[Congressional Record Volume 152, Number 22 (Monday, February 27, 2006)]
[Senate]
[Pages S1495-S1498]
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 Senate will 
resume consideration of S. 2271, which the clerk will report.
  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.

  Pending:

       Frist amendment No. 2895, to establish the enactment date 
     of the Act.
       Frist amendment No. 2896 (to amendment No. 2895), of a 
     perfecting nature.

  PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Madam President, as we begin the debate and discussion 
on the USA PATRIOT Act, I urge my colleagues to invoke cloture to cut 
off debate tomorrow when the vote is scheduled at 2:30, and then 
proceed to pass the PATRIOT Act.
  The PATRIOT Act was passed by the Congress and signed into law by the 
President shortly after September 11, 2001, to provide additional tools 
for law enforcement, and it was reviewed extensively by the Committee 
on the Judiciary, which I chair, last year; and the Judiciary Committee 
came out with a unanimous report, with all 18 members on the committee 
concurring in the final product.
  We considered this a unique, if not remarkable event, considering 
that our Judiciary Committee has people at all positions on the 
political spectrum. So to have unanimous agreement was, we thought, 
quite an accomplishment. When the matter came to the floor of the 
Senate, it was passed by unanimous consent, which again was unique, if 
not remarkable, in that on a matter as complex and controversial as the 
PATRIOT Act all of the Senators were in agreement that it should be 
enacted.
  We then went to conference with the House of Representatives and, as 
expected, the House had different views than what the Senate had in 
mind. But we worked through in a collegial way with Chairman 
Sensenbrenner and others on the House side and came to a conference 
report which we submitted to the Senate.
  We fell short of having enough votes to impose cloture when 
objections were reached to a number of provisions which had been 
included in the conference report.
  There have since been some changes made in the legislation which is 
pending before the Senate. I compliment my colleagues, Senator Sununu, 
Senator Craig, Senator Murkowski, who is presiding today, and Senator 
Hagel, for a number of additions which led those four Republican 
Senators who had not voted for cloture to find the PATRIOT Act 
acceptable, taking the conference report and making these additions.
  It is our expectation that there will be a number of Democrats, I 
think most of whom oppose cloture, so we have an expectation of 
receiving 60 votes tomorrow to be able to move the bill ahead.
  The changes which were made as a result of these modifications 
provide for explicit judicial review of a section 215 nondisclosure 
order, a provision to remove from the conference report the requirement 
that a person inform the FBI of the identity of an attorney to whom 
disclosure was made or will be made to obtain legal advice or legal 
assistance with respect to a national security letter, and an 
additional provision to clarify current law that libraries that have 
been functioning in their traditional roles, including providing 
Internet access, are not subject to section 2709 national security 
letters.
  These changes were, in my opinion, not major but helpful in the sense 
they have satisfied a number of Senators, I think, and are very 
constructive and enable us to move forward, which I expect will enable 
us to obtain cloture.
  With the revised bill which is now before the Senate for a cloture 
vote tomorrow, it is my hope my colleagues will cut off debate, invoke 
cloture, and let us move ahead to the passage of the PATRIOT Act. It is 
not a bill to my precise satisfaction, but in the Congress of the 
united States, we reach accommodations and we reach compromises. My 
preference would have been to have the Senate bill enacted, but there 
were significant concessions made on both sides, especially by the 
House of Representatives, in agreeing to a 4-year sunset provision.
  What I intend to do tomorrow is to propose additional legislation in 
this field which would take the current bill with the improvements made 
by Senator Sununu and his group and add a number of additional 
safeguards on civil liberties which will improve the bill even further, 
in my opinion, and to consider that on additional legislation in the 
Senate.
  In so doing, I fully realize we will have to go through the 
legislative process. We will have hearings in the Judiciary Committee. 
We will make this the subject of oversight on what the law enforcement 
officials, specifically the FBI, will be doing, and we will ultimately, 
hopefully, report out of the Judiciary Committee a bill with the 
provisions which I am now about to enumerate which will, if successful 
in conference and to be signed by the President into law, return the 
bill to its form which passed the Judiciary Committee unanimously last 
year and passed the Senate unanimously.
  The provisions in the bill which I will introduce tomorrow--I wanted 
to give my colleagues notice of what I intend to do--would be a 
provision, first, on the notice on search warrants to require that the 
target receive notification of the execution of a delayed notice search 
warrant within 7 days as the Senate-passed PATRIOT Act provided. The 
conference report provides for notice within 30 days, which was a 
significant compromise when the House of Representatives moved from 180 
days to 30 days and the Senate moved from 7 days to 30 days, but it 
continues to be my view that the 7-day requirement is the best 
requirement.
  The bill will further provide that section 215 will have the Senate-
passed three-part test which will require a statement of facts 
accompanying an application to show that the records sought, first, 
pertained to a foreign power or an agent of a foreign power, second, 
relevant to the activities of a suspected agent of a foreign power who 
is the subject of an authorized investigation, or three, pertain to an 
individual in contact with a suspected agent of a foreign power.
  I will put in the Record a memo detailing the differences between the 
Senate bill and the House bill and the conference report.
  This provision goes to the heart of strenuous objections raised by 
people who filibustered the bill who objected to a fourth provision 
which gave the judge discretion to allow for a court order if there 
were a terrorism investigation involved generally which did not have 
one of this three-part test.
  My view is that the three-part test is decisively preferable, 
although I do think in the spirit of compromise on our bicameral 
legislation, having the discretion of the judge to authorize the order 
if he found it warranted in light of the terrorism investigation was 
acceptable. This is preferable, and this will be included in the new 
bill to be introduced.
  A third change will provide for judicial review of national security 
letters to eliminate the conclusive presumption in the conference 
report on the national security letter provision. The bill removes the 
ability of the Government to prevent judicial review of the 
nondisclosure requirement if it certifies in good faith that 
``disclosure may endanger the national security of the United States or 
interfere with diplomatic relations.''
  This provision in the conference report was identical with what 
passed the Judiciary Committee unanimously and was adopted unanimously 
by the Senate. Those who have objected to this conclusive presumption 
say it was overlooked and that on further consideration they objected 
to it.
  Upon additional analysis, it is my view this conclusive presumption 
is better out of the report, which gives the court the discretion to 
allow for the judicial review of these national security letters.

[[Page S1496]]

  A fourth provision involves judicial review of the section 215 order 
nondisclosure requirement and it eliminates the mandatory 1-year 
waiting period for judicial review of nondisclosure requirement on 215 
orders. The additions by Senator Sununu and his colleagues provide for 
a 1-year waiting period. My own view is it is preferable there not be a 
waiting period at all, that the court have the discretion to enter the 
orders immediately if it finds cause to do so.
  The fifth provision of the legislation which I intend to introduce 
tomorrow adds a 4-year sunset to the national security letter with 
authorities created in the conference report so that the bill provides 
that on December 31, 2009, the law governing national security letters 
will be returned to what it was in February of the year 2006.
  Here again we have a situation where the PATRIOT Act did not deal 
with national security letters, but this, again, is a tightening up of 
the bill to provide additional safeguards for civil liberties.
  So what we have here, in essence, is the Senate bill which passed the 
committee unanimously and the Senate unanimously was then modified by a 
conference report which, to repeat--I don't like to do it, but it is 
worth a summary--I found acceptable; not as good as the Senate bill but 
acceptable. Then we have these three provisions added by Senator Sununu 
and his group--again giving them credit--which has made it acceptable 
to those four Republican Senators and I believe enough Democrats to get 
the 60 votes, perhaps additional votes, to be able to submit the bill 
to the House of Representatives for its consideration and, hopefully, 
ultimate passage to be signed by the President, which is an acceptable 
bill; again, not as good as the Senate bill but acceptable.
  I want my colleagues who oppose the bill in the form submitted for 
cloture tomorrow to know that if the issue is not concluded, I will be 
introducing legislation which will bring back the original Senate bill 
with some additional improvements, and between now and tomorrow, we 
will be soliciting cosponsors to see if others will choose to support 
this bill which, as I say, returns the essentials of the Senate bill 
with some improvements. The commitment is made in my capacity as 
chairman that we will proceed to have oversight hearings, that the 
Director of the FBI is due in on March 29. He will be questioned about 
these specific provisions, asked for justification for the more 
restrictive provisions which are in the conference report, plus the 
provisions by Senator Sununu and his colleagues, and there will be 
continuing oversight in the interim.
  We will have hearings on the legislation which I intend to introduce 
tomorrow, looking toward the prospect of ultimately passing it, if it 
is passed by the Senate and if it is submitted to the House in 
conference and that turns out to be the bicameral will of the two 
bodies.
  I do believe that where we are now with the conference report and the 
additions, we have an acceptable bill--not as good as it could be--and 
we will attempt to perfect it even more as I have outlined.
  I ask unanimous consent that a copy of the legislation which I intend 
to introduce tomorrow be printed in the Record so my colleagues can see 
it, together with the memorandum which I described in the course of my 
discussion.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. __

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. LIMITATION ON REASONABLE PERIOD FOR DELAY.

       Section 3103a(b)(3) of title 18, United States Code, is 
     amended by striking ``30 days'' and inserting ``7 days''.

     SEC. 2. JUDICIAL REVIEW OF FISA ORDERS AND NATIONAL SECURITY 
                   LETTERS.

       (a) FISA.--Subsection (f) of section 501 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is 
     amended by striking paragraphs (2) and (3) and inserting the 
     following:
       ``(2)(A) A person receiving an order under this section may 
     challenge the legality of that order, including any 
     prohibition on disclosure, by filing a petition with the pool 
     established by section 103(e)(1).
       ``(B) The presiding judge shall immediately assign a 
     petition submitted under subparagraph (A) to 1 of the judges 
     serving in the pool established by section 103(e)(1).
       ``(C)(i) Not later than 72 hours after the assignment of a 
     petition under subparagraph (B), the assigned judge shall 
     conduct an initial review of the petition.
       ``(ii) If the assigned judge determines under clause (i) 
     that--
       ``(I) the petition is frivolous, the assigned judge shall 
     immediately deny the petition and affirm the order; or
       ``(II) the petition is not frivolous, the assigned judge 
     shall promptly consider the petition in accordance with the 
     procedures established pursuant to section 103(e)(2).
       ``(D)(i) The assigned judge may modify or set aside the 
     order only if the judge finds that there is no reason to 
     believe that disclosure may endanger the national security of 
     the United States, interfere with a criminal, 
     counterterrorism, or counterintelligence investigation, 
     interfere with diplomatic relations, or endanger the life or 
     physical safety of any person. If the judge does not modify 
     or set aside the order, the judge shall immediately affirm 
     the order and order the recipient to comply therewith. The 
     assigned judge shall promptly provide a written statement for 
     the record of the reasons for any determination under this 
     paragraph.
       ``(ii) If the judge denies a petition to modify or set 
     aside a nondisclosure order, the recipient of such order 
     shall be precluded for a period of 1 year from filing another 
     such petition with respect to such nondisclosure order.
       ``(3) A petition for review of a decision to affirm, 
     modify, or set aside an order, including any prohibition on 
     disclosure, by the United States or any person receiving such 
     order shall be to the court of review established under 
     section 103(b), which shall have jurisdiction to consider 
     such petitions. The court of review shall provide for the 
     record a written statement of the reasons for its decision 
     and, on petition of the United States or any person receiving 
     such order for writ of certiorari, the record shall be 
     transmitted under seal to the Supreme Court, which shall have 
     jurisdiction to review such decision.''.
       (b) Judicial Review of National Security Letters.--Section 
     3511(b) of title 18, United States Code, is amended--
       (1) in paragraph (2), by striking ``If, at the time of the 
     petition,'' and all that follows through the end of the 
     paragraph; and
       (2) in paragraph (3), by striking ``If the recertification 
     that disclosure may'' and all that follows through ``made in 
     bad faith.''.

     SEC. 3. FACTUAL BASIS FOR REQUESTED ORDER.

       Section 501(b)(2)(A) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)(A)) is amended 
     to read as follows:
       ``(A) a statement of facts showing that there are 
     reasonable grounds to believe that the records or other 
     things sought--
       ``(i) are relevant to an authorized investigation (other 
     than a threat assessment) conducted in accordance with 
     subsection (a)(2) to obtain foreign intelligence information 
     not concerning a United States person or to protect against 
     international terrorism or clandestine intelligence 
     activities; and
       ``(ii) either--

       ``(I) pertain to a foreign power or an agent of a foreign 
     power;
       ``(II) are relevant to the activities of a suspected agent 
     of a foreign power who is the subject of such authorized 
     investigation; or
       ``(III) pertain to an individual in contact with, or known 
     to, a suspected agent of a foreign power; and''.

     SEC. 4. NATIONAL SECURITY LETTER SUNSET.

       Section 102 of the USA PATRIOT Improvement and 
     Reauthorization Act of 2005 (H.R. 3199, 109th Congress, 2d 
     Session) is amended by adding at the end the following:
       ``(c) Other Sunsets.--
       ``(1) In general.--Effective December 31, 2009, the 
     following provisions are amended so that they read as they 
     read on February 27, 2006:
       ``(A) Section 2709 of title 18, United States Code.
       ``(B) Sections 626 and 627 of the Fair Credit Reporting Act 
     (15 U.S.C. 1681u, 1681v).
       ``(C) Section 1114 of the Right to Financial Privacy Act 
     (12 U.S.C. 3414).
       ``(2) Exception.--With respect to any particular foreign 
     intelligence investigation that began before the date on 
     which the provisions referred to in paragraph (1) cease to 
     have effect, or with respect to any particular offense or 
     potential offense that began or occurred before the date on 
     which such provisions cease to have effect, such provisions 
     shall continue in effect.''.

     SEC. 5. RULE OF CONSTRUCTION.

       Amendments to provisions of law made by this Act are to 
     such provisions, as amended by the USA PATRIOT Improvement 
     and Reauthorization Act of 2005 (H.R. 3199, 109th Congress, 
     2d Session) and by the USA PATRIOT Act Additional 
     Reauthorizing Amendments Act of 2006 (S. 2271, 109th 
     Congress, 2d Session).
                                  ____

     To: Senator Specter
     From: SJC Crime Unit
     Subject: Amendments to PATRIOT Act Authorities
     Date: February 27, 2006

       Per your request, your staff has drafted a stand alone bill 
     that will address the most significant outstanding concerns 
     of Senator Feingold, Senator Leahy and yourself (as well as 
     the other proponents of the SAFE Act) regarding the PATRIOT 
     Act Reauthorization Conference Report. The bill is based, in 
     part, on the amendments that Senator Feingold attempted to 
     introduce during the PATRIOT Act debates of the week of 
     February 13, 2006. Your bill will accomplish the following:

[[Page S1497]]

       Delayed Notice Search Warrants: Requires that the target 
     receive notification of the execution of a delayed notice 
     search warrant within 7 days, as did the Senate passed 
     PATRIOT Act. The Conference Report provides for notice within 
     30 days as a compromise with the House, which passed an 180-
     day delay in its bill.
       Section 215: Implements the Senate-passed ``three-part 
     test'' to obtain a section 215 order. Thus, the bill will 
     require the statement of facts accompanying an application to 
     show that the records sought: (1) pertain to a foreign power 
     or an agent of a foreign power; (2) are relevant to the 
     activities of a suspected agent of a foreign power who is the 
     subject of an authorized investigation, or (3) pertain to an 
     individual in contact with a suspected agent of a foreign 
     power. A memo detailing the differences between the Senate 
     bill, the House bill, and the Conference Report is attached.
       Judicial Review of National Security Letters: Eliminates 
     the ``conclusive presumption'' in the Conference Report's NSL 
     provision. The bill removes the ability of the government to 
     prevent judicial review of the nondisclosure requirement if 
     it certifies, in good faith, that ``disclosure may endanger 
     the national security of the United States or interfere with 
     diplomatic relations.''
       Judicial Review of Section 215 order nondisclosure 
     requirement: Eliminates the conclusive presumption and the 
     mandatory one-year waiting period for judicial review of the 
     non-disclosure requirement on 215 orders.
       Sunsets on National Security Letters: Adds a four-year 
     sunset to the National Security Letter authorities created in 
     the Conference Report. Thus, the bill provides that on 
     December 31, 2009, the law governing NSL's will be returned 
     to what it was in February 2006.

  Mr. SPECTER. Madam President, in the absence of any Senator on the 
floor seeking recognition, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Ms. MURKOWSKI. Mr. President, I come to the floor to comment on the 
reauthorization of the PATRIOT Act and to voice my support for the 
PATRIOT Act.
  I also want to take a few moments to compliment my colleagues, 
Senator Sununu and Senator Craig, for their very hard work over the 
course of these last few weeks making these amendments possible.
  I also want to recognize Senators Hagel, Durbin, Salazar, and 
Feingold for the bipartisan approach which we were able to take in 
addressing this issue.
  I know the changes that were agreed to do not address all of the 
concerns of the Senator from Wisconsin before we went on recess, nor do 
they address all of my concerns. But I want to make sure that the 
Senator is aware of how much I appreciate his leadership on this issue.
  There are a number of Members within this body who did not share our 
opposition to the conference report when it was first reported out, and 
there are many, on the hand, who would have liked to have seen the 
conference report expand the powers granted to the executive branch 
under the PATRIOT Act. That is certainly their prerogative and their 
right to advocate that position. It is not a position I agree with, 
unless we have adequate safeguards that can be put in place to provide 
a reasonable level of judicial oversight.
  I want to be clear on a couple of points regarding my earlier 
opposition to the conference report.
  First, it is not my desire to repeal the PATRIOT Act in its entirety 
nor to allow the authorization provided in the 16 provisions we are 
considering to expire.
  If that was my intent, if that is what I had hoped to do, it would 
have been a pretty simple task to object to any language coming out of 
the conference--to have objected to the language that unanimously 
passed the Senate in July. But that wasn't the case. Those of us who 
voiced objection to the earlier draft of the conference report just 
didn't say: No, we don't like it. We didn't say that. We didn't say 
that we opposed it entirely. We said we offered up the specific 
examples of changes to the conference report that we needed to see in 
order to support it. It was truly our desire to improve the conference 
report--not to kill it.
  I commend the chairman of the Senate Judiciary Committee, Senator 
Specter, who was on the floor earlier, for his efforts to represent the 
views which we had expressed in conference. The senior Senator from 
Pennsylvania clearly hasn't had much time to take a breather lately, 
but he was a tough negotiator. He was able to squeeze some additional 
changes out of the conferees, most notably the shorter sunshine 
timeframe for section 216, roving wiretaps, and the lone-wolf 
provision.
  Unfortunately, the House and the administration refused to consider 
our other concerns.
  There have been some who have asked me: You got the sunset 
provisions. Wasn't that the primary issue? Why the continued 
opposition?
  For some, the sunset provisions were the primary issue. But that was 
not necessarily the case for our group, and that was not necessarily my 
primary concern.
  When we introduced the SAFE Act last April--that is the legislation 
which was sponsored by Senators Craig and Durbin and cosponsored by 
many of us--the SAFE Act did not contain any sunsets. We were prepared 
to make permanent each of the 16 provisions in question today.

  What we were seeking, instead, was language that would create a level 
of judicial review and public disclosure that would head off any 
potential abuse and unnecessary infringement on individual freedoms.
  Now, it has been said by some that those seeking changes to the 
PATRIOT Act have not been able to point to any case of abuse to support 
their cause. And that may be the case. But do we have to wait for that 
abuse to happen? I would prefer we put safeguards in place now, not 
afterwards, safeguards that continue to allow our law enforcement and 
intelligence officers to obtain the information they need for the 
security of our Nation.
  Now, in particular, I was, and I remain, concerned about the presumed 
relevance standard under a section 215 order. With the increased power 
under the PATRIOT Act to obtain ``any tangible item'' from any entity, 
it would also seem appropriate that the government have a greater 
responsibility to demonstrate its rationale for seeking those terms. 
While the conference report improves upon the current statute py 
requiring in most cases some connection or contact with a foreign power 
or an agent of a foreign power, I am concerned the presumed relevance 
language significantly diminishes the judicial oversight the Senate-
passed bill provided.
  While I remain concerned about this standard, I am pleased that what 
has been agreed to is the explicit judicial review of a section 215 gag 
order--a right that previously was not clearly available to recipients. 
Now, this does not address all of my section 215 concerns. I do have 
more. But it does remain an improvement over the conference report and 
over current law.
  I was also pleased that language was agreed to that permits a 
national security letter to be served on a library only if that library 
is acting as a wire or electronic communications service provider. I 
have noticed some have been critical of the language that is included 
in this amendments act, saying: Well, you still have the ability to go 
after the libraries. But, again, I will stress, it permits a national 
security letter to be served on a library only if that library is 
acting as a wire or electronic communications service provider. So the 
fact they may happen to offer their library patrons the use of the 
Internet does not make them a wire or electronic communications service 
provider. This language that is incorporated in the amendments act was 
part of legislation I had introduced in 2003 in an effort to modify the 
PATRIOT Act. I believe it is an important protection for our Nation's 
libraries.
  I know this is not the last debate we will have on the PATRIOT Act, 
nor is it likely the last piece of legislation we will consider on the 
subject. Some of the provisions we see--the continued sunset provisions 
for section 215, the roving wiretaps, and the lone wolf provision--
assure us of that. But earlier, about a half an hour ago, on the floor, 
the chairman of the Judiciary Committee came to the floor and spoke of 
legislation he will be introducing tomorrow.
  As I was listening to the chairman--and I obviously have not looked 
at the legislation as of yet, but I understand

[[Page S1498]]

from his comments it is essentially his purpose with this legislation 
to go back to the language we had in that legislation that passed 
unanimously out of the Senate Judiciary Committee and passed 
unanimously out of this body--provisions he has detailed as they relate 
to search warrants, the strengthening of section 215, a 4-year sunset 
on NSLs, and NSL judicial review. So I will anxiously await the 
opportunity to review that legislation Chairman Specter has indicated 
just this afternoon will be available to us.
  I am encouraged, once again, we will be able to look at those areas 
where I and others have been very concerned that we have not provided 
adequately for that balance between providing our law enforcement the 
tools they need while, at the same time, maintaining the individual 
liberties we as Americans expect and certainly deserve. So, as I 
indicated, I look forward to reviewing that legislation.
  But the legislation we are considering today--the conference report--
I believe has made improvements on the original product of the PATRIOT 
Act, and so with passage of the additional protections, it is my 
intention to vote for cloture on the PATRIOT Act reauthorization bill.
  Mr. LEAHY. Mr. President, the Republican leadership has made a 
mistake and is abusing its power by choking off debate on this 
important bill. Regrettably the majority leader has chosen to prevent 
any effort to offer amendments to the bill and has effectively stifled 
open debate. While I voted to proceed to consideration of the bill, I 
do not condone the Republican leadership's current abuse.
  I have filed an amendment that would improve the bill by correcting 
one of the most egregious ``police state'' provisions regarding gag 
orders. The Bush-Cheney administration used the last round of 
discussions with Republican Senators to make the gag order provisions 
worse, in my view, by forbidding any court challenge for 1 year. The 
conference report places no similar restriction on recipients of 
national security letters, and there is no justification for its 
inclusion here.
  In addition, the bill continues and cements into law procedures that, 
in my view, unfairly determine legitimate challenges to gag orders. It 
allows the Government to ensure itself of victory by certifying that, 
in its view, disclosure ``may'' endanger national security or ``may'' 
interfere with diplomatic relations. Unless the Government is acting in 
bad faith, the court must accept the certification as conclusive and 
must rule in favor of the Government.
  This is the type of provision to which I have never agreed. The 
conference report uses identical language in connection with NSL gag 
orders, and I resisted it in that context. I agreed with Senator 
Sununu, who said in December that it would prevent meaningful judicial 
review because NSL recipients would never be able to show bad faith on 
the part of the Federal Government. Senator Specter has also been 
critical of this provision.
  My amendment would have corrected these unnecessary excesses. It 
struck both the 1-year waiting period for challenging a gag order and 
the ``conclusive presumption'' in favor of the Government. These 
changes are simple but they are essential if we are to avoid creating 
rigged procedures where the Government always wins, regardless of the 
merits.
  By its abuse of the rules, the Republican leadership is preventing 
any opportunity to correct these matters. That is wrong. The Senate may 
have accepted or rejected my effort to remove this un-American 
restraint on meaningful judicial review of gag orders, but I should 
have had the opportunity to offer it.
  In the weeks following 9/11, some of us worked hard in cooperation 
with the Bush-Cheney administration on what came to be the USA PATRIOT 
Act. I remind the current Republican leadership that even then, in 
those extraordinary times, we allowed Senators to offer amendments. We 
took difficult votes. I would have liked to have supported some of 
those amendments but, in my role as the chair of the Judiciary 
Committee, I felt that I could not at that time. But I did not and the 
majority leader, Senator Daschle, did not fill the amendment ``tree'' 
with sham amendments. Instead, we worked out an agreement to proceed 
with amendments and votes on those amendments.

  In 2001, I fought for time to provide some balance to Attorney 
General Ashcroft's demands that the Bush-Cheney administration's 
antiterrorism bill be enacted in a week. We worked hard for 6 weeks to 
make that bill better and were able to include the sunset provisions 
that contributed to reconsideration of several provisions over the last 
several months. Last year I worked with Chairman Specter and all the 
members of the Judiciary Committee and the Senate to pass a 
reauthorization bill in July. As we proceeded in House-Senate 
conference on the measure, the Bush-Cheney administration and 
congressional Republicans locked Democratic conferees out of their 
deliberations and wrote the final bill. That was wrong.
  Last December, working with a bipartisan group of Senators, we were 
able to urge reconsideration of that final bill. Senators Sununu and 
Craig were able to use that opportunity to make some improvements. I 
commend them for what they were able to achieve and hope that my 
support for their efforts has been helpful. I wish that along the way 
the Bush-Cheney administration had shown interest in working together 
to get to the best law we could for the American people.
  Since the House-Senate conference was hijacked, I have tried to get 
this measure back on the right track. We have been able to achieve some 
improvements. I regret that this bill is not better and that the 
intransigence of the Bush-Cheney administration has prevented a better 
balance and better protections for the American people. Just as I 
worked for an opportunity for Senator Sununu to seek improvements to 
the conference report, I will now vote against these unfair efforts to 
forestall any amendments to this measure. I remain committed to working 
to provide the tools that we need to protect the American people. That 
includes working to provide the oversight and checks needed on the uses 
of Government power and to improve the reauthorization of the PATRIOT 
Act.
  In light of the abuse being perpetrated by the Republican leadership, 
I will vote against their stifling of meaningful debate and their 
obstruction of efforts to improve the bill, the conference report and 
the PATRIOT Act. I will vote against cloture on the bill without any 
opportunity to offer amendments. I urge the Republican leadership to 
reconsider its actions and allow a few amendments to be offered to the 
bill so that we can seek to improve it before final passage by the 
Senate.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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