier for us to fight the war against terrorists--all three may be 
wonderful ideas, but all three amount to unfunded Federal mandates, if 
they are done the wrong way.
  I began my remarks by reminding all my colleagues--and especially our 
colleagues on this side of the aisle, those in the majority--that the 
Republican Party came to a majority in 1994 on a platform of no more 
unfunded mandates. Republican leaders said: If we break our promise, 
throw us out. I don't want us thrown out any more than I want any more 
unfunded Federal mandates.
  So my purpose today, as the Governors begin to come to town, is to

[[Page S1393]]

wave the lantern of federalism a little bit and raise a red flag to 
remind my colleagues that there is now a 60-vote point of order for any 
unfunded Federal mandates going through here and that I and others will 
be watching carefully to make sure that we keep our promise.
  This is a body in which we debate principles, and one of the most 
important principles that we assert is the principle of federalism. It 
does not always trump every other principle that comes up, but my 
feeling is it has been too far down. I want to raise it up higher, and 
I intend to use that 60-vote point of order to assert the principle of 
federalism when unfunded Federal mandates appear on this floor.
  Thank you, Mr. President. I yield the floor. I suggest the absence of 
a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I wish to speak for a moment, first of all, 
about the process we are going through and then about the substance of 
a couple of amendments that our colleague from Wisconsin would have 
liked to have introduced and have a vote on it with respect to the 
PATRIOT Act.
  Our constituents might be wondering why we are on the floor of the 
Senate on this Thursday afternoon discussing the PATRIOT Act. After 
all, haven't we passed it? Of course, the answer is, in a sense, we 
have passed it now several times. But there are colleagues on the other 
side of the aisle who have decided that rather than let the will of the 
Senate be carried out with adoption of the PATRIOT Act so this bill can 
be sent to the President so he can then sign it, thus reauthorizing the 
act for another 4 years and giving the tools to fight terrorism to our 
intelligence and law enforcement officials that, rather, they are going 
to make us comply with all of the procedural technicalities which they 
can throw in our way which accomplishes absolutely nothing but requires 
us to take several more days to finish the process.
  What can be gained from this? Nothing at all except that we waste 
more time thus making it more likely that we will not have time to do 
other business of the Senate, especially as it gets toward adjournment 
later on in the year.
  What we are seeing is taking something very important for the 
protection of the American people--the PATRIOT Act--and using it for 
what I believe are improper purposes and simply delay action in the 
Senate so that we will have less time to act on other items.
  There is no basis for delaying the PATRIOT Act. The votes are there 
to go to the conference and have the House of Representatives approve 
it, again, as it already has, so it can be sent to the President. There 
are no amendments that are going to be brought up. We are going to have 
a final vote on Tuesday--and that is it. But rather than being able to 
accomplish that result today, we are having to waste all of this time.
  What kind of a message does this send to our allies who are, first of 
all, a little skittish about some of the news leaks about our 
surveillance programs in which they participate, to some extent. We get 
good information from our intelligence service, and I suspect they are 
worried about the lack of control over our intelligence process. They 
are not sure, I suspect, what to make of this debate about the PATRIOT 
Act. They thought we had it resolved so they could work with it on the 
basis of the laws they understood. They are not sure.
  I often wonder what Osama bin Laden is thinking. I suspect he is not 
getting live coverage, but he is probably getting reports somehow or 
other, and he must be shaking his head: I thought I was pretty clear, I 
am really making threats against these guys, and they are playing 
around. They are not taking my threats seriously.
  I, for one, am taking his threats very seriously--and so does the 
Director of the CIA and so does Ambassador Negroponte.
  Our intelligence officials and the people we have asked to do this 
job for us take this threat dead serious. They have asked the Congress 
to give them the tools they need to fight this terrorist threat. Part 
of the tool is this PATRIOT Act, which has now been revised and 
reformed and amended and gone over again, and, finally, there are now 
three more changes to it--and it is done.
  We have the ability now to simply pass it on to the President so he 
can sign it, and for 4 more years everybody knows exactly what we have 
to work with here.
  Remember the 9/11 Commission following the tragedy of September 11, 
when we asked this commission to analyze what we could have done better 
and what went wrong, part of what they said was wrong was that there 
was confusion in our law enforcement intelligence community about what 
they could and should do.
  In fact, legal interpretations differed so much they felt there was a 
wall that separated the intelligence agencies and the law enforcement 
agencies from even talking to each other.
  One of the things the PATRIOT Act does is makes clear that there is 
no such wall; that at least our law enforcement and intelligence folks 
can talk to each other about these terrorists.
  It is most distressing that we can't simply get this bill passed on 
to the President so that everybody knows we have it reauthorized again 
for another 4 years.
  As I said, if there were any rationale behind this, other than simply 
delaying so that we can't do other business, you might have something 
to bite your teeth into and debate on the floor. But in truth, this 
thing, when it passes, is going to be overwhelming. I doubt that we 
will have a handful of votes against it. In fact, we may have less than 
a handful, which would be 5 votes against this when we vote on it. But 
I thought at least it would be interesting to see what some of the 
objectives posed by some of the most vociferous critics of the PATRIOT 
Act are, what those criticisms are, to examine them so we can see 
exactly what the complaints are about, about what the President has 
called an essential tool in the war on terrorism.
  When you look at the suggested amendments--again, amendments which we 
are not going to be voting on because we have already been through that 
process three times and that has thankfully come to an end--I wanted to 
examine a couple of amendments our colleague from Wisconsin would have 
offered to illustrate it is not something we should be wasting our time 
on. One of them has to do with something that has been in existence for 
40 years, called national security letters. It is essentially a 
subpoena for records that is just like a grand jury subpoena.

  The county attorney or the district attorney goes to the grand jury 
and says: I think we need the following documents in order to see 
whether we can make our case. They write up this piece of paper, it is 
delivered, say, to a hotel, and it asks for the business records: We 
want to know everyone who checked in and out of the hotel for the last 
3 days because we think maybe this person we are after may have checked 
into this hotel--that would verify his presence on the night of the 
murder, or whatever the case--so the hotel gives them the records.
  There is no expectation of privacy in the records. When the hotel 
clerk says: Here, sign in--and he turns it over, you can see exactly 
everyone else who has signed into the hotel. There is nothing private 
about it.
  These national security letters have been used for many different 
government agencies. If you are investigated for Medicare fraud, for 
example, your doctor might get one of these security letters asking for 
information.
  Back when the security letters were authorized, we did not have 
terrorism. Now we have terrorism in a big way in the last decade or 
dozen years. Law enforcement authorities say: You know that process we 
have of getting business records through the security letters is a good 
process, and we ought to apply that to terrorism, too. Why not? If we 
can investigate drug dealers or bank fraud criminals or people like 
that with this kind of a subpoena for records, why shouldn't we be able 
to do it for terrorists? That is a much bigger deal.

[[Page S1394]]

  Now for the first time our colleagues are saying maybe we should have 
a court process to review this. That process exists in a totally 
different context. If we want a much more formal procedure, there is 
something called a Section 215 warrant. That is court supervised. This 
is the sort of light version. If it is contested, of course, you have 
to go to court. Most of the time the records are easily given because 
they are not private records.
  For the first time in the context of terrorism our colleagues are 
saying this is an invasion of privacy and we need a court to review 
this. My point is, it must be very confusing to law enforcement to have 
Congress debating something like this when there is no rationale for 
changing the law of 40 years that has been applied in everyday context 
throughout the country, and all of a sudden where we would want the 
most streamlined procedure, where we would care most about the cops, 
where we need speed because we do not know whether an attack is 
imminent, for example, in the situation that is much more serious, now 
we are saying we need to throw some roadblocks in the way of the law 
enforcement tool. It does not make sense.
  I thought I would take two of the amendments--we are not going to be 
debating the amendments, but this is the kind of thing raised as an 
objection to the PATRIOT Act--the kind of amendments that would be 
offered. It shows how unnecessary this approach is.
  Let me note one other thing. There have been a lot of unnecessary 
amendments attached to the PATRIOT Act. It is getting to the point 
where I wonder whether we can really do the job, our law enforcement 
community can really do the job that our constituents want it to do. 
For example, by my count, the final bill that we will send to the 
President requires 12 different reports or audits of our Nation's 
antiterror investigators. Obviously, oversight is important. Reports to 
the Congress are important. But it seems to me this is overkill. Our 
intelligence agencies should be devoting their resources primarily to 
investigating suspected terrorists, not to investigating each other. 
All of these reports simply add to the burden they already have.
  And we wonder sometimes after the fact, when a September 11 
commission reports that they were too burdened to do their job, how 
that could possibly be. Congress sometimes can be part of the problem 
as well as part of the solution.
  All of the changes have been negotiated and renegotiated, as I said. 
At some point, we need to complete the bill. There are other amendments 
I would like to add, but I had my chance and this is not the time to be 
reopening the process for yet another round of amendments. It seems to 
me we ought to be moving on.
  I will mention this one amendment. It is actually an amendment 
numbered 2893 that would have been offered by the Senator from 
Wisconsin. This amendment would strip away the protections for 
classified information about suspected terrorists and terrorist 
organizations in the manner I discussed a moment ago. The amendment not 
only risks revealing our level of knowledge of our data collection 
methods to those who would do us harm, but it also threatens to 
undermine our relations with allies who supply us with a lot of 
information in this war or terror. They do not do that so it can be 
given out to the public. The purpose of classification is to see that 
the information remains secret. But this particular amendment would 
allow classified information to be compromised during the challenge to 
a nondisclosure order for national security letters or a FISA business 
records order. FISA is the Foreign Intelligence Surveillance Act. It 
serves no substantial interest but, as I said, can be very damaging to 
our national security.

  Let me put this in perspective. A section 215 order--which I 
discussed before, which is a FISA order and is always accompanied by a 
nondisclosure requirement--already is judicially reviewed, as I said. 
There has to be a court action on it before it can be issued. And under 
the amendment that was offered by the Senator from New Hampshire, a 
third party recipient of a section 215 order also would be able to have 
the courts review the section 215 order after its issue, which is a 
second round of review. We have added that in. To my mind this is 
redundant and unnecessary, but that has been added. That is one of 
those compromises to enable us to get to this point.
  Let me put this issue in perspective. A section 215 order, which 
provides that second round of review, is much different than a national 
security letter which, as I said earlier, has been around since the 
1970s. They have always been accompanied by a nondisclosure 
requirement. In other words, when the third party is served with this 
subpoena that says: Would you please give us these records, you are not 
supposed to tell the person that a law enforcement entity is seeking 
the records. Obviously, you do not want to tip them off that you are 
investigating them. There is a nondisclosure requirement. You cannot 
tell the person that the Government has come asking for the records. 
That requirement has always been automatic, and there has never been 
any provision for any judicial review of that nondisclosure 
requirement.
  The national security letters, like virtually all other subpoenas, 
are also not judicially reviewed before they are issued. The conference 
report, for the first time in the history of these national security 
letters, authorizes judicial review of the need for the nondisclosure 
of the subpoenas. That was another compromise that was added. You not 
only have it in the formal section 215 requirement but also in the less 
formal security letter process. It allows the recipient to challenge 
the nondisclosure requirement, and it ensures the automatic nature of 
the nondisclosure requirement.
  Now the FBI will have to evaluate each national security letter. The 
nondisclosure of the NSL and the nondisclosure requirement can only 
apply if the FBI certifies that the public disclosure of the service of 
the NSL will harm national security. In other words, before it is 
issued, the FBI has got to have a certification that the recipient of 
the letter may not disclose it because to do so would be to harm 
national security. That certification is based upon a very solemn 
judgment exercised by the Attorney General.
  Critics condemn this provision as giving only the illusion of 
judicial review. When they say that, it bears mention that what they 
are condemning is language that is being added to a statute that never 
provided any kind of judicial review before that. For over a quarter of 
a century there has been none whatsoever, and yet there is a complaint 
this judicial review is not good enough. The sponsor of the amendment 
argues that the standard employed for the review of the security letter 
and the section 215 nondisclosure requirement is too high and can never 
be met.
  It is high, but it is very high for a reason. If a challenge is made, 
the FBI needs to reevaluate whether there is a continued need for the 
disclosure. But if the FBI certifies that disclosure of the NSL would 
harm national security, that reclassification is conclusive. Now, when 
you say ``conclusive,'' that is a very high standard.
  In this respect, the proponents of the amendment are correct; that is 
a high standard. But it is the only way the determination can work.
  Think about it for a moment. Only the FBI, the people who are 
investigating the matter, not individual district judges, are in a 
position to determine when the disclosure of classified information 
would harm national security. Obviously, that is not something that a 
Federal district judge has any expertise on. You have to have, 
literally, a trial to determine whether that proposition were true in 
each particular case.
  The reason nondisclosure might be necessary should be obvious. If a 
suspected terrorist or his associates, for example, are funneling money 
through a particular bank in a city, and if that bank were to make 
public the fact that it had received a security letter requesting 
records in a terrorism investigation, that disclosure would easily tip 
off the terrorists and their associates that they are under 
investigation. You do not want to do that.
  It is also important that the FBI make the final determination 
whether the disclosure would harm national security. And only the 
agents in charge of these counterterrorism investigations will be able 
to evaluate how the

[[Page S1395]]

disclosure of a particular piece of information could potentially, for 
example, reveal sources and methods of intelligence and who, therefore, 
might be tipped off as a result of the disclosure.
  We are all aware of this current controversy regarding the briefing 
of select members of the Intelligence Committee over a particular 
surveillance activity involving international communications with 
members of al-Qaida or people suspected of being with al-Qaida. The 
reason not every member of the Intelligence Committee is briefed is 
because of what we would call ``sources'' in this case. Methods of 
surveillance are so secret, so classified, that it has been determined 
that even some members of the Intelligence Committee should not be 
fully briefed on exactly how this methodology works.
  So you can imagine when the FBI has sources of intelligence to 
protect or certain methods of intelligence gathering to protect, the 
last thing you want is for a judge to decide that those should simply 
be made public.
  That is why this conclusive presumption is in the law, why it is so 
important, and why we cannot have this section amended to open that to 
public disclosure of that sensitive information. Yet this amendment 
numbered 2893 would allow every one of the 800 Federal district judges 
in the country, in fact, to be their own director of national 
intelligence and decide for themselves whether exposing classified 
information would inappropriately reveal the sources and methods I 
discussed, whether that might tip off terrorists to what we already 
know about them, and whether it would harm relations with our allies 
who, perhaps, have provided us with the information. Obviously, that 
cannot be allowed. We cannot expect our allies in the war on terror to 
cooperate with us if we treat this sensitive information that they 
provide to us with anything other than the most careful consideration. 
And we cannot expect our agents to be successful in detecting terrorist 
plots if every step of the way, every time they gather information 
through either a security letter or the more formal section 215 
process, they can be sued and forced to divulge classified information 
about whom and where they are looking and what methods they are using.

  This amendment would do serious harm to U.S. national security. And 
to what end? What powerful privacy interest or civil rights interest 
dictates a third party asked to produce business records in its 
possession must be allowed to disclose the existence of the 
investigation or must be given access to other classified information 
in order to plead that matter before the judge?
  When the FBI is investigating organized crime in the United States 
and grand juries compel testimony or require the production of records, 
we do not let those witnesses or the parties holding the records 
publicize the fact that they had been subpoenaed or publicize that 
there was an ongoing investigation. We recognize that secrecy is 
important in an organized crime investigation and it outweighs any 
interest that third parties might have in talking about the 
investigation.
  Why wouldn't we recognize the same realities in a terrorism 
investigation, an area where the safety and security of the American 
people are much higher? That is the kind of amendment that would be 
offered. Thankfully, as I said, we decided to go forward with the 
process and not have any more amendments and have the vote next week 
which will enable us to send this bill to the President.

  My point in discussing this is to demonstrate there is no reason to 
have further debate or amendments, and we could have gotten done this 
afternoon and known we had reauthorized the act for another 4 years.
  The only other amendment I want to discuss is amendment No. 2892, 
blocking these section 215 orders even where relevance is shown. This 
amendment is highly problematic because it would bar antiterrorism 
investigators from obtaining some third party business records even 
where they can persuade a court that those records are relevant to a 
legitimate antiterrorism investigation. We all know the term 
``relevance.'' It is a term that every court uses. It is the term for 
these kinds of orders that are used in every other situation in the 
country. Yet the author of the amendment argues that relevance is too 
low a standard for allowing investigators to subpoena records.
  Consider the context. The relevance standard is exactly the standard 
employed for the issuance of discovery orders in civil litigation, 
grand jury subpoenas in a criminal investigation, and for each and 
every one of the 335 different administrative subpoenas currently 
authorized by the United States Code. These national security letters 
have existed since the 1970s, and they have always employed a relevance 
standard.
  Why now that we are faced with a terrorism threat, and we decide this 
same investigative tool should be available to investigate terrorists 
would we impose a higher standard to get the information? If anything, 
you would be talking about applying a lower standard because of the 
importance of the threat and the fact that sometimes speed is of the 
essence.
  As the Department of Justice Office of Legal Policy recently noted in 
a published report--I want to quote this--``Congress has granted some 
form of administrative subpoena authority to most Federal agencies, 
with many agencies holding several such authorities.'' The Justice 
Department ``identified approximately 335 existing administrative 
subpoena authorities held by various executive-branch entities under 
current law.''
  As I said, 215 orders already are harder to get than regular 
subpoenas, even though the subject matter would suggest that perhaps 
they ought to be easier to get. In the case of these section 215 
orders, the law requires that the FBI first seek a determination of 
relevance from a judge, which makes it harder to get a 215 order than 
it is to get any other grand jury subpoena or virtually any other kind 
of administrative subpoena because none of them require preapproval 
from a judge. Even a grand jury subpoena is not approved or reviewed by 
a judge or the grand jury before it is issued. It is issued directly by 
the prosecutor.
  It is interesting; there was a recent online article in National 
Review Online by Ramesh Ponnuru, a very good writer and student of this 
issue, who made the following comments. This is a quotation. He noted 
that critics say:

     that investigators shouldn't be able to get business records 
     merely by convincing a judge that the records are 
     ``relevant'' to an ongoing terrorism investigation. Yet that 
     relevance standard, from Section 215 of the law, is the exact 
     same standard employed for discovery orders in civil 
     litigation, for grand-jury subpoenas in criminal 
     investigation, and for each of the 335 different 
     administrative subpoenas currently authorized by the U.S. 
     Code. Getting a 215 order is harder than getting a grand-jury 
     subpoena or almost any kind of administrative subpoena, since 
     judges don't have to review the latter [before they are 
     issued].

  Again, this is the current law. So even without an amendment, which 
would make it even more difficult, the law we are talking about with 
regard to terrorism investigations makes it more difficult in a 
terrorism investigation to get a subpoena than in any other situation. 
Yet the proponents of this amendment would make it even more difficult 
than that.
  Now, let's imagine what this means. Here is a scenario:

       Let's imagine that intelligence agents have discovered that 
     suspected Al Qaida agent Mohammed Atta is in the United 
     States and that he has hired another individual to work for 
     him. Under the Patriot Act legislation being considered now, 
     it will be easier for the federal government to subpoena 
     records in order to make sure that Atta is paying that 
     individual the minimum wage than it will be to obtain records 
     to find out if Atta is using him to engage in international 
     terrorism.

  That is not right. I was going to say something else. I will just say 
that is not right. This is the existing law. This is before we would 
make it even more difficult with the amendment I discussed a minute 
ago.
  So without making further arguments on this point, I think you can 
see that we have girded this PATRIOT Act with levels of civil rights 
protection and privacy rights protection that we do not have in any 
other part of the code, even though the need for speed and the need for 
agility to get after these terrorists is, I would argue, a much more 
important matter than investigating Medicare fraud or bank fraud or 
money laundering of whatever it might be.

  We have not imposed all of those civil rights or privacy protections 
in those sections of the code, but here we

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are going to add them and make it even more difficult for the FBI and 
other law enforcement and our intelligence agencies to do the job we 
want them to do. Then, of course, if something happens, we will haul 
them before Congress and say: Why couldn't you get your job done? And 
when they say: Well, the statute was a little tough for us to comply 
with, we will say: That will be no excuse.
  So we need to be very careful what we do in considering further 
amendments to the law.
  Mr. President, let me conclude by saying that the other amendments 
that would have been offered are in the same vein, making it 
unnecessarily difficult for our intelligence agents and our law 
enforcement officers to do the job we have asked them to do.
  When my colleagues and I have had before us on the floor of the 
Senate amendments to add armor to humvees or to have better bulletproof 
vests or to have other kinds of equipment or tools for them to carry 
out the missions we ask them to perform when we send them into harm's 
way, we do not hesitate long to give our military everything they need 
because we want them to succeed in their mission. We do not want them 
to be left vulnerable in any way. Why? Because we want to be protected 
and we want them to be protected.
  Yet when it comes to giving our intelligence agencies the tools to 
fight terrorism, we shirk back and say: Well, we are going to do it, 
but first we are going to add several layers of additional requirements 
to make it more difficult for you to do your job.
  In the law and in this fight against terrorism, we are generally not 
fighting with airplanes and ships and the like. This is a different 
kind of war. This is a war against a very secretive enemy all over the 
globe. There is really only one way to get to this enemy, and that is 
with good intelligence to find out who they are, where they are, and 
what they are up to.
  So the equipment we are giving to them, the tools for them to fight 
terror are these provisions of the PATRIOT Act and FISA and the other 
activities that have been discussed. This is what enables them to 
perform their missions. We cannot load these tools up with so many 
restrictions and legal loopholes that it is impossible for them to do 
their job. If we expect them to be able to protect us, we have to write 
these laws in clear, understandable, fair, and effective ways, 
certainly protecting our civil rights. But I think I have demonstrated 
we have done that.
  If you do not need all these protections if you are investigating 
bank fraud, then I would say, as the lawyers say: A fortiori. They are 
less necessary in an investigation of terrorism, where speed may be 
required, where secrecy is absolutely critical, and therefore where the 
kind of protections that have been offered are very problematic to 
these folks doing their job.
  So the bottom line is this: We have a good act, the PATRIOT Act. It 
is going to be reauthorized for another 4 years. We have already added 
numerous protections of civil liberties to it. It is, therefore, quite 
appropriate that the time for amendments has come to an end, that we 
not have any more of these amendments brought before us--I think I have 
demonstrated the harm those amendments would do--that we get on to the 
job of getting this legislation reauthorized so we can say to our 
constituencies we were able to provide the tools to fight terrorism 
that will protect them and their families.
  That is our charge. There is only so much we as legislators can do, 
but this is something we can do, and we need to get about doing it.
  The PRESIDING OFFICER. The Senator from Hawaii.
  (The remarks of Mr. Akaka pertaining to the introduction of S. 2305 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I am sorry we are now facing another 
filibuster and delay of efforts to reauthorize the PATRIOT Act. We have 
taken 3 days this week to deal with legislation Senator Sununu 
introduced to assuage concerns he and others had about the bill. 
Senator Sununu's proposed bill guaranteed that at least four more 
Members of the Senate were on board to completely support a cloture 
vote on and final passage of the Conference Report. It certainly 
brought on board all the Republicans who expressed concern over the 
bill. But we are still going through the process of grinding down 
certain provisions to get an up-or-down vote on reauthorizing the 
PATRIOT Act. That is all we are asking for, an up-or-down vote, to 
determine whether we want to extend the provisions of the PATRIOT Act. 
That is being held up. We have many other things that are important for 
us to do for our country, but we have been forced to spend an 
extraordinary amount of time on this.
  If you look around, you will see that people are not engaging the 
issue. The complaints--Senator Kyl talked about some of them--are 
insubstantial. They are not the kind of serious concerns people have 
portrayed them to be. The act itself provides quite a number of 
provisions that simply allow investigators to use the same tactics to 
investigate terrorists, people who want to kill us, that they use to 
investigate wage-and-hour disputes, to investigate your taxes, to 
investigate drug dealers and pharmacists and drug dispensers and 
doctors. It is important that investigators continue to have these 
tools at their disposal.
  It is unfortunate we have had this obstruction. We have seen a 
pattern of it, frankly. The more time we spend on delaying these kinds 
of provisions, means that at the end of the year there will be a 
jammed-up calendar. We will have appropriations bills that have to 
pass, and other bills that need to pass. All the days we had at the 
beginning of the year have now been frittered away on rearguing things 
that we have argued and settled before.
  I don't mind debate. Senator Feingold has come down and spent a 
number of hours expressing his concerns. I respect him. He is a most 
articulate opponent of the act. He has certainly studied the act. We 
don't agree, but I respect that. But we went through all this in 
December for days on the floor of the Senate, debating these same 
issues. With Senator Sununu's compromise and suggestions for 
improvement that have been accepted, the basis for many of those 
complaints have gone away. Now we are taking another big, long time to 
reargue settled issues. I believe the majority leader, Senator Frist, 
is justified in his frustration that something that has been debated 
completely and fully and that now has a clear majority of Senators 
prepared to support it is being held up, delaying all the processes of 
the Senate.
  Let's talk about the merits of the bill and how the law deals with 
certain issues for which we have heard objections. One of the biggest 
items and perhaps the biggest issue that Senator Feingold and opponents 
have raised has been the delayed search warrants. The bill that came 
out of the Senate was passed by unanimous consent. We moved the PATRIOT 
Act reauthorization out of the Judiciary Committee by a unanimous vote. 
We moved it out of the Senate by a unanimous vote. The House passed a 
bill by an overwhelming majority. The House and the Senate bills went 
to conference, and they discussed it. We made concessions on each side.
  Senator Specter, chairman of the Judiciary Committee, a man who 
certainly has been respectful to civil liberties, has stated that he 
believes about 80 percent of the compromise that was reached favored 
the Senate version, not the House version. The House conceded on more 
issues than the Senate. They gave more than the Senate did. The bill 
that came out of conference was very close to the Senate bill. Then we 
hit the Senate floor, after having a unanimous vote, and now we have a 
filibuster. It is, indeed, frustrating.
  Let me talk about the delayed search warrants. What the PATRIOT Act 
does is to codify, to make a part of the law of the country, provisions 
for delayed notice search warrants. Delayed notice search warrants are 
not, as some have said in the Senate, an unusual procedure. Delayed 
notice search warrants have been in use for decades, long before we 
passed the PATRIOT Act. This act did not create any new authority or 
close any gap because there was no gap to close. The PATRIOT Act simply 
created a nationally uniform process and standard for obtaining a 
delayed notice search warrant.

[[Page S1397]]

  Some have said: The court said 7 days is what you ought to delay 
notice. That is the maximum time you should delay notice. That is not 
quite accurate. The Ninth Circuit, the most liberal circuit in the 
United States, the most reversed circuit in the United States by the 
Supreme Court, has held in one case that delayed notice search warrants 
that explicitly provided for notice within a reasonable period of time 
by the judge issuing the warrant pass constitutional muster under the 
fourth amendment. They said a delayed notice search warrant does pass 
constitutional muster. Then they went on to ask, though, what is a 
reasonable period of time? They defined it as 7 days, absent a strong 
showing of necessity. That is what the Ninth Circuit said, the most 
liberal circuit in America. But other courts, such as the Fourth 
Circuit, have upheld much longer initial delays as constitutional. For 
example, the Fourth Circuit has determined that a 45 day period for 
delayed notice is constitutional. The Fourth Circuit did not even 
suggest that 45 days was the upper limit. They simply concluded it was 
reasonable in those circumstances. The truth is, there is no standard 
set under current law by the courts that would mandate a specific 
period of time for a delayed notice.
  When the House of Representatives passed its version of PATRIOT Act 
reauthorization, it called for 180 day delayed notification period. The 
vote in the House was 257 to 171, a bipartisan vote of Republicans and 
Democrats, to approve overwhelmingly a delay of 180 days. The bill we 
sent to conference had a 7 day delayed notification provision in it. 
When the conference reported the bill, it tilted much closer to the 
Senate bill. It came out with 30 days, less than the 45 that the Fourth 
Circuit had approved, more than the Ninth Circuit had said. And it was 
a perfectly logical process we went through.
  About the importance of delayed search warrants in terrorist 
investigations, I can't express how strongly I believe that this has 
the potential to be the most significant provision in our legislation, 
the PATRIOT Act. Time and time again, Federal investigators, working 
with State and local investigators, determine that groups are involved 
in terrorist activities. They don't know all the people who are 
involved. They don't know the full extent, but they have probable cause 
to establish that they are violating or planning to attack the United 
States or are participating in a conspiracy to kill people to further 
their terrorist goals. So what do you do then?
  Under the PATRIOT Act--not the National Security Act or what we have 
talked about, the national security intercepts you have heard so much 
about in the paper; those are international and involve the President's 
inherent authority--under the traditional law of America, what do you 
do if you have probable cause to believe these groups are meeting, that 
there is some sort of sleeper cell in existence, you have proof, not 
just suspicion, proof to the level of probable cause that they are 
participating in this scheme?
  One of the most potentially beneficial things would be to get a 
search warrant for that house. But if you do it under normal 
conditions, when you have to conduct a search warrant if the defendant 
is not there, you provide him notice that you have conducted a search 
warrant. When you come to the door and before you go in, if no one is 
there, you have to leave a return on the door showing that you searched 
the place and any items you seized and who to contact. That is what you 
normally do in a search warrant.
  Police officers do that every day. But first they go to a judge and 
they swear under oath that they have probable cause, and not only say 
they have it, they spell it out. And judges, on appeal, can review it. 
If the judge who approved the search warrant was in error, they can 
reverse it or the evidence can be excluded from trial. So you go to a 
judge. We are not in any way changing that great principle that a U.S. 
Federal judge or a State judge would have to approve a search warrant. 
You are not changing in any way the principle that they have to have 
probable cause under oath that evidence exists at the scene of the 
place searched which would be relevant to an investigation. All of that 
is the same as it has always been.
  But the one critical thing--and this has been legitimated by courts 
and approved by the U.S. Supreme Court--is that you can, in certain 
cases, ask that the notice which you would normally give to the owner 
of the residence or the person who has custody and control of that 
location be delayed.
  Now, this can be absolutely critical in a case of national security. 
It is so important. Please, I want you to understand that. You may be 
able to go in that area and find names, phone numbers, records, or bank 
deposits that would identify a whole group of other people, and you are 
not ready to arrest them that moment because you don't know where they 
are located. You need to check this out and follow up on it. If you 
arrest that bad guy and give notice to the people right there, the 
whole world will know it, and they will spread the word and they will 
scatter. That is exactly what will happen. So that is why, in certain 
instances, law enforcement officers have sought, and courts have 
approved without the PATRIOT Act, delayed notice search warrants.
  So then when do you notify the person? All the PATRIOT Act says is 
that the police officers can delay notification for 30 days. At the end 
of that 30 days, if they don't come back to the court and show a legal 
basis to continue to delay to notify the defendant, they have to notify 
the defendant on the 30th day. That is all this Conference Report says. 
That is reasonable. It is not an abuse of the power of the Congress. It 
is not in any way contradictory to the great traditions of law 
enforcement in America. It has nothing to do with the President's 
Executive powers to fight a war. This is under the criminal law aspect 
of American justice.
  I asked for delayed notices on rare occasions when I was a Federal 
prosecutor. I am telling you, whether investigating a big drug gang or 
a Mafia group, these are the kinds of things which can make all the 
difference in the world. And it is even more important in terrorist 
investigations because these people will scatter and because it is a 
matter of life and death. That is all I am saying. There is nothing 
unusual or strange about it.
  The Department of Justice wrote a letter which said that a delayed 
notice warrant differs from an ordinary search warrant only in that the 
judge authorizes the officer executing the warrant to wait for a 
limited period before notifying the subject of the search because 
immediate notice would have an adverse result, as defined by statute, 
that could undermine the investigation. So this is all this is about. I 
think few people would dispute it. Yet we have a filibuster because 
some Senators apparently believe that 30 days destroys the 
Constitution. They believe that it violates the Constitution to ask the 
police officer to wait 30 days before they notify the defendant.
  The House of Representatives, by an overwhelmingly bipartisan vote of 
257 to 174, voted to allow the officers to delay 180 days. So now we 
have been here 3 days debating this issue this week. This is the No. 1 
complaint they have about the bill. I don't know what it is that got us 
to this point.
  The conference report before us today eliminates the possibility of 
an open-ended delayed notice. It requires notice within 30 days unless 
the court grants an extension. Current law allows for simply a 
reasonable delay, which is whatever the judge may decide in a given 
case. Well, they say, why do you need 30 days? Well, the Fourth Circuit 
found that 45 days is good enough. I will give this example which the 
Department of Justice gave: Operation Candy Box. A delayed notice was 
permitted in a multijurisdictional investigation targeting a Canadian-
based ecstasy and marijuana-trafficking organization. The delay allowed 
for a successful, uninterrupted, month-long investigation that resulted 
in the arrest of over 130 people. Without delayed notice, agents would 
have been forced to reveal the existence of the investigation 
prematurely.
  As a Federal prosecutor myself, I want to tell you, one of the 
biggest decisions in any investigation of any organized criminal group 
or terrorist group is the decision of when to conduct the takedown. 
When do you arrest them? Do you run out as soon as you know there is a 
group and you have

[[Page S1398]]

evidence on one of them--do you run out and grab that one? How stupid 
can you be? If you grab one, the rest will know it and know you are 
going to come after them; they are going to scatter or they will 
destroy evidence. They will run and hide, and they may create a sleeper 
cell in a different city and continue their plans to kill Americans or 
to sell dope or whatever it is they are doing illegally. So you have to 
plan the takedown.
  When you are dealing with cases involving life and death, you have to 
be very careful about it. Don't think the agents don't work with 
prosecutors and staff people and plan out these takedowns to the most 
minute detail. When do you do it? Do you catch six low-level flunkies 
and let the big guys get away? No. Someone might say the big guy is 
coming into town the next day, so we will have a team there and we will 
have probable cause to arrest him. Then you get a search warrant. When 
do you execute the warrant? You want to execute it at a time of your 
choosing so you can wrap up as many of the members of the organization 
as possible at one time. That is what it is all about.

  Sometimes you need to know more about this organization. You don't 
know all the people who are involved. That is where a delayed notice 
warrant can allow you to obtain information about other people who are 
involved and do further investigations and find out, maybe, that two or 
three dangerous criminals should also be arrested at or about the same 
time. They will provide you the probable cause to arrest them because 
you cannot arrest people without probable cause in America. You have to 
have evidence. You cannot just arrest somebody on suspicion.
  So where do you get the evidence? Some people in this Senate forget 
that police officers are not magicians; they have to gather evidence. 
How do you get it? One way you find out the evidence is to conduct a 
lawful search on a warrant approved by a Federal judge or a State 
judge. If it is a Federal crime, it would be a Federal judge. Then you 
may execute a delayed notice warrant, and you may find more evidence of 
other people that can be corroborated and you can build up probable 
cause. And instead of having probable cause to arrest just 2 
defendants, you may have probable cause to arrest 8 of them, and maybe 
you take down the whole sleeper cell. Maybe there are 8 in this town 
and 4 more in Boston and some more in San Diego or in Washington, DC. 
You can arrest all three or four cells at the same time. Would that not 
be the ideal thing?
  I am telling you that this is what law enforcement officers attempt 
to do every day. They do it according to the laws that we require.
  In 2002, the issuance of a delayed notice search warrant helped break 
a massive multistate methamphetamine ring. The delayed notice allowed 
investigators to locate illegal drugs, which provided further leads, 
eventually resulting in the seizure of mass quantities of drugs and the 
identification of those involved in the criminal organization. More 
than 100 people were charged with drug-trafficking offenses, and a 
number of them have been convicted.
  In another case, a delayed warrant was issued to search an envelope 
which was sent to the target of an investigation. An envelope had been 
sent to the person, and they got a warrant to search the envelope. The 
search confirmed that the target was operating an illegal money 
exchange and was funneling money to the Middle East, including to an 
associate of an Islamic jihad operative. Delayed notice allowed the 
investigators to conduct a search without compromising an ongoing 
wiretap they had been carrying on based on probable cause, and with the 
approval of a U.S. District judge. But they didn't just conduct a 
wiretap; they were conducting this wiretap and they needed to find out 
if money or drugs were moving so they could seize that or allow the 
package to continue and then arrest the person who received it.
  That is what we are talking about here. That is why there is nothing 
extreme in any way about the delayed notice search warrant law.
  Well, what about the national security letters? You have heard a lot 
about that issue. The complaint is that Senators have said this will 
allow you to obtain information from people not connected to terrorists 
or spies. The national security letters, which existed long before the 
PATRIOT Act, can only be in a certain specific and limited number of 
circumstances.
  Now, I will talk about those in a moment, but they are listed in 5 
statutes, so it is not an open-ended provision. It only deals with 
national security issues. The procedures set forth in this act which 
allow those letters to issue are in no way extreme. They in no way 
threaten the great liberties all of us share but indeed are essential 
tools in this age of national security threats to our country, and they 
can be critical, critical, critical facts for investigators to enable 
them to identify those cells which may be in this country trying to 
attack and kill American citizens, as we saw on September 11.
  I want to emphasize that national security letters existed long 
before the PATRIOT Act and can be used in only very limited 
circumstances for national security issues. In fact, it is a 
particularly valuable tool that is utilized frequently by 
investigators. The New York Times said there have been a lot of 
national security letters issued since 9/11. Well, we are doing a lot 
more investigation. Every FBI office in America is pursuing every lead 
that pops up, unlike what we were doing before 9/11, and are verifying 
and checking out and determining the kinds of things that are necessary 
to find out, such as if someone may be connected to a terrorist 
organization and may be planning an attack on the United States. Isn't 
that what we demanded after 9/11? But the numbers that have been 
published are clearly exaggerated. They are not accurate, and they have 
been criticized by the officials who are involved. I add that 
parenthetically.
  The PATRIOT Act originally made very few changes to the national 
security letter procedure. It merely made relevance the standard for 
obtaining a national security letter and allowed special agents in 
charge to issue them. The special agent in charge would be the special 
agent in charge of the FBI office in New York City, for example, or in 
Boston or in Birmingham, AL, and those special agents in charge 
supervise everyone in the office. They are considered to be high-
ranking FBI officials responsible for the law enforcement issues 
relating to their agency in that district. So this was what we 
originally passed.
  However, now under this conference report, the national security 
letters are to be used only for investigations involving terrorism and 
espionage, and they must pertain to ``an authorized investigation'' 
involving ``national security.''
  These are national security investigations. National security letters 
cannot be used to obtain unlimited categories of material. They can 
only be used to obtain very limited categories of material in the 
possession of third parties, not the defendant. The great protections 
against the searching of your home have not been undermined. What we 
are talking about here are records that are under the dominion and 
control of a third party. You can say they are your bank records, but 
they are the bank's records. You can say they are your telephone 
company records, but they are the telephone company's records.
  The law has always made a big distinction between the kind of proof 
you have to have for someone to come in and search your desk, to search 
your automobile, to search your home, than the kinds of procedures they 
have to go through to get the record at the local motel that might have 
your name on it. It is not your record, it is the motel's record. You 
have a diminished expectation of privacy. The courts have consistently 
held this view ever since the issue has been discussed. It is a 
fundamental part of daily law enforcement in America.
  So they can be used only to obtain these kinds of records, not 
records you have under your control that would require a search warrant 
approved by a judge on probable cause, as I discussed earlier, as you 
would in a delayed search warrant case. It is a big deal. I am telling 
you, in a case such as this, I bet you search warrants would be 30 
pages of affidavits to justify what they are searching for. But these 
are simply subpoenas, basically, for these records.
  These records, as I said, belong to companies, and the individuals to

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whom they refer have a reduced privacy interest in them. These national 
security letters cannot be used to obtain ``content information'' that 
involve any communications you may have made or the words of those 
communications with the phone company, but simply what the billing 
record said and the phone numbers you called. But you can't get, 
through a national security letter, the words of your phone call or 
intercept or record your phone call in any way, or your e-mails. The 
content of your e-mails can't be obtained with a national security 
letter. The national security letter is simply a request by a national 
security investigator for records.
  If the recipient such as the bank, for example, objects, the FBI 
cannot compel production without going to court. The conference report 
specifically allows the recipient, however, of a national security 
letter to move to quash or dismiss or modify the national security 
letter and to challenge the nondisclosure order that accompanies the 
national security letter, and to talk to their attorneys about it if 
they choose, and other people who may be necessary to comply with the 
national security letter.
  Some people say the nondisclosure requirement can keep you from 
speaking with your attorney. This legislation specifically allows you 
to talk to your attorney or anybody else who is related to it before 
you decide to utilize a motion to quash.
  Let me share this with you. Imagine, now, you are an investigator, an 
FBI agent, and you have serious cause to believe that an individual may 
be connected to a terrorist organization. You want to find out if they 
have been calling Kabul, Baghdad or Islamabad. It is critically 
important, at a preliminary stage in an investigation such as this--
critically important, I emphasize--that the people being investigated 
not know that they are being investigated, that the investigators are 
on to them. That is why we placed in the law the limitation that the 
person or entity subpoenaed should not go and tell the people that the 
Feds are out there asking for your bank records or your telephone 
records. How can you conduct an investigation? From these records is 
the way the police officers and FBI agents get the probable cause to 
conduct a search warrant.
  How do you get probable cause to conduct a search warrant? You take 
lesser steps to obtain information that is available to you, and it 
builds up until you get enough to have probable cause to go a judge to 
get a search warrant to search the home and you may even want to delay 
notice to the people at the home until you can be sure that everybody 
in this organization is known to you and they can all be arrested 
before they can get away. So that is what this is all about. It is 
perfectly logical and part of our law enforcement heritage.
  In the conference report that is before us, it also provides an 
express right to judicial review for all types of national security 
letters, allowing courts to modify or quash the order if compliance 
would be unreasonable, oppressive or otherwise unlawful. It also 
changed the certification requirement. It requires a higher level of 
certification before you can ask for nondisclosure in the issuance of a 
national security letter. The nondisclosure requirement is not 
automatic. Local FBI cannot ask it. The local special agent in charge 
can't ask for it. Now it has to be invoked by one of the top officials 
of the DOJ in Washington, an official who must certify that disclosure 
would ``endanger the national security of the United States.''
  I want to say that is too high a standard. We are going to fail to 
execute requests for mere documents in control of banks and telephone 
companies and motels and records of that kind because a DOJ official in 
Washington is going to be nervous about whether he has enough proof to 
certify that this matter would endanger the security of the United 
States. That is too high a standard. But it is in this bill because the 
civil libertarians wanted to put it in here.
  Any county district attorney in America this very day can issue a 
subpoena to a bank or to a telephone company to get your phone records 
or the records from your doctor. This is not unusual that investigators 
can obtain documents in the possession of third parties. Please hear 
me. I know Senator Kyl made the comment that it is easier for an 
investigator to obtain your business records relating to whether you 
have paid withholding tax than it is for an investigator, under this 
case, to get records of whether you are connected to a terrorist 
organization.
  I would add a few other examples. A Federal drug officer, a DEA 
agent, can walk into any pharmacy in America today and examine the 
pharmacy records that exist to see if somebody has submitted false 
documents, is overpurchasing drugs or the pharmacist is failing to keep 
records. He can examine all the records that are there. He doesn't have 
to have a warrant or a national security letter.
  The IRS agents investigating whether you paid your taxes can subpoena 
your bank records by an administrative subpoena that does not require a 
grand jury approval or approval of any prosecutor. He can do it as an 
part of an administrative subpoena because they are not your records. 
But if he goes into your house and tries to take your personal 
documents, that is not so because he has to have a search warrant. A 
provision requiring this high level of certification is important 
protection for sure, and the standard imposed on the top FBI official I 
believe is too high. I believe one day we are going to regret it.
  An express right to challenge the nondisclosure requirement is 
included in the conference report. An express right to disclose the 
receipt of a subpoena to a attorney is protected. There is the 
requirement that the Department of Justice Inspector General must audit 
certain past and future uses of national security letters and provide a 
public report on the aggregate number of national security letters 
issued concerning U.S. persons. But IRS agents out there in every 
community in America are issuing subpoenas for your records by the 
thousands every week. They don't have to maintain these records.
  Senator Feingold and others, I am sure, would be pleased to note that 
the House passed a 1-year misdemeanor for knowing and willful 
disclosure of a national security letter with no intent to obstruct the 
investigation, which the Senate dropped in conference. The House of 
Representatives' bill said if you violate the requirement that you not 
disclose, and run out and tell the people whose records have been 
subpoenaed, you would be subject to a misdemeanor. But, oh, no, they 
objected to that. So now, apparently, there is no penalty if someone 
violates the act and tells the terrorists that you are investigating 
them. That ought to make people happy. We ought to feel a lot better 
that our liberties are being protected.
  Under the conference report, recipients of a national security letter 
can challenge the nondisclosure requirement after 2 years, a time 
period where the national security interests involved will be 
dissipated. The Sununu bill on the floor today, that was designed to 
complement the conference report and to alleviate some concerns a few 
Senators had, allows nondisclosure to be challenged after 1 year and 
each and every year thereafter. Some opponents of the report wish to 
see sunsets placed on National Security Letters. National security 
letters have never been subject to sunset. They are currently governed 
by six permanent statutes in the code already. No abuses of national 
security letters have surfaced, and a New York Times article that 
suggests these large numbers have been issued contains many 
inaccuracies and that is not accurate.
  I want to emphasize that. Nondisclosure is absolutely critical in 
national security cases. Frankly, in reality, bankers and medical 
doctors and others who may have records subpoenaed or requested by the 
national security letter, for the most part, do not desire to tell the 
person if the FBI agent asks them not to. But they go to their lawyers, 
and we have gotten so lawyerly today, the lawyer may tell them: Well, I 
think you have an obligation to tell this bad guy that the FBI came by 
and picked up his records. If you don't tell him, maybe he can sue you.
  So this is a protection for the bank, for the phone company, for the 
doctor who gets these records subpoenaed because then he can rightly 
tell anybody who complains after the fact: I would have told you, but 
the Federal Government told me not to.

[[Page S1400]]

  Section 215, the FISA Court business record production orders, is 
another matter of importance. Section 215 orders for the production of 
business records allows the FBI to go to the FISA Court and seek these 
orders. You have to go to court now and seek a judicial order of the 
FISA Court for ``the production of tangible things, including books, 
records, papers, documents and other items'' for an investigation to 
obtain foreign intelligence information. It doesn't allow the FBI to go 
out and do it on their own. They have to go to court and present 
evidence that would justify production--basically, a form of subpoena 
authority. Section 215 orders must be preapproved by a judge and cannot 
be used to investigate ordinary crimes or even domestic terrorism, only 
foreign terrorism.
  Orders for the production of business records under the USA PATRIOT 
Act, section 215, are not and cannot be used for so-called fishing 
expeditions. The fishing expedition complaint is wrong--wrong--wrong--
for three reasons. First, section 215 orders are court orders that must 
be authorized by Federal judges prior to issuance. Judicial review will 
cull out fishing expedition requests. Second, section 215 orders are 
available only for authorized national security investigations, not 
your run-of-the-mill investigation, a category that certainly does not 
include fishing expeditions. And the conference report clarifies that 
the orders cannot be used for threat assessments. Third, rigorous 
guidelines issued by the Attorney General govern when the FBI may use a 
section 215 order.
  There has also been uproar over the three-part relevance test. The 
Senate bill included an unworkable and burdensome three-part relevance 
test. You recall--relevance plus. I opposed it. It was not good. I 
steadfastly believe that it was the kind of confusion that blocks 
legitimate action under this law and would undermine the ability for 
the investigators to do what we intended to authorize them to do. The 
test would have compromised the ability of the Government to get 
section 215 orders. The language of the three-prong test was ambiguous 
and would inevitably have resulted in major complications in terrorist 
investigations.
  As we saw by the attacks on 9/11, seemingly small or technical 
barriers can make a critical difference to the success of a terrorism 
investigation. That is exactly what the three-prong test would have 
done.
  Senator Kyl, who spoke earlier this afternoon, Senator Roberts, who 
is chairman of the Intelligence Committee, and I sent a letter to 
Chairman Specter, expressing our strong concerns with the three-prong 
test and asking him not to include it in the conference report. He did 
as we suggested. The conference report retains the three-part test only 
as a way to prove relevance. The conference report lists the three 
prongs of the Senate test as ways the materials sought are presumed to 
be relevant.
  No. 1, the records pertain to a foreign power or an agent of a 
foreign power; No. 2, the records are relevant to the activities of a 
suspected agent of a foreign power who is the subject of such 
authorized investigation; or, No. 3, the records pertain to an 
individual in contact with or known to a suspected agent of a foreign 
power.
  As Senator Patrick Leahy explained in 2001, the ranking Democrat on 
our committee:

       The FBI has made a clear case that a relevance standard is 
     appropriate for counterintelligence and counterterrorism 
     investigations as well as for criminal investigations.

  Let me just say this. Your county attorney in every county in America 
can issue a subpoena for your bank records, your telephone records, on 
the basis of relevance to an ongoing investigation.
  That is how subpoenas are issued. It has always been a relevance 
standard. I don't see anything unusual about this at all. We provided 
additional protection for relevance.
  The conference report also requires the application for a 215 order 
to include a statement of fact which shows ``reasonable grounds to 
believe that the records are relevant to an authorized national 
security investigation.'' The original PATRIOT Act simply required a 
showing that the records ``were sought'' for an authorized 
investigation. This is a Senate provision which was included in the 
conference report which certainly made it more difficult to obtain 
these national security letters, and I assume it made colleagues who 
have been objecting happy to see this higher burden of proof placed on 
the investigators. Frankly, I believe that was unnecessary.
  Both the conference report and bill we are currently debating--
Senator Sununu's PATRIOT Act Amendments bill--imposed new civil rights 
safeguards on the use of section 215 orders contained in the PATRIOT 
Act as it currently exists. So by blocking the PATRIOT Act which 
presently exists from being reauthorized by the Conference Report, 
civil rights are being diminished since the report provides enhanced 
protection.
  The conference report clarifies and makes clear that a recipient of a 
215 order has an explicit right to disclose or seek an order through an 
attorney and to challenge the order in court. Senator Sununu's bill 
which we are debating today and which I am certain will pass goes a bit 
further. I do not know that it is critical, but I am willing to accept 
things that are not perfect by my standards because I know we need to 
reauthorize the PATRIOT Act, and this is a condition of reauthorizing 
it. Senator Sununu's bill lays out the process by which a person 
receiving a section 215 production order may challenge the legality of 
that order. They can file a petition with the FISA Court, and that 
petition is ``immediately'' assigned to a judge who, in 72 hours after 
the assignment, ``shall conduct an initial review of the petition.''
  The conference report also retains a 4-year sunset on section 215. In 
other words, this provision will expire in 4 years unless reauthorized. 
I don't know why that is necessary, but people apparently believed it 
was, and so we put it in there.
  The conferees added a requirement that the Justice Department 
institute ``minimization procedures'' limiting the retention and 
dissemination of information obtained through a section 215 order for 
certain particularly sensitive material. The FBI request for these 
orders must be approved by one of three top officials at the FBI: the 
Director, the Deputy Director, or the Executive Assistant Director. One 
of those three top officials in the FBI has to sign off on it if it 
includes library records, medical records that would identify a person, 
library patron lists, book sales records, firearms sales records, tax 
return records, or educational records. This is a Senate provision that 
was accepted by the conference.
  The IRS agents can walk in any time and get your tax records, for 
heaven's sake, but we can't get a terrorist's tax records without going 
through the FISA Court. A DEA agent can go into a pharmacy and examine 
every record in there to find out how many drugs you may have bought or 
anybody else may have bought. The IRS can subpoena your bank records by 
administrative subpoena without even the approval of a Federal 
prosecutor. This is not any erosion of American liberties, is the only 
point I am making.
  Again, this does not allow them to go into your house, into the desk 
you own at your office, and search your personal belongings. It does 
not allow any Federal agent to open the trunk of your automobile, to go 
in your automobile, open your glove compartment, and seize anything you 
may have that is in your personal custody and control. You still have 
to have a search warrant approved by a judge on probable cause. This 
involves materials held by third parties.
  Documents which can be obtained in this fashion are limited to the 
types of tangible things which could be obtained under grand jury 
subpoena or other Federal court orders, and the FBI must craft 
procedures to minimize retention and dissemination of materials 
gathered under this provision. OK. We will try to destroy them in so 
many months to minimize the danger that somebody will have a file on 
you. I am telling you, if you like those shows on television, the real-
life cold-case files, you see where the records held for 10, 15 years 
turn out to be the key documents in convicting some murderer 15 years 
down the road. I really do not like this idea that a properly obtained 
document or record kept as part of a confidential investigative file 
has to be destroyed prematurely. But that is what we have here so 
people's liberties won't be undermined.
  Under the conference report, the Department of Justice must conduct 
two

[[Page S1401]]

audits of the FBI's use of 215 orders, enhanced congressional and 
public reporting is required, and the inspector general is required to 
conduct an audit of all section 215 requests since the passage of the 
PATRIOT Act. The ironic thing is if those who support a filibuster 
succeed in preventing a vote on the bill, these additional civil 
liberties safeguards won't become law.
  The language about the libraries included in Senator Sununu's bill is 
also a concern of mine. Opponents of section 215 have tried to create 
the impression that the FBI is using section 215 to visit libraries 
nationwide to check the reading records of ordinary Americans. How 
often have you heard that?
  Rebecca Mitchell, director of the Alabama Public Library Service, has 
a different point of view. She wrote me a letter on August 15 and said:

       I want to personally thank you for your strong leadership 
     to stand on the PATRIOT Act. Our libraries should not be used 
     as a tool for terrorism. I know you have received negative 
     comments from the American Library Association on your stand, 
     but this is not the opinion of most librarians in our State. 
     Please continue to fight to keep our Nation free.

  The point I tried to make was that there is no special protection for 
a library record which would bar a Federal terrorist investigator from 
obtaining those records. Your local county attorney can subpoena them 
the same as any Federal investigator to try to stop a terrorist.
  Neither section 215 nor any other provision of the PATRIOT Act 
specifically mentions libraries or is directed at libraries. 
Nevertheless, as Director Mitchell points out, it is important that 
library records remain obtainable as one of the kinds of ``tangible 
records'' a section 215 order can reach. Intelligence or investigators 
may have good and legitimate reasons for extending to library/bookstore 
records.
  I would just point out that I prosecuted a number of cases. I 
prosecuted one guy--they made a television show about it--and we got 
his records and got a search warrant and seized items he had. He had a 
book called ``Death Dealers Manual.'' He had a book called ``Deadly 
Poisons.'' That was relevant evidence to help convict him of a crime.
  So we are not going to allow a prosecutor access to this information. 
A guy may say: I don't know anything about medicine; I have never 
studied it. If the prosecutor goes down and checks with the library and 
subpoenas the records and sees that he bought three books on medicine, 
that may be relevant evidence to an important case. So to say that 
somehow library records can't be subpoenaed as part of an investigation 
goes beyond the pale, frankly. But because the Library Association had 
a fit and they complained, we have put in special protections for 
libraries, virtually like the spousal privilege or the priest-penitent.
  I will conclude my remarks by saying that I do remain frustrated--not 
at the good intentions of my colleagues. They are well intentioned. Our 
colleagues really want to improve liberty in America. But the truth is, 
they have gotten off base. We have let outside groups with agendas 
confuse people about this legislation--confuse them as to whether 
historic civil liberties are being undermined when they are not--and as 
a result, we have had more difficulty passing this bill than we should 
have.
  I see the Senator from Texas is presiding. I appreciate his patience 
in listening to me. As a former attorney general of Texas and a former 
member of the Supreme Court of Texas, he is a thorough scholar in these 
issues. I am proud to say that though he wouldn't agree with everything 
I have said, but in general he agrees with my view that this act is 
sound. He has been a steadfast advocate for it and understands the 
necessity of it and that it does not undermine any of the classical 
liberties we as Americans take for granted.
  I yield the floor.
  Mr. OBAMA. Mr. President, 4 years ago, following one of the most 
devastating attacks in our Nation's history, Congress passed the USA 
PATRIOT Act to give our Nation's law enforcement the tools they needed 
to track down terrorists who plot and lurk within our own borders and 
all over the world--terrorists who, right now, are looking to exploit 
weaknesses in our laws and our security to carry out even deadlier 
attacks than we saw on September 11th.
  We all agreed that we needed legislation to make it harder for 
suspected terrorists to go undetected in this country. Americans 
everywhere wanted that.
  But soon after the PATRIOT Act passed, a few years before I ever 
arrived in the Senate, I began hearing concerns from people of every 
background and political leaning that this law didn't just provide law 
enforcement the powers it needed to keep us safe, but powers it didn't 
need to invade our privacy without cause or suspicion.
  Now, at times this issue has tended to degenerate into an ``either-
or'' type of debate. Either we protect our people from terror or we 
protect our most cherished principles. But that is a false choice. It 
asks too little of us and assumes too little about America.
  Fortunately, last year, the Senate recognized that this was a false 
choice. We put patriotism before partisanship and engaged in a real, 
open, and substantive debate about how to fix the PATRIOT Act. And 
Republicans and Democrats came together to propose sensible 
improvements to the Act. Unfortunately, the House was resistant to 
these changes, and that's why we're voting on the compromise before us.
  Let me be clear: this compromise is not as good as the Senate version 
of the bill, nor is it as good as the SAFE Act that I have cosponsored. 
I suspect the vast majority of my colleagues on both sides of the aisle 
feel the same way. But, it's still better than what the House 
originally proposed.
  This compromise does modestly improve the PATRIOT Act by 
strengthening civil liberties protections without sacrificing the tools 
that law enforcement needs to keep us safe. In this compromise:
  We strengthened judicial review of both national security letters, 
the administrative subpoenas used by the FBI, and Section 215 orders, 
which can be used to obtain medical, financial and other personal 
records.
  We established hard-time limits on sneak-and-peak searches and limits 
on roving wiretaps.
  We protected most libraries from being subject to national security 
letters.
  We preserved an individual's right to seek counsel and hire an 
attorney without fearing the FBI's wrath.
  And we allowed judicial review of the gag orders that accompany 
Section 215 searches.
  The compromise is far from perfect. I would have liked to see 
stronger judicial review of national security letters and shorter time 
limits on sneak and peak searches, among other things.
  Senator Feingold has proposed several sensible amendments--that I 
support--to address these issues. Unfortunately, the Majority Leader is 
preventing Senator Feingold from offering these amendments through 
procedural tactics. That is regrettable because it flies in the face of 
the bipartisan cooperation that allowed the Senate to pass unanimously 
its version of the Patriot Act--a version that balanced security and 
civil liberty, partisanship and patriotism.
  The Majority Leader's tactics are even more troubling because we will 
need to work on a bipartisan basis to address national security 
challenges in the weeks and months to come. In particular, members on 
both sides of the aisle will need to take a careful look at President 
Bush's use of warrantless wiretaps and determine the right balance 
between protecting our security and safeguarding our civil liberties. 
This is a complex issue. But only by working together and avoiding 
election-year politicking will we be able to give our government the 
necessary tools to wage the war on terror without sacrificing the rule 
of law.
  So, I will be supporting the PATRIOT Act compromise. But I urge my 
colleagues to continue working on ways to improve the civil liberties 
protections in the PATRIOT Act after it is reauthorized.
  Mrs. FEINSTEIN. Mr. President, today the Senate will take up the 
conference report on the USA-PATRIOT Reauthorization and Improvement 
Act, as modified by an agreement reached last week.
  I am the original Democratic cosponsor of the unanimously passed 
Senate bill, as well as a cosponsor of the Combating Methamphetamine 
Epidemic

[[Page S1402]]

Act and the Reducing Crime and Terrorism at America's Seaports Act, 
both of which are incorporated into the conference report.
  I will vote in favor of cloture on this bill, and will vote in favor 
of the bill when and if it comes to a vote.
  At the end of last year, after careful consideration, I voted against 
cloture on the conference report. I took this step because of two basic 
concerns, both of which have been substantially diminished by the 
agreement which is before us today. These changes, and the fact that a 
consensus agreement has been reached, are the reason I am changing my 
position.
  My first concern was with some of the provisions of the conference 
report. Specifically, the conference report did not provide adequate 
judicial review of so-called gag orders associated with the issuance of 
national security letters, and required those who wanted to contest 
these orders before a court to disclose information about their legal 
counsel to the FBI. This was unnecessary and inappropriate, and it has 
been changed.
  The revised conference report clarifies that a gag order will be 
reviewed by a Federal court and ensures that this review will include 
an inquiry into whether the Government is acting in bad faith. The 
compromise also eliminates the onerous requirement of prior 
notification to the FBI about legal counsel.
  On the other hand, the revised conference report does not go as far 
as I would have preferred. It does not adopt the original Senate 
language with respect to the standard to be applied for granting a 
Foreign Intelligence Surveillance Act warrant for physical items, 
including business records. This issue, usually referred to by its 
PATRIOT Act section number, 215, remains very controversial, and I 
believe the language could permit inappropriate fishing expeditions if 
not carefully monitored. However, the agreed-upon language does make 
clear that libraries performing traditional functions are largely 
exempt from the more intrusive aspects of the law.
  Importantly, the conference report retains and extends sunset 
provisions on the most controversial provisions, including section 215. 
This is critical, as these sunset provisions, which expire in 2009, are 
an important element of the continued vigorous oversight necessary to 
ensure this law is carried out in an appropriate manner.
  The second concern I had was that it appeared that efforts to forge a 
compromise bill had fallen apart, with acrimony and rancor marking the 
progress of negotiations. This was, in my view, tragic.
  I have long been a supporter of the USA-PATRIOT Act. I believe it is 
a critical tool in defending the Nation against terrorism. But I 
believe that it is a tool that is most effective when it is accepted as 
a bipartisan, nonpolitical, effort. Simply put, if there is one area 
where partisan debate and petty politics have no place, it is in the 
area of national defense against terrorism.
  So I believed strongly that a compromise bill supported by Members of 
both parties was essential. I recognize that achieving consensus means, 
almost by definition, that nobody will be completely happy with the 
outcome. As I noted, there are changes I would have made to this law, 
and I am sure most of my colleagues, Democrats and Republicans, would 
like other changes. But compromise and consensus require concessions 
and flexibility. That is why I will vote today against cloture, and why 
I plan to vote for the bill itself.
  I explained my views in a letter I sent to the Attorney General in 
December. In that letter I explained, and I quote:

       It was clear to me that Senate and House negotiators had 
     come very close to reaching agreement on the Conference 
     Report. I believe this was critical, because only through 
     such a consensus approach can we ensure that the Patriot Act 
     does not continue to be polluted with partisan rancor. This 
     law is extremely important to the safety of America, and its 
     effectiveness depends in large part on ordinary Americans 
     believing it is a product not of partisan politics, but of 
     reasoned debate and compromise. Because I believed consensus 
     was so close at hand, and so important, I voted to provide 
     Congress additional time to resolve the last points of 
     disagreement.
       Thus I was disheartened to hear that the Administration has 
     determined not to encourage further discussion on improving 
     and refining the Conference Report--rather, to stand fast, 
     and urge Senators to change their votes. I hope that this is 
     not the case. . . .
       With that hope, I ask that you direct your staff to work 
     with both Republicans and Democrats to address the few 
     remaining issues. I am confident that good-faith discussion, 
     honest debate, and careful drafting can reduce, perhaps even 
     eliminate, some of the points of disagreement. . . .
       It is critical that the Congress and the Administration 
     demonstrate our ability to work towards consensus and 
     agreement. I hope you will work with me to that end.

  The USA-PATRIOT Act has come to be terribly misunderstood. Some think 
it is related to Guantanamo Bay and the detention of prisoners. Others 
are convinced that it authorizes torture or the secret arrest of 
Americans. It does none of these things.
  At the same time, some have irresponsibly sought to characterize 
anyone who seeks to improve, or criticize, the law as somehow ``playing 
into the hands of the terrorists.'' They have implied that the USA-
PATRIOT Act would expire in its entirety, and that we would be left 
with no defenses against terrorist attacks. This, too, is untrue.
  When I spoke on this floor in December, advocating working together, 
I said, ``Congress has a long, and honorable, tradition of putting 
aside party politics when it comes to national security . . . it is 
critical that this approach be carried forward to the end, and that 
Congress reauthorize the USA-PATRIOT Act in a way that Americans can be 
confident is not the product of politics.''
  I am pleased that we followed that tradition and that we put aside 
our differences and reached agreement. The fact that the White House 
and the Attorney General backed down from their intransigence and were 
willing to discuss and compromise is also a welcome change, and 
hopefully a sign of a more open approach to these issues in the future.
  I expect this bill will pass into law. I believe it will make America 
safer. It is the responsibility of the Congress to ``provide for the 
Common Defense,'' and I believe we live up to that duty in this bill.
  But our job will not end here. We must immediately turn to our 
oversight responsibilities. For instance, I understand that Senator 
Specter will be continuing his inquiry into the NSA Surveillance 
Program, and tomorrow the Senate Intelligence Committee will hopefully 
agree to take up their oversight responsibilities with respect to this 
program. The Judiciary Committee will also soon be holding a hearing 
designed to look at the FBI's progress in accepting its newly expanded 
intelligence missions and assess whether these efforts have been 
successful and whether they conform with the rule of law.
  I look forward to expanding on the spirit of compromise that this 
bill represents.
  I ask unanimous consent the letter to the Attorney General dated 
January 9, 2006, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                                  U.S. Senate,

                                  Washington, DC, January 9, 2006.
     Hon. Alberto Gonzales,
     Attorney General of the United States, Department of Justice, 
         Washington, DC.
       Dear Mr. Attorney General, Last month the Senate decided to 
     continue debate on the USA-Patriot Act Reauthorization and 
     Improvement Act conference report, and extended the sixteen 
     provisions of the USA-Patriot Act until February 3, 2006. 
     Although I am the original Democratic co-sponsor of the 
     unanimously passed Senate bill, I voted to continue debate. I 
     explained my reasons at length on the floor, but in summary 
     they are simple.
       It was clear to me that Senate and House negotiators had 
     come very close to reaching agreement on the Conference 
     Report. I believe this was critical, because only through 
     such a consensus approach can we ensure that the Patriot Act 
     does not continue to be polluted with partisan rancor. This 
     law is extremely important to the safety of America, and its 
     effectiveness depends in large part on ordinary Americans 
     believing it is a product not of partisan politics, but of 
     reasoned debate and compromise. Because I believed consensus 
     was so close at hand, and so important, I voted to provide 
     Congress additional time to resolve the last points of 
     disagreement.
       Thus I was disheartened to hear that the Administration has 
     determined not to encourage further discussion on improving 
     and refining the Conference Report--rather, to stand fast, 
     and urge Senators to change their votes. I hope that this is 
     not the case.

[[Page S1403]]

       With that hope, I ask that you direct your staff to work 
     with both Republicans and Democrats to address the few 
     remaining issues. I am confident that good-faith discussion, 
     honest debate, and careful drafting can reduce, perhaps even 
     eliminate, some of the points of disagreement.
       As I understand it, the key remaining points involve: (1) 
     the standard to be applied by courts in determining whether 
     to issue a so-called ``gag order'' in the context of National 
     Security Letters; (2) the time limitations applicable to 
     delayed-notice search warrants; and (3) the legal standard 
     applicable to orders to permit seizure of physical items 
     pursuant to the Foreign Intelligence Surveillance Act 
     (Section 215).
       Although I am not an appointed conferee, I have asked my 
     staff to work with representatives from the Department of 
     Justice (including the Federal Bureau of Investigation) and 
     the Office of the Director of National Intelligence. I ask 
     you to facilitate that work.
       It is critical that the Congress and the Administration 
     demonstrate our ability to work towards consensus and 
     agreement. I hope you will work with me to that end.
           Yours truly,
                                                  Dianne Feinstein
                                                     U.S. Senator.

  Mr. BYRD. Mr. President, as the Senate considers legislation to 
reauthorize the PATRIOT Act, I am concerned that these efforts fall far 
short in protecting the constitutional rights of American citizens.
  Last December, a bipartisan group of Senators, including myself, was 
rightly concerned about the PATRIOT Act conference report's failure to 
safeguard civil liberties, and the Senate rightly rejected that 
conference report.
  Now we have a bill that purports to address those earlier concerns 
but in fact fails to do so.
  It is unfortunate that valiant efforts by Senators on both sides of 
the aisle have not produced more meaningful changes to the PATRIOT Act. 
Now we are faced with an alternative that is weak and unacceptable. 
This bill does not make the essential adjustments needed to protect the 
rights of the American people.
  While this bill makes some changes, such as clarifying that 
recipients of national security letters do not have to disclose to the 
FBI whether they consult an attorney, most of the so-called 
improvements are anemic. Worse still, section 215 of the PATRIOT Act, 
which casts the net of surveillance so wide as to ensnare virtually any 
law-abiding citizen's business or medical records, has remained 
untouched and unimproved.
  This bill pays lip service to judicial review of gag orders placed on 
recipients of section 215 business records and the national security 
letters. However, the bill goes on to set a nearly insurmountable 
barrier to Americans who wish to challenge the gag order or the seizure 
of their records. The bill requires that the recipient prove that the 
Government acted in bad faith in obtaining the information. An 
individual may not challenge a gag order for a year, infringing on that 
individual's right to seek redress in their own defense.
  Under the current ``improvement'', the Government may conduct ``sneak 
and peek'' searches, without notifying individuals for 30 days. This is 
more than a three-fold increase in the time period for notification 
that the Senate bill allowed.
  Safety, the American people are told, involves a trade. They are told 
they must surrender their liberty in order to preserve their safety. 
This Orwellian compact is an insult to the constitutional liberties 
guaranteed to American citizens.
  Let me be clear. No one in this Chamber discounts the responsibility 
of government to keep the American people safe in their homes. Keeping 
the homeland safe obviously must be of the utmost concern for the 
Nation and this Congress. But such efforts cannot come at the expense 
of civil liberties. Freedom and safety are not mutually exclusive.
  All Americans know the threat that al-Qaida poses to our country. 
Osama bin Laden and his ilk must be prevented from executing another 
terrorist attack on our country. But there are many ways to fight al-
Qaida.
  One of the ways is to protect those same freedoms that the Taliban 
took away from the people of Afghanistan living under their tyrannical 
rule. When Americans are free to speak our minds, when we are free from 
the intrusions of Big Brother, when we are free to exercise--rather 
than sacrifice--our most prized protections, that is a blow against 
those who seek to denigrate our country and our Constitution.
  If there is any question about the seriousness with which we as a 
body hold our Nation's security, let us recall last July, when 100 
hundred Senators stood together--something virtually unheard of in the 
current divisive and partisan climate. On July 29, 2005, the Senate 
came together to protect the Constitution and the basic rights it 
affords our citizens. Senators from every State of the Union, from 
every political persuasion, agreed to a version of the PATRIOT Act that 
would reauthorize the provisions that were set to expire and which 
provided the Government with the tools to aggressively pursue the war 
on terror, while protecting the rights of law-abiding citizens. We 
demonstrated that as a bipartisan body, we could stand strong against 
the enemy while preserving the privacy of our citizens. Sadly, the 
strength and zeal with which we once came together have languished, and 
the hopes of meaningful improvement of the PATRIOT Act have been 
abandoned.
  We must continue to make national security our top priority, as it 
always has been, but we can do that without sacrificing sacred 
liberties. I cannot support this watered-down version of an improved 
PATRIOT Act. The safeguards in this bill are regrettably thin, and we 
must not claim that such shabby protections of the constitutional 
rights of our people are the best that we can do.
  The PRESIDING OFFICER (Mr. Cornyn). The Democratic leader.

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