[Congressional Record Volume 152, Number 23 (Tuesday, February 28, 2006)]
[Senate]
[Pages S1515-S1521]
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 bill 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.
The PRESIDING OFFICER. Under the previous order, the time until 12:30
p.m. will be equally divided.
The Senator from Texas is recognized.
Mr. CORNYN. Mr. President, I wish to speak about the USA PATRIOT Act.
As you know, the Senate has recently agreed to another temporary
extension of this act. We have twice since December been in a position
of having to offer, instead of permanent reauthorization, a temporary
fix. Yet at a time when so many in this body are continuing to talk
about security, this one piece of legislation, in my humble opinion,
has been more important in terms of protecting the security of the
United States than anything else we have done since September 11.
This critical law, which, of course, provides law enforcement
agencies with the vital tools necessary to fight and win the war on
terror, should not be allowed to expire. I, frankly, am at a loss to
explain why we are spending so much time trying to get to final closure
on this legislation when the merits of the legislation seem to be so
obvious--primarily by providing tools to law enforcement and
intelligence agencies of this country, tools that are already in broad
use in other aspects of law enforcement investigations.
Unfortunately, it seems to me that there has been a certain amount of
hysteria whipped up over this to cause people to have unreasonable fear
and concern about civil liberties, when, in fact, the balance between
security and civil liberties has been struck in an entirely appropriate
way in this legislation.
We must make it a top priority of the Senate to reauthorize this
legislation as soon as possible, as it would be unconscionable to
compromise the safety of the American people and undermine the progress
we have made since 9/11 and delay critical investigations.
An agreement reached in December between the House and Senate
conferees preserved the provisions of this act which have made America
safer since 9/11 while increasing congressional and judicial oversight,
which should alleviate the concerns of those who believe the law
enforcement tools somehow endanger civil liberties. And even recently,
the White House and leaders of the House and Senate have made
additional concessions in an attempt to reach a final agreement to
reauthorize the PATRIOT Act.
Unfortunately, it seems that there are a few who are continuing in
their effort to stop reauthorization of the PATRIOT Act, insisting on
imposing their will on a bipartisan majority of the Senate, the House,
and the President of the United States. The handful of diehards who
continue to oppose this legislation are simply unwilling to accept the
compromise that has been agreed to by both Houses of Congress, despite
efforts from all quarters to try to accommodate reasonable concerns.
Most reasonable people would agree
[[Page S1516]]
that it is a practical impossibility for each legislator to get every
single thing they want out of any particular piece of legislation, but
that doesn't mean the American people should be left with nothing and
be stripped bare of the protections the PATRIOT Act has been so
effective at delivering.
The art of compromise is, at times, a bitter pill, particularly when
matters of such profound consequence as our national security and
waging the war on terror hang in the balance. I personally supported
leaving sections 215, 213, and other provisions of the PATRIOT Act
alone. I also wanted to add administrative subpoenas to the PATRIOT Act
and to add judicial review for national security letters.
I also feel very strongly about ensuring that the 9/11 Commission's
recommendations with regard to risk-based funding for homeland security
grant moneys are implemented and personally pushed for such a provision
during these negotiations. Senator Specter made it clear to me that he
would try to seek consensus but that my demands would not be met in all
regards.
While I did not get everything I wanted and while I believe what I
wanted was in the best interests of my country, I support this bill. I
am simply unwilling to return the American people to the pre-9/11 law
enforcement tools which so poorly served our national interests at that
time. And while this legislation is not perfect in every regard, it
represents what I believe are the best efforts of the Congress to
arrive at an acceptable compromise.
The national security has been well served by the PATRIOT Act since
its original passage in a way that is both consistent with our national
values and the protection of civil liberties. The war on terror must be
waged in a manner consistent with American values and American
principles.
The hysteria over this legislation is simply hard for me to
understand. The fact that people in too many instances have not focused
on the hard-fought attempts to balance our security and civil liberty
concerns is, I believe, a disservice to the American people. This
debate does not concern a typical policy disagreement about taxes or
other issues; in fact, the stakes are much higher.
The PATRIOT Act was enacted in 2001 by an overwhelming bipartisan
margin--98 to 1 in the Senate and 357 to 66 in the House. At that time,
Senators on both sides of the aisle agreed that this legislation struck
a wise and careful balance between national security and civil
liberties.
The law, to date, has had a successful track record. In addition to
helping prevent any terrorist attacks in this country since 9/11 and
playing such a critical role in dismantling several terrorist cells
within the United States, the Department of Justice inspector general
has consistently found no systemic abuses of any of the act's
provisions.
I support these recent concessions that have made this bill what it
is today--and one in particular. Before these changes, a recipient of a
215 order seemingly could challenge the nondisclosure obligation at any
time. The new revisions make clear that a recipient cannot challenge
this requirement for 1 year, and it ensures that the conclusive
presumption applies to these orders as well--something that was not
clear before reaching this compromise agreement.
The remaining changes seemed to me to be quite sensible; that is,
recipients of a 215 order or a national security letter do not have to
tell the FBI that they have or will consult an attorney or that a
library is not an electronic or wire communications provider unless, of
course, they happen to be such a provider.
Prior to the PATRIOT Act, we know there were barriers that seriously
hindered information sharing among law enforcement agencies and
intelligence agencies, and those barriers imperiled our Nation. This
was described by Patrick Fitzgerald in his testimony before the Senate
Judiciary Committee. I quote:
I was on a prosecution team in New York that began a
criminal investigation of Osama bin Laden in early 1996. The
team--prosecutors and FBI agents assigned to the criminal
case--had access to a number of sources. We could talk to
citizens. We could talk to local police officers. We could
talk to foreign police officers. Even foreign intelligence
personnel. We could talk to foreign citizens. And we did all
of those things as often as we could. We could even talk to
al-Qaida members--and we did. We actually called several
members and associates of al-Qaida to testify before a grand
jury in New York. And we even debriefed al-Qaida members
overseas who agreed to become cooperating witnesses. But
there was one group of people we were not permitted to talk
to. Who? The FBI agents across the street from us in lower
Manhattan assigned to a parallel intelligence investigation
of Osama bin Laden and al-Qaida. We could not learn what
information they had gathered. That was the wall.
I am confident I am not the only one who is astounded at that
statement. Consider our progress in the war on terror since the PATRIOT
Act's enactment: Information sharing between intelligence and law
enforcement personnel has been critical in dismantling terrorist
operations, including the Portland Seven in Oregon, as well as a
terrorist cell in Lackawanna, NY.
It has helped prosecute several people involved in an al-Qaida drugs-
for-weapons scheme in San Diego, two of whom have already pleaded
guilty.
Furthermore, nine associates of an al-Qaida-associated Northern
Virginia violent extremist group were convicted and sentenced to prison
terms ranging from 4 years to life.
Two Yemeni citizens have been charged and convicted for conspiring to
provide material support to al-Qaida and Hamas.
An individual has been convicted of perjury and illegally acting as
an agent of the former Government of Iraq by a jury in January of 2004.
And the executive director of the Illinois-based Benevolence
International Foundation, who has had a longstanding relationship with
Osama bin Laden, pleaded guilty to racketeering and furthermore
admitted that he diverted thousands of dollars from his charity
organization to support Islamic militant groups in Bosnia and Chechnya.
These tools simply must remain available to those on the front lines
who continue to wage the war on terror. The very safety of our Nation
depends on it.
I would like to share with my colleagues--and perhaps some of them
have seen this op-ed piece--a piece written by Debra Burlingame, the
sister of Charles F. ``Chic'' Burlingame III, the pilot of American
Airlines flight 77 which crashed into the Pentagon on September 11,
2001. This op-ed was originally published in the Wall Street Journal,
and I believe it articulates precisely why this legislation must be
reauthorized without delay.
I will read an excerpt, and I ask unanimous consent that the complete
op-ed be printed in the Record following my remarks.
The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. CORNYN. Mr. President, Ms. Burlingame writes:
A mere four-and-a-half years after victims were forced to
choose between being burned alive and jumping from 90
stories, it is frankly shocking that there is anyone in
Washington who would politicize the Patriot Act. It is an
insult to those who died to tell the American people that the
organization posing the greatest threat to their liberty is
not al Qaeda but the FBI. Hearing any member of Congress
actually crow about ``killing'' or ``playing chicken'' with
this critical legislation is as disturbing today as it would
have been when Ground Zero was still smoldering. Today we
know in far greater detail what not having it cost us.
She continues:
The Senate will soon convene hearings on renewal of the
Patriot Act--
And indeed we had those hearings--
and the NSA terrorist surveillance program. A minority of
Senators want to gamble with American lives and ``fix''
national security laws which they can't show are broken. They
seek to eliminate or weaken anti-terrorism measures which
take into account that the Cold War in its slow-moving,
analog world of landlines and stationary targets is gone. The
threat we face today is a completely new paradigm of global
terrorist networks operating in a high-velocity digital age
using the Web and fiber-optic technology. After four-and-a-
half years without another terrorist attack, these senators
think we're safe enough to cave in to the same civil
liberties lobby that supported that deadly FISA wall in the
first place. What if they, like those lawyers and judges, are
simply wrong?
Why should we allow enemies to annihilate us simply because
we lack the clarity or resolve to strike a reasonable balance
between
[[Page S1517]]
a healthy skepticism of government power and the need to take
proactive measures to protect ourselves from such threats?
The mantra of civil-liberties hard-liners is to ``question
authority''--even when it is coming to our rescue--then blame
that same authority when, hamstrung by civil liberties laws,
it fails to save us. . . .More Americans should not die
because the peace-at-any-cost fringe and antigovernment
paranoids still fighting the ghost of Nixon hate George Bush
more than they fear al Qaeda. Ask the American people what
they want. They will say that they want the commander in
chief to use all reasonable means to catch the people who are
trying to rain terror on our cities. Those who cite the
soaring principle of individual liberty do not appear to
appreciate that our enemies are not seeking to destroy
individuals, but rather whole populations.
She concludes:
The public has listened to years of stinging revelations
detailing how the government tied its own hands in stopping
the devastating attacks of September 11. It is an
irresponsible violation of the public trust for members of
Congress to weaken the Patriot Act or jeopardize the NSA
terrorist surveillance program because of the same illusory
theories that cost us so dearly before, or worse, for rank
partisan advantage. If they do, and our country sustains yet
another catastrophic attack that these antiterrorism tools
could have prevented, the phrase ``connect the dots'' will
resonate again--but this time it will refer to the trail of
innocent American blood which leads directly to the Senate
floor.
I urge my colleagues to heed the words of Ms. Burlingame. And today I
join my voice with hers and the millions of Americans who are calling
for us to do our duty and to do our utmost to protect this country and
the American people.
Mr. President, I yield the floor.
Exhibit 1
[From opinionjournal.com, Jan. 30, 2006]
Our Right to Security
(By Debra Burlingame)
One of the most excruciating images of the September 11
attacks is the sight of a man who was trapped in one of the
World Trade Center towers. Stripped of his suit jacket and
tie and hanging on to what appears to be his office curtains,
he is seen trying to lower himself outside a window to the
floor immediately below. Frantically kicking his legs in an
effort to find a purchase, he loses his grip, and falls.
That horrific scene and thousands more were the images that
awakened a sleeping nation on that long, brutal morning.
Instead of overwhelming fear or paralyzing self-doubt, the
attacks were met with defiance, unity and a sense of moral
purpose. Following the heroic example of ordinary citizens
who put their fellow human beings and the public good ahead
of themselves, the country's leaders cast aside politics and
personal ambition and enacted the USA Patriot Act just 45
days later.
A mere four-and-a-half years after victims were forced to
choose between being burned alive and jumping from 90
stories, it is frankly shocking that there is anyone in
Washington who would politicize the Patriot Act. It is an
insult to those who died to tell the American people that the
organization posing the greatest threat to their liberty is
not al Qaeda but the FBI. Hearing any member of Congress
actually crow about ``killing'' or ``playing chicken'' with
this critical legislation is as disturbing today as it would
have been when Ground Zero was still smoldering. Today we
know in far greater detail what not having it cost us.
Critics contend that the Patriot Act was rushed into law in
a moment of panic. The truth is, the policies and guidelines
it corrected had a long, troubled history and everybody who
had to deal with them knew it. The ``wall'' was a tortuous
set of rules promulgated by Justice Department lawyers in
1995 and imagined into law by the Foreign Intelligence
Surveillance Act (FISA) court. Conceived as an added
protection for civil liberties provisions already built into
the statute, it was the wall and its real-world ramifications
that hardened the failure-to-share culture between agencies,
allowing early information about 9/11 hijackers Khalid al-
Mihdhar and Nawaf al-Hazmi to fall through the cracks. More
perversely, even after the significance of these terrorists
and their presence in the country was known by the FBI's
intelligence division, the wall prevented it from talking to
its own criminal division in order to hunt them down.
Furthermore, it was the impenetrable FISA guidelines and
fear of provoking the FISA court's wrath if they were
transgressed that discouraged risk-averse FBI supervisors
from applying for a FISA search warrant in the Zacarias
Moussaoui case. The search, finally conducted on the
afternoon of 9/11, produced names and phone numbers of people
in the thick of the 9/11 plot, so many fertile clues that
investigators believe that at least one airplane, if not all
four, could have been saved.
In 2002, FISA's appellate level Court of Review examined
the entire statutory scheme for issuing warrants in national
security investigations and declared the ``wall'' a
nonsensical piece of legal overkill, based neither on express
statutory language nor reasonable interpretation of the FISA
statute. The lower court's attempt to micromanage the
execution of national security warrants was deemed an
assertion of authority which neither Congress or the
Constitution granted it. In other words, those lawyers and
judges who created, implemented and so assiduously enforced
the FISA guidelines were wrong and the American people paid
dearly for it.
Despite this history, some members of Congress contend that
this process-heavy court is agile enough to rule on quickly
needed National Security Agency (NSA) electronic surveillance
warrants. This is a dubious claim. Getting a FISA warrant
requires a multistep review involving several lawyers at
different offices within the Department of Justice. It can
take days, weeks, even months if there is a legal dispute
between the principals. ``Emergency'' 72-hour intercepts
require sign-offs by NSA lawyers and preapproval by the
attorney general before surveillance can be initiated.
Clearly, this is not conducive to what Gen. Michael Hayden,
principal deputy director of national intelligence, calls
``hot pursuit'' of al Qaeda conversations.
The Senate will soon convene hearings on renewal of the
Patriot Act and the NSA terrorist surveillance program. A
minority of senators want to gamble with American lives and
``fix'' national security laws, which they can't show are
broken. They seek to eliminate or weaken anti-terrorism
measures which take into account that the Cold War and its
slow-moving, analog world of landlines and stationary targets
is gone. The threat we face today is a completely new
paradigm of global terrorist networks operating in a high-
velocity digital age using the Web and fiber-optic
technology. After four-and-a-half years without another
terrorist attack, these senators think we're safe enough to
cave in to the same civil liberties lobby that supported that
deadly FISA wall in the first place. What if they, like those
lawyers and judges, are simply wrong?
Meanwhile, the media, mouthing phrases like ``Article II
authority,'' ``separation of powers'' and ``right to
privacy,'' are presenting the issues as if politics have
nothing to do with what is driving the subject matter and its
coverage. They want us to forget four years of relentless
``connect-the-dots'' reporting about the missed chances that
``could have prevented 9/11.'' They have discounted the
relevance of references to the two 9/11 hijackers who lived
in San Diego. But not too long ago, the media itself reported
that phone records revealed that five or six of the hijackers
made extensive calls overseas.
NBC News aired an ``exclusive'' story in 2004 that
dramatically recounted how al-Hazmi and al-Mihdhar, the San
Diego terrorists who would later hijack American Airlines
flight 77 and fly it into the Pentagon, received more than a
dozen calls from an al Qaeda ``switchboard'' inside Yemen
where al-Mihdhar's brother-in-law lived. The house received
calls from Osama Bin Laden and relayed them to operatives
around the world.
Senior correspondent Lisa Myers told the shocking story of
how, ``The NSA had the actual phone number in the United
States that the switchboard was calling, but didn't deploy
that equipment, fearing it would be accused of domestic
spying.'' Back then, the NBC script didn't describe it as
``spying on Americans.'' Instead, it was called one of the
``missed opportunities that could have saved 3,000 lives.''
Another example of opportunistic coverage concerns the
Patriot Act's ``library provision.'' News reports have given
plenty of ink and airtime to the ACLU's unsupported claims
that the government has abused this important records
provision. But how many Americans know that several of the
hijackers repeatedly accessed computers at public libraries
in New Jersey and Florida, using personal Internet accounts
to carry out the conspiracy? Al-Mihdhar and al-Hazmi logged
on four times at a college library in New Jersey where they
purchased airline tickets for AA 77 and later confirmed their
reservations on Aug. 30. In light of this, it is ridiculous
to suggest that the Justice Department has the time,
resources or interest in ``investigating the reading habits
of law abiding citizens.''
We now have the ability to put remote control cameras on
the surface of Mars. Why should we allow enemies to
annihilate us simply because we lack the clarity or resolve
to strike a reasonable balance between a healthy skepticism
of government power and the need to take proactive measures
to protect ourselves from such threats? The mantra of civil-
liberties hard-liners is to ``question authority''--even when
it is coming to our rescue--then blame that same authority
when, hamstrung by civil liberties laws, it fails to save us.
The old laws that would prevent FBI agents from stopping the
next al-Mihdhar and al-Hazmi were built on the bedrock of a
35-year history of dark, defeating mistrust. More Americans
should not die because the peace-at-any-cost fringe and
antigovernment paranoids still fighting the ghost of Nixon
hate George Bush more than they fear al Qaeda. Ask the
American people what they want. They will say that they want
the commander in chief to use all reasonable means to catch
the people who are trying to rain terror on our cities. Those
who cite the soaring principle of individual liberty do not
appear to appreciate that our enemies are not seeking to
destroy individuals, but whole populations.
Three weeks before 9/11, an FBI agent with the bin Laden
case squad in New York learned that al-Mihdhar and al-Hazmi
were in this country. He pleaded with the national security
gatekeepers in Washington to launch a nationwide manhunt and
was summarily told to stand down. When the FISA
[[Page S1518]]
Court of Review tore down the wall in 2002, it included in
its ruling the agent's Aug. 29, 2001, email to FBI
headquarters: ``Whatever has happened to this--someday
someone will die--and wall or not--the public will not
understand why we were not more effective and throwing every
resource we had at certain problems. Let's hope the National
Security Law Unit will stand behind their decisions then,
especially since the biggest threat to us now, [bin Laden],
is getting the most `protection.' ''
The public has listened to years of stinging revelations
detailing how the government tied its own hands in stopping
the devastating attacks of September 11. It is an
irresponsible violation of the public trust for members of
Congress to weaken the Patriot Act or jeopardize the NSA
terrorist surveillance program because of the same illusory
theories that cost us so dearly before, or worse, for rank
partisan advantage. If they do, and our country sustains yet
another catastrophic attack that these antiterrorism tools
could have prevented, the phrase ``connect the dots'' will
resonate again--but this time it will refer to the trail of
innocent American blood which leads directly to the Senate
floor.
Mr. CORNYN. Mr. President, 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. FEINGOLD. 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. FEINGOLD. Mr. President, later today we will have a cloture vote
on S. 2271. We should not end debate on this bill, and we should not
pass this bill. Doing so will only help implement the deeply flawed
deal that was struck with the White House to reauthorize the PATRIOT
Act without enacting the core civil liberties protections for which so
many of us have fought. So I urge my colleagues to vote no on cloture.
Everybody in this body wants to reauthorize the PATRIOT Act. Many of
the expiring provisions are entirely noncontroversial. But we also need
to fix the provisions that went too far, that do not contain the checks
and balances necessary to protect our rights and freedoms. This
reauthorization process is our chance to get it right, and moving
forward with this bill takes us one step closer to wasting that chance.
Back in December, 46 Senators voted against cloture on the PATRIOT
Act conference report. I think it is clear by now that the deal makes
only minor changes to that conference report, which remains as flawed
today as it was 2 months ago. The Senator from Pennsylvania, the
chairman of the Judiciary Committee and the primary proponent of the
conference report in this body, was quoted as saying that the changes
that the White House agreed to were ``cosmetic.'' And then he said,
according to the AP:
But sometimes cosmetics will make a beauty out of a beast
and provide enough cover for Senators to change their vote.
Since this deal was announced, editorial pages of newspapers also
have pointed out how minimal these changes are and have urged Senators
not to change their votes. Let me read a few examples.
The editorial board of the Roanoke Times in Virginia had this to say
on February 11:
A compromise that is expected to clear the way for the
law's reauthorization is a victory of fear over strength. The
``compromise'' the White House and congressional leaders
reached this week on reauthorization of the USA PATRIOT Act
is a compromise of the basic freedoms that define this
Nation. The Bush administration has made a few minor
concessions, enough to give the handful of defiant Senate
Republicans and some of their Democratic allies cover to
extend the broad antiterrorism bill and claim they have done
what they could to protect the civil liberties of innocent
Americans. They have not.
That same day from the New York Times we heard this:
The PATRIOT Act has been one of the few issues on which
Congress has shown backbone lately. Last year, it refused to
renew expiring parts of the act until greater civil liberties
protections were added. But key members of the Senate have
now caved, agreeing to renew these provisions in exchange for
only minimal improvements. At a time when the public is
growing increasingly concerned about the lawlessness of the
Bush administration's domestic spying, the Senate should
insist that any reauthorization agreement do more to protect
Americans against improper secret searches.
From my own home State, this is from the Wisconsin State Journal on
February 18:
In recent weeks, Senators have worked with the White House
to produce a compromise. However, the compromise remains far
short of what is required to protect Americans' civil
liberties. Regrettably, the Senate has backed down from its
earlier stand and is poised to pass the inadequate bill.
These editorial boards and millions of Americans across the country
recognize what everybody in this body already knows: that this deal
makes only minor--yes, cosmetic--changes to the conference report that
was blocked in December. The deal is woefully inadequate, and let me
explain why.
I start by reminding my colleagues of the context for this deal. Back
in November and December, when so many of us were fighting for
improvements to the conference report, we made very clear what we were
asking for. We laid out five issues that needed to be addressed to get
our support, and I am going to read quickly excerpts from a letter we
sent explaining our concerns because I think it will help demonstrate
why this deal is so bad and so inadequate. Here are the problems we
identified and the changes we asked for several months ago.
On section 215, we said:
The draft conference report would allow the Government to
obtain sensitive personal information on a mere showing of
relevance. This would allow Government fishing expeditions.
As business groups like the U.S. Chamber of Commerce have
argued, the Government should be required to convince a judge
that the records they are seeking have some connection to a
suspected terrorist or spy.
Next, we discussed gag orders, both for section 215 orders and
national security letters:
The draft conference report does not permit the recipient
of a section 215 order to challenge its automatic, permanent
gag order. Courts have held that similar restrictions violate
the First Amendment. The recipient of a section 215 order is
entitled to meaningful judicial review of the gag order.
The draft conference report does not provide meaningful
judicial review of an NSL's gag order. It requires the court
to accept as conclusive the Government's assertion that a gag
order should not be lifted, unless the court determines the
Government is acting in bad faith. The recipients of NSLs are
entitled to meaningful judicial review of a gag order.
We then moved on to national security letters more generally. The
draft conference report does not sunset the NSL authority. In light of
recent revelations about possible abuses of NSLs, the NSL provision
should sunset in no more than 4 years when the Congress will have an
opportunity to review the use of this power.
Finally, we addressed sneak-and-peek search warrants. The draft
conference report requires the Government to notify the target of a
sneak-and-peek search no earlier than 30 days after the search rather
than within 7 days as the Senate bill provides and as pre-PATRIOT Act
judicial decisions required. The conference report should include a
presumption that notice will be provided within a significantly shorter
period in order to protect fourth amendment rights. The availability of
additional 90-day extensions means that a shorter initial timeframe
should not be a hardship on the Government.
Again, these quotes are from a letter we sent late last year. Now,
you might ask, in this newly announced deal on the PATRIOT Act, have
any of these five problems been solved?
The answer is no, not a single one. Only one of these issues has even
been partially addressed by this deal, but it has not been fixed.
This deal only makes a few small changes. First, it would permit
judicial review of section 215 gag orders, but under conditions that
would make it very difficult for anyone to obtain meaningful judicial
review. Under the deal, judicial review can only take place after a
year has passed, and it can only be successful if the recipient of the
section 215 order proves that the Government has acted in bad faith. As
many have argued in the context of the national security letters, now
that is a virtually impossible standard to meet. We need meaningful
judicial review of these gag orders, not just the illusion of it.
Second, the deal would specifically allow the Government to serve
national security letters on libraries if the library comes within the
current requirements of the NSL statute. This is a provision that
appears to just restate current law. Even the American
[[Page S1519]]
Library Association has called it nothing other than a fig leaf.
Third, the deal would clarify that people who receive a national
security letter or a section 215 order would not have to tell the FBI
if they consult with an attorney. Now, this last change is a positive
step, but it is only one relatively minor change. So that is what we
are left with: one relatively minor improvement. That is nowhere near
enough.
Ordinarily, when we debate a flawed bill such as this one, we at
least have the chance to improve it on the Senate floor by offering
amendments, and I have been trying to do just that to make sure we
don't miss the opportunity to address the core problem with the PATRIOT
Act that so many of us have been fighting to fix. Before the recess, I
filed four amendments to S. 2271, but I was prevented from calling them
up because the majority leader used the procedural tactic of filling
the amendment tree in order to prevent Senators from offering and
getting votes on amendments. Using procedural maneuvers like this to
prevent the Senate from debating and voting on amendments is an insult
to the institution, and it is an insult to every one of my colleagues.
We are being told that we have no choice but to accept the deal that a
few Members cut with the White House, without being allowed to even try
to change a single word.
We do have a choice--to oppose cloture on this bill and insist that
any deal include meaningful civil liberties protections. I don't know
if the majority leader fears that my amendments would actually pass or
if he just wants to protect Senators from having to explain why they
oppose basic protections for law-abiding Americans, but that should not
be how the Senate does its business. Offering, debating, and voting on
amendments is what the Senate is supposed to be all about. That is how
we are supposed to craft legislation. Trying to ram this deal through
without a real amending process is a cynical maneuver that we should
all reject, regardless of how we may feel about the merits of the bill.
If my colleagues want to vote against my amendments, that is their
right. But no one has the right to turn this body into a rubberstamp.
Let's take a step back and consider the process that got us here
today. As we know, conference reports are not amendable. They come to
this body as a take-it-or-leave-it proposition. Those are the rules,
and we all understand them and play by them. In December, we understood
that. In December, we just said no. We said no to the PATRIOT Act
conference report.
Now we have a new bill, the product of a side deal with the White
House, that is essentially an amendment to the conference report. It is
even drafted that way. Each section of the bill amends the underlying
law, as amended by the conference report. That is right. The bill we
are considering today amends a law that hasn't even been passed by the
Senate, much less signed into law. As I understand it, this bill,
should both Houses of Congress pass it, will have to sit on the
President's desk unsigned until the President signs the conference
report bill into law.
The proponents of this deal want to effectively amend the conference
report which couldn't pass the Senate in December, even though
conference reports are unamendable, and they want to do it by
circumventing the regular legislative process with a bill that no one
is being allowed to amend, even though the bill did not go through
committee, let alone a conference. How is that fair? Why should a
handful of members of this body be able to amend an unamendable
conference report with a deal struck by the White House, and then
prevent the Senate from working its will on that deal?
How can one group of Senators amend the conference report but prevent
other Senators from trying to do the same thing? How is that possible?
The answer is that it is not possible unless the Senate lets it
happen. And the vote we will have later today is the vote where we will
find out if the Senate will let it happen.
I hope even colleagues who may support the deal will oppose such a
sham process. It makes no sense to agree to end debate without a
guarantee that we will be allowed to actually try to improve the bill,
and it is a discourtesy to all Senators, not just me, to try to ram
through controversial legislation without the chance to improve it.
My amendments are limited and reasonable. I spoke about them at
length before the recess, but let me just take a few minutes to explain
again what they would do.
First, amendment No. 2892 would implement the standard for obtaining
section 215 orders that was in the Senate bill that the Judiciary
Committee approved by a vote of 18 to 0, and that was agreed to in the
Senate without objection. This is obviously a very reasonable amendment
that every Senator in one way or another has basically supported.
It took hard work, but the Judiciary Committee came up with language
on section 215 that protects innocent Americans, while also allowing
the Government to do what it needs to do to investigate and prevent
terrorism. The Senate standard would require the Government to convince
a judge that a person has some connection to terrorism or espionage
before obtaining their sensitive records.
The Senate standard is the following: One, that the records pertain
to a terrorist or spy; two, that the records pertain to an individual
in contact with or known to a suspected terrorist or spy; or--and I
emphasize ``or''--three, that the records are relevant to the
activities of a suspected terrorist or spy. That is the standard my
amendment would impose.
This 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,
replacing the three-prong test with a simple and quite broad relevance
standard which could arguably justify the collection of all kinds of
information about perfectly law-abiding Americans.
Of all the concerns that have been raised about the PATRIOT Act since
it was passed in 2001, section 215 is the one that has received the
most public attention, and rightly so. A reauthorization bill that
doesn't fix this provision, in my view, has no credibility.
My second amendment is amendment No. 2893, which would ensure the
recipients of business records orders under section 215 of the PATRIOT
Act and also recipients of national security letters can get meaningful
judicial review of the gag orders they are subject to.
Under the conference report, as modified by the Sununu bill,
recipients of these documents would theoretically have the ability to
challenge the gag orders in court, but the standard for getting the gag
orders overturned would be virtually impossible to meet. In order to
prevail in challenging the NSL or section 215 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 that the gag order stands, unless the recipient
can prove that the Government acted in bad faith. Again, I simply don't
think that anyone could reasonably call this meaningful judicial
review.
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, which is actually a new
requirement in the Sununu bill.
My third amendment, amendment 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 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 so-called 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.
[[Page S1520]]
National security letters are issued by the FBI to businesses to
obtain certain kinds of records without any--any--sort of court
approval whatsoever. 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 such as jewelers, car dealers, travel agents, and even
casinos. This is a very broad power. I can think of no reason Congress
would not want to place a sunset on these authorities to ensure we have
the opportunity to take a close look at them.
Finally, my fourth amendment, amendment No. 2894, concerns so-called
sneak-and-peek searches, whereby the Government can secretly search
people's houses in everyday criminal investigations and not provide
notice of the search until afterward. The key issue here is how long
the Government should be allowed to wait, at least in most cases,
before it notifies individuals that their homes have been searched. The
Senate bill said 7 days, 7 days should be the presumption, with the
ability to get extensions if necessary, but the conference report does
away with that and instead allows a delay of 30 days in most cases.
My amendment would restore the key component in 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 good reason to still keep the search secret.
It makes no other change in the conference report other than changing
30 days to 7 days.
Those are my amendments. They are eminently reasonable. They are
consistent with provisions that we approved in the Senate last year or
they were central to the concerns raised by so many Senators late last
year. So these are obviously not extreme ideas, and the Senate should
be allowed to vote on these four amendments. All of us have as much
right as the Senators who struck a deal with the White House to try to
amend the conference report.
I am happy to report that the Senator from Pennsylvania, the chairman
of the Judiciary Committee, thinks these are reasonable amendments,
too. In fact, he thinks they are so reasonable that late yesterday he
announced that he is going to combine them into a single bill and
introduce it today and try to move it through the Judiciary Committee.
That is right. The chairman of the Judiciary Committee, the chief
proponent in this body of the PATRIOT Act reauthorization conference
report and of the White House deal the Senate is being asked to ratify,
has taken the four amendments I just described and, with a few minor
tweaks, he has introduced them as a bill.
I must say, I guess I am flattered and, of course, I will support
that bill, but there is an alternative to the lengthy and uncertain
legislative process that awaits the chairman's new bill, and that is to
simply allow the Senate to vote on my amendments this week. The
chairman could offer them with me. We could make a pretty powerful team
on this issue, maybe. We have the perfect and logical vehicle for these
amendments to the PATRIOT Act before us right now. All we need to do is
add the chairman's reasonable proposals to this bill and send it to the
House, where it would almost certainly pass if the leadership would
simply allow it to be voted on.
These provisions, most of which come right out of the bill that
passed the Senate without objection last July, could become law in a
matter of weeks rather than a year or more from now, if ever.
My amendments and Senator Specter's bill are simply what the
bipartisan group asked for back in December when we blocked the PATRIOT
Act reauthorization conference report. Our requests were reasonable
then, and they are reasonable now. The only reason we are considering a
package that doesn't include them is that the White House played
hardball, and the decision was made by some to capitulate.
Mr. President, I oppose the flawed deal we are being asked to ratify,
and I oppose the sham process that the Senate is facing here. We still
have not fixed some of the most significant problems of the PATRIOT
Act, and if we allow the conference report to go through, the
chairman's sincere hopes notwithstanding, I fear that we will lose that
chance for at least another 4 years. So I must oppose cloture on this
bill, which will allow the deal to go forward.
Before I yield the floor, let me ask one more time for unanimous
consent to set the pending amendments aside so that I may call up
amendment No. 2892, the amendment to modify the standard for section
215 orders.
The PRESIDING OFFICER. In my capacity as Senator from New Hampshire,
I object.
Objection is heard.
Mr. FEINGOLD. Mr. President, that objection says it all. I urge my
colleagues to vote no on cloture, not only because this deal is flawed
but also because of the tactics being used to prevent votes on
reasonable, relevant amendments--reasonable, relevant amendments that
would improve the flawed bill we are debating.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SUNUNU. 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.
Mr. SUNUNU. Mr. President, I want to speak briefly about the bill
before us, a bill that I introduced and the details of which I helped
work out over a period of 5 or 6 weeks following the delay of the
conference report to reauthorize the PATRIOT Act at the end of last
year.
I recognize that this legislation, like almost any piece of
legislation that is dealt with in Congress and in the Senate, in
particular, represents a compromise. If you pursue every piece of
legislation insisting that you get everything you asked for in that
bill, in all likelihood you will never get anything you are seeking,
and you certainly would not be able to count on the long-term support
of others in this institution who might have requests or initiatives
with which you might not agree. A compromise is always necessary.
But I think in this case the legislation represents a substantial
step forward in terms of better safeguarding our civil liberties from
where we were with the current law and, equally important, allows us to
lock in, to get enacted into law a number of other improvements that
many of us worked very hard on in a bipartisan way.
I understand that Senator Feingold doesn't support the legislation.
That is certainly his right, his prerogative. But I think he
shortchanges the nature of these improvements.
I want to touch on the three elements of this bill so that all
Senators and the public understand how these three provisions take us
forward. Maybe the agreement represented in this bill does not move us
as far forward as he or I or others in the Senate might like, but its
moves us forward nonetheless.
First, in this bill, we create an explicit review of the gag order
that accompanies a 215 subpoena. He has criticized the fact that there
is a 12-month waiting period for taking that gag order before a judge.
In our legislation, the SAFE Act, we had a 3-month waiting period. We
asked for a 3-month waiting period, and we ended up with a 12-month
waiting period. That is the nature of compromise, but we did get an
explicit judicial review of the gag order. I think the principle that
any gag order be given an opportunity for review before a judge is not
only a step forward but a victory on principle, which is extremely
important in this legislation, and I think it will guide us in the
future when we might deal with similar questions.
Second, we struck a provision in the delayed conference report that
requires the recipient of a national security letter to disclose the
name of their attorney to the FBI. That is a provision that doesn't
occur anywhere else in the law. It is a provision that I think could
have discouraged people from seeking legal advice. And in the case of a
national security letter--a subpoena issued without the approval of a
judge--we are not talking about a few
[[Page S1521]]
dozen subpoenas or a few dozen individuals or businesses affected; we
are talking about tens of thousands. Striking that requirement
regarding the recipient of an NSL notifying the FBI the name of their
attorney, I think, again, is a very important step forward not only in
encouraging people to seek legal advice but also a very important
principle to set down in this bill.
A third improvement which was not even considered in the remarks of
Senator Feingold is clarification that a library engaged in the
traditional role of lending books, providing books to patrons in
digital format, or providing access to the Internet, is not subject to
a national security letter. This is an important clarification of
congressional intent, an important clarification of the existing law
which, unfortunately, is not clear on this point.
It is not clear because the underlying law uses definitions that were
written 20 years ago before the age of the Internet. I hope the
Judiciary Committee will take up a full review and evaluation of the
definitions and the standards regarding technology and the underlying
law that is referenced here. In lieu of that, the least we can do is
provide clarification as to how and when this law applies to
institutions such as libraries. We have done so in a positive and
meaningful way.
There are two areas Senator Feingold mentioned where we had not made
progress. I am more than willing to recognize we did not get everything
asked for, even as we significantly improved the conference report. One
is the standard of conclusive presumption which is a standard he does
not support. I do not support imposing this standard of inclusive
presumption for overturning the 215 and NSL gag orders, but the fact
remains, as was pointed out by Chairman Specter during our original
debate at the end of last year, that this is a standard that was in the
Senate bill that was passed unanimously last summer. It is quite
challenging tactically to try to negotiate out a provision that all
Senators supported and voted for in the original Senate bill.
The second issue is the most problematic, the one where I would like
to have made more progress. That is in changing the standard for
getting a 215 subpoena from one of mere relevance to terrorism
investigation, as is the current law and the standard in the conference
report, to having a clear connection to a suspected or known terrorist
or foreign power. We did not succeed in getting an improvement to the
standard itself. However, through the course of negotiations, because
of the work done by me and Senator Feingold and others, we were able to
get other requirements and criteria to be met by the government before
a 215 subpoena can be issued which I will speak to in a moment.
These three provisions, again, are significant steps forward from the
delayed conference report. They are a step forward in the very areas
that were raised as concerns at the end of the session. In
conversations with Senator Feingold and Senator Craig and others after
we defeated cloture on the conference report in December, we came back
to the four priorities about which most of our discussions with the
administration took place. We made progress on two of those priorities
and added the provision clarifying the applicability of national
security letters to libraries. That is a real success, indeed.
It is unfortunate in this debate on the underlying bill has included
language such as ``capitulation'' and ``caving.'' But it certainly does
not bother me. I am very comfortable with the process we used to get
these improvements. I am certainly very comfortable with the stand I
took, the priorities I raised, and the end result as far as this
reauthorization process goes. The conference report is a significant
improvement over current law and the bill before us today is a
significant improvement to the conference report. However, it is unfair
to those Members who might not have had the opportunity to work
directly on these issues in Judiciary or directly in our working group
but feel this is a good, appropriate improvement and a good compromise,
to suggest that they are only changing their vote for political
reasons. There were many individuals--Democrats and Republicans--who
were never willing to take a stand on this issue, even though they may
have agreed with Senator Feingold, me, or others, about our concerns.
They may have wished the issue would go away. There were some Members
who claimed to support us but, frankly, when given the opportunity to
weigh in with the administration or to help move the process forward,
they chose not to.
It is unfair to criticize those who worked with us--Democrats and
Republicans--to push this issue forward, to make these improvements, to
suddenly bring their motivation into question when they decide to
support a compromise. I do not think that serves the institution of the
Senate well, especially as we had before the recess a 93-to-6 vote to
move forward. We have leadership on both sides of the aisle supporting
this package. I think the ultimate vote on final passage of my bill and
the delayed conference report will yield a very strong bipartisan
agreement also.
We can take issue with the level of progress that was made, we can
take issue with the underlying substance of the original PATRIOT Act,
the conference report, or these additional improvements, but everyone I
have dealt with in this process has worked in a very direct,
straightforward way. There has been a desire to find common ground, and
in finding that common ground, to come to a consensus that allowed this
conference report to move forward.
In addition to the three improvements I described, we had previously
gained improvements in a number of other areas in the conference
report. I talked about the 215 standard and the fact we were not
successful in changing the standard as it exists in current law. We
were successful, though, in getting into the conference report the
requirement that a statement of facts is provided, a statement of
articulable facts supporting the 215 subpoena request. We now have
minimization requirements in the conference report that require the
Justice Department to eliminate extraneous information, information
collected on innocent Americans, and to report to Congress exactly how
that is done. We were successful in adding clarity to the roving
wiretap provision so it is less likely to be abused or misused. We were
able to improve the sneak-and-peek search warrant.
Senator Feingold indicated we supported a 7-day notification period.
In the bill we have a 30-day notification period. The original PATRIOT
Act contains no specific requirement on notice other than that notice
must be given to the subject of a search ``in a reasonable amount of
time,'' which I think everyone would recognize leaves things to the
whim of a prosecutor or a judge unnecessarily.
We have 4-year sunsets for the most controversial provisions of this
bill, including the 215 subpoena power, the roving wiretaps, and the
lone wolf provisions.
Through the work of Senator Leahy, in particular, we were able to get
a criminal penalty for inadvertent disclosure of national security
letters dropped from the conference report. All of these represent
significant changes from the original act, significant changes included
in the conference report. And in addition to the three changes in this
underlying legislation, we have a better product and one that will
receive strong bipartisan support.
I look forward to passage of the bill. I was pleased to work with my
colleagues on both sides of the aisle in getting this done. In doing
so, in forcing us to take more time and forcing the administration to
add additional protections for civil liberties to the legislation and
putting together a bipartisan group willing to demand these things, we
sent an important message, a message that we have a group willing to
work in Congress to achieve these improvements and a message to the
administration that when we are dealing with these issues, they need to
be engaged and active and working toward consensus from the very
beginning of the process.
I yield the floor and 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. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________