[Congressional Record Volume 152, Number 24 (Wednesday, March 1, 2006)]
[Senate]
[Pages S1557-S1561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006--
Continued
Mr. FRIST. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. FRIST. Madam President, I ask unanimous consent that following
the passage vote, the Senate vote on the motion to proceed to the
motion to reconsider the vote by which cloture was not invoked on the
conference report to accompany H.R. 3199; I further ask consent that if
the motion to proceed is agreed to, the Senate vote immediately on the
motion to reconsider and, if agreed to, then the Senate vote on the
motion to invoke cloture on the conference report.
[[Page S1558]]
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
Mr. FEINGOLD. Madam President, I have been to the floor several times
in the past few days to try to convince my colleagues that we should
not be reauthorizing the PATRIOT Act without addressing the legitimate
concerns of law-abiding Americans across the country. I am under no
illusions that I will have more success making that argument now than I
had yesterday, or the week before the recess. And I know that some of
my colleagues may be wishing I would sit down and stop badgering them
about this. But the stakes are too high to sit idly by while the Senate
prepares to disappoint the millions of Americans who have been hoping,
asking, advocating for years that we fix the PATRIOT Act.
Some may see the vote we are about to have as relatively trivial.
They are mistaken. While the bill we are voting on makes only minor
and, to quote the senior Senator from Pennsylvania, cosmetic changes to
the PATRIOT Act, its significance is far greater. This bill is, to
again quote Senator Specter, the ``cover'' that will allow colleagues
to support the PATRIOT Act conference report that was blocked in
December. A vote for the bill introduced by my friend from New
Hampshire is effectively a vote to perform cosmetic surgery on that
ugly conference report. Anyone who opposed that conference report
should oppose S. 2271 because cosmetic changes simply don't cut it when
we are talking about protecting the rights and freedoms of Americans
from unnecessarily intrusive Government powers.
So I ask my colleagues to reconsider their position. The White House,
along with its allies, has tried to make life uncomfortable for some of
them. It has suggested they are soft on terrorism, that they don't
understand the pressing threat facing this country, that they are stuck
in a pre-9/11 mindset. These cynical and baseless attacks come from a
playbook that the American people are by now very familiar with. Those
attacks should be rejected, not accommodated. We can fight terrorism
aggressively without compromising our most fundamental freedoms against
Government intrusion. The Government grabbed powers it should not have
when it passed the original PATRIOT Act and we should not be ratifying
that power grab today. The PATRIOT Act reauthorization conference
report is flawed. It needs to be fixed. S. 2271 pretends to fix it but
I don't think anyone is fooled, least of all our constituents. They are
watching and they will want to know how a bill that is so trivial on
its face protects their civil liberties. It doesn't. It should be
rejected. And the Senate should get down to the serious business of
legislating real fixes to the PATRIOT Act. I urge my colleagues to
oppose the bill.
Mr. LEAHY. Madam President, earlier this month, I joined with a
majority of Senators in voting to proceed to consideration of S. 2271.
I said then that the bill made modest improvements over both the
original PATRIOT Act and the reauthorization proposal produced by the
House-Senate conference. I said, too, that the bill included one set of
changes that I strongly opposed, and that I hoped there would be an
opportunity to make further improvements to the bill, the conference
report, and the PATRIOT Act.
Regrettably, no sooner had the Senate voted to proceed to S. 2271
than the majority leader filled the amendment ``tree'' with sham
amendments, locking out real amendments that sought to improve the law
further. An amendment that I filed but was denied the opportunity to
offer would have corrected one of the most egregious ``police state''
provisions regarding gag orders. Senator Feingold also filed but could
not offer amendments aimed at bringing the conference report more in
line with the bipartisan reauthorization bill that every Member of the
Senate approved last year. In light of the abuse perpetrated by the
Republican leadership, I felt compelled yesterday to oppose cloture on
the bill and the stifling of meaningful debate.
Today's vote is a different and more difficult matter. Because the
Republican leadership obstructed efforts to improve the bill, the
``police state'' provisions regarding gag orders remain uncorrected.
This is a big step backward, in my view, from both the conference
report and existing law.
At the same time, the bill takes two steps forward. It modifies a
provision I objected to in the conference report that would have
required American citizens to tell the FBI before they exercise their
right as Americans to seek the advice of counsel. Chairman Specter and
I worked together to correct this provision; Senator Sununu was able to
improve it further in this bill and I commend his efforts.
Another significant change provided by the Sununu bill builds upon
another objection I had and an idea I shared with him to ensure that
libraries engaged in their customary and traditional activities are not
subject to national security letters. This is a matter I first raised
and feel very strongly about. I commend Senator Sununu for the progress
he was able to make in this regard.
The bill is intended to clarify that libraries as they traditionally
and currently function are not electronic service providers, and may
not be served with NSLs for business records simply because they
provide Internet access to their patrons. Under this clarification, a
library may be served with an NSL only if it functions as a true
internet service provider, as by providing services to persons located
outside the premises of the library. I expect that this will occur
rarely or never and that in most if not all cases, the Government will
need a court order to seize library records for foreign intelligence
purposes.
The language I proposed to Senator Sununu in this regard was less
ambiguous than that to which the Bush-Cheney administration would
agree. Still, my intent, Senator Sununu's intent and the intent of
Congress in this regard should be clear. It is to strengthen the
meaning and ensure proper implementation of this provision that I will
support this bill. As a supporter I trust my intent will inform those
charged with implementing the bill and reviewing its proper
implementation.
I will continue to work to improve the PATRIOT Act. I will work to
provide better oversight of the use of national security letters and to
remove the un-American restraints on meaningful judicial review. I will
seek to monitor how sensitive personal information from medical files,
gun stores and libraries are obtained, used, and retained. Today, I
will join Senators Specter, Sununu, Craig, and others in introducing a
bill to improve the PATRIOT Act and reauthorization legislation in
several important respects. While we have made some progress, much is
left to be done.
Mr. KYL. Madam President, I rise today to comment on S. 2271, which I
anticipate that the Senate will overwhelmingly approve today. I support
the USA PATRIOT Improvement and Reauthorization Act Conference Report,
with the three amendments negotiated contained in S. 2271. It is long
past time to reauthorize the USA PATRIOT Act, which has been critical
to our efforts to protect Americans. I support the compromise that has
allowed this up-or-down vote because I think that the agreement
maintains the tools necessary to fight terrorism while further
strengthening safeguards to protect Americans' civil liberties just as
the conference report itself does.
The conference report clarifies that the recipient of a section 215
FISA business records order or a National Security Letter, NSL, may
disclose receipt to an attorney to seek legal advice or assistance and
also to those necessary to comply with the request. During House-Senate
negotiations, provisions were added allowing the government to request
that the recipient tell the government to whom the recipient had
disclosed the order or NSL. This provision makes sense because there
will be times when the Government will need to know everyone who has
been told about a section 215 order or NSL. For example, if there is a
leak of the existence of the request, or the recipient's name, that
leak may need to be investigated. And we know from the criminal
conviction of Lynne Stewart that, unfortunately, sometimes it is the
attorneys who are breaking the law.
[[Page S1559]]
Some Senators expressed concern that these provisions required all
recipients to identify their attorney in all instances. This was a
misreading of the language, which would have allowed the government to
request the names of individuals to whom subsequent disclosure was made
but did not set out a blanket requirement.
Other Senators were concerned that this provision could chill a
recipient's right to counsel. It is clear under the law that the
constitutional right to counsel would not be implicated or offended by
the conference report provision. But in a spirit of compromise, the
Administration agreed to modify the provisions such that they could not
be used to request the identity of an attorney to whom receipt was
disclosed. I support this amendment primarily because there is no way
that the agreed-upon language would preclude the use of a grand jury
subpoena or other investigative tool in the event of a subsequent leak
investigation. So the government will still have tools available to
investigate leaks as the need arises--even if the offending party is
the recipient's attorney.
The conference report also makes it clear that the recipient of a
section 215 FISA business records order can go to court and challenge
the order. Some Senators raised concerns that under the conference
report a recipient would have explicit rights to consult an attorney
about the order and to challenge the order to produce business records,
but would not have an explicit right to challenge the nondisclosure
order that accompanies such a production order. I think it is likely
that a court would entertain a constitutional challenge to the
nondisclosure requirement, and nothing we say in a statute is going to
change that one way or another. Moreover, it is important to remember
that these are court orders--they are reviewed and approved by judges
before they are served.
But notwithstanding my confidence that the conference report was
fully consistent with Americans' civil liberties, the administration
agreed to a compromise that explicitly authorizes judicial review of a
section 215 nondisclosure order. I think the agreement is a good
compromise--it explicitly allows challenges, but does so without
risking national security. Pursuant to the agreed-upon language, a
challenge could be brought any time after the first year after the
judge issued the section 215 order; the challenge could only be brought
in the FISA Court; and the standard of review would be the same as the
standard the conference report provides for review of nondisclosure
orders accompanying NSLs. The delay is perfectly appropriate and
necessary to preserve valuable personnel resources--these orders are
approved by judges before issuance, so it makes little sense to allow
recipients to challenge the non-disclosure requirement only a week or
even a day after the court issues them.
Taking the standard of review from the NSL provisions also makes
sense. Not only did that standard pass both the House and Senate, but
it affords the appropriate level of deference to the Executive branch's
judgments on national security and diplomatic relations.
This standard provides that the FISA Court judge may set aside or
modify the nondisclosure order 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 or counterterrorism
investigation, interfere with diplomatic relations, or endanger the
life or physical safety of any person. If, upon the filing of a
challenge to the nondisclosure order, the Attorney General, the Deputy
Attorney General, an Assistant Attorney General, or the FBI Director
certifies that disclosure may endanger the national security of the
United States or interfere with diplomatic relations, the certification
is conclusive unless made in bad faith.
Courts have long recognized that national security and diplomatic
relations fall within the heartland of the executive branch's
responsibility and expertise, and this standard simply recognizes that
expertise. By requiring that the certification be made by a Senate-
confirmed official before granting it bad-faith review, the conferees
added political accountability--and I note that neither the House
version nor the Senate version had this additional safeguard.
Finally, some Senators also expressed concern about the applicability
of national security letters to libraries. This concern has always
seemed to me to be based on a misunderstanding of the NSL statutes.
There are several NSL authorities, but each authority only allows the
government to request a narrow category of records from a narrow set of
institutions. The statue that is generally in the news allows the FBI
to request things like customer subscription records from ``wire and
electronic communication service providers.'' And we have already made
clear in statute what institutions qualify as ``wire and electronic
communication service providers.'' The way I read the statute, and the
way that experts read the statute, the FBI cannot use an NSL to learn
what books you and I are checking out from the library.
But the compromise makes it crystal clear that the FBI may serve an
NSL on a library only if that library is acting as a ``wire or
electronic communication service provider.'' Just to be clear: we are
not changing the set of entities that can be subject to NSLs; we are
merely clarifying that libraries can be subject to NSLs only if they
perform the functions that make an entity subject to NSLs. I can
support this language because it does not create a safe haven for
terrorists in libraries. If it did, I could not support the language.
It is well past time to pass this report, which passed the House with
strong bipartisan support. A majority of Americans supports
reauthorizing the USA PATRIOT Act, as does a strong bipartisan majority
of Senators. I support this compromise.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall it pass?
The yeas and nays have been ordered. The clerk will call the roll.
The assistant journal clerk called the roll.
Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Inouye) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 95, nays 4, as follows:
[Rollcall Vote No. 25 Leg.]
YEAS--95
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brownback
Bunning
Burns
Burr
Cantwell
Carper
Chafee
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
Wyden
NAYS--4
Byrd
Feingold
Harkin
Jeffords
NOT VOTING--1
Inouye
The bill (S. 2271), as amended, was passed, as follows:
S. 2271
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``USA PATRIOT Act Additional
Reauthorizing Amendments Act of 2006''.
SEC. 2. DEFINITION.
As used in this Act, the term ``applicable Act'' means the
Act entitled ``An Act to extend and modify authorities needed
to combat terrorism, and for other purposes.'' (109th
Congress, 2d Session).
SEC. 3. JUDICIAL REVIEW OF FISA ORDERS.
Subsection (f) of section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861), as amended by the
applicable Act, is amended to read as follows:
``(f)(1) In this subsection--
``(A) the term `production order' means an order to produce
any tangible thing under this section; and
``(B) the term `nondisclosure order' means an order imposed
under subsection (d).
[[Page S1560]]
``(2)(A)(i) A person receiving a production order may
challenge the legality of that order by filing a petition
with the pool established by section 103(e)(1). Not less than
1 year after the date of the issuance of the production
order, the recipient of a production order may challenge the
nondisclosure order imposed in connection with such
production order by filing a petition to modify or set aside
such nondisclosure order, consistent with the requirements of
subparagraph (C), with the pool established by section
103(e)(1).
``(ii) The presiding judge shall immediately assign a
petition under clause (i) to 1 of the judges serving in the
pool established by section 103(e)(1). Not later than 72
hours after the assignment of such petition, the assigned
judge shall conduct an initial review of the petition. If the
assigned judge determines that the petition is frivolous, the
assigned judge shall immediately deny the petition and affirm
the production order or nondisclosure order. If the assigned
judge determines the petition is not frivolous, the assigned
judge shall promptly consider the petition in accordance with
the procedures established under section 103(e)(2).
``(iii) The assigned judge shall promptly provide a written
statement for the record of the reasons for any determination
under this subsection. Upon the request of the Government,
any order setting aside a nondisclosure order shall be stayed
pending review pursuant to paragraph (3).
``(B) A judge considering a petition to modify or set aside
a production order may grant such petition only if the judge
finds that such order does not meet the requirements of this
section or is otherwise unlawful. If the judge does not
modify or set aside the production order, the judge shall
immediately affirm such order, and order the recipient to
comply therewith.
``(C)(i) A judge considering a petition to modify or set
aside a nondisclosure order may grant such petition 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.
``(ii) If, upon filing of such a petition, the Attorney
General, Deputy Attorney General, an Assistant Attorney
General, or the Director of the Federal Bureau of
Investigation certifies that disclosure may endanger the
national security of the United States or interfere with
diplomatic relations, such certification shall be treated as
conclusive, unless the judge finds that the certification was
made in bad faith.
``(iii) 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.
``(D) Any production or nondisclosure order not explicitly
modified or set aside consistent with this subsection shall
remain in full effect.
``(3) A petition for review of a decision under paragraph
(2) to affirm, modify, or set aside an order by the
Government or any person receiving such order shall be made
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 by
the Government or any person receiving such order for writ of
certiorari, the record shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(4) Judicial proceedings under this subsection shall be
concluded as expeditiously as possible. The record of
proceedings, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures established by the Chief Justice of the
United States, in consultation with the Attorney General and
the Director of National Intelligence.
``(5) All petitions under this subsection shall be filed
under seal. In any proceedings under this subsection, the
court shall, upon request of the Government, review ex parte
and in camera any Government submission, or portions thereof,
which may include classified information.''.
SEC. 4. DISCLOSURES.
(a) FISA.--Subparagraph (C) of section 501(d)(2) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861(d)(2)), as amended by the applicable Act, is amended to
read as follows:
``(C) At the request of the Director of the Federal Bureau
of Investigation or the designee of the Director, any person
making or intending to make a disclosure under subparagraph
(A) or (C) of paragraph (1) shall identify to the Director or
such designee the person to whom such disclosure will be made
or to whom such disclosure was made prior to the request.''.
(b) Title 18.--Paragraph (4) of section 2709(c) of title
18, United States Code, as amended by the applicable Act, is
amended to read as follows:
``(4) At the request of the Director of the Federal Bureau
of Investigation or the designee of the Director, any person
making or intending to make a disclosure under this section
shall identify to the Director or such designee the person to
whom such disclosure will be made or to whom such disclosure
was made prior to the request, except that nothing in this
section shall require a person to inform the Director or such
designee 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 the request under subsection
(a).''.
(c) Fair Credit Reporting Act.--
(1) In general.--Paragraph (4) of section 626(d) of the
Fair Credit Reporting Act (15 U.S.C. 1681u(d)), as amended by
the applicable Act, is amended to read as follows:
``(4) At the request of the Director of the Federal Bureau
of Investigation or the designee of the Director, any person
making or intending to make a disclosure under this section
shall identify to the Director or such designee the person to
whom such disclosure will be made or to whom such disclosure
was made prior to the request, except that nothing in this
section shall require a person to inform the Director or such
designee 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 the request for the identity of
financial institutions or a consumer report respecting any
consumer under this section.''.
(2) Other agencies.--Paragraph (4) of section 627(c) of the
Fair Credit Reporting Act (15 U.S.C. 1681v(c)), as amended by
the applicable Act, is amended to read as follows:
``(4) At the request of the authorized government agency,
any person making or intending to make a disclosure under
this section shall identify to the requesting official of the
authorized government agency the person to whom such
disclosure will be made or to whom such disclosure was made
prior to the request, except that nothing in this section
shall require a person to inform the requesting official 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 the request for information under subsection
(a).''.
(d) Right to Financial Privacy Act.--
(1) In general.--Subparagraph (D) of section 1114(a)(3) of
the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3)), as
amended by the applicable Act, is amended to read as follows:
``(D) At the request of the authorized Government authority
or the Secret Service, any person making or intending to make
a disclosure under this section shall identify to the
requesting official of the authorized Government authority or
the Secret Service the person to whom such disclosure will be
made or to whom such disclosure was made prior to the
request, except that nothing in this section shall require a
person to inform the requesting official of the authorized
Government authority or the Secret Service 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 the
request for financial records under this subsection.''.
(2) Federal bureau of investigation.--Clause (iv) of
section 1114(a)(5)(D) of the Right to Financial Privacy Act
(12 U.S.C. 3414(a)(5)(D)), as amended by the applicable Act,
is amended to read as follows:
``(iv) At the request of the Director of the Federal Bureau
of Investigation or the designee of the Director, any person
making or intending to make a disclosure under this section
shall identify to the Director or such designee the person to
whom such disclosure will be made or to whom such disclosure
was made prior to the request, except that nothing in this
section shall require a person to inform the Director or such
designee 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 the request for financial records
under subparagraph (A).''.
(e) National Security Act of 1947.--Paragraph (4) of
section 802(b) of the National Security Act of 1947 (50
U.S.C. 436(b)), as amended by the applicable Act, is amended
to read as follows:
``(4) At the request of the authorized investigative
agency, any person making or intending to make a disclosure
under this section shall identify to the requesting official
of the authorized investigative agency the person to whom
such disclosure will be made or to whom such disclosure was
made prior to the request, except that nothing in this
section shall require a person to inform the requesting
official 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 the request under subsection
(a).''.
SEC. 5. PRIVACY PROTECTIONS FOR LIBRARY PATRONS.
Section 2709 of title 18, United States Code, as amended by
the applicable Act, is amended by adding at the end the
following:
``(f) Libraries.--A library (as that term is defined in
section 213(1) of the Library Services and Technology Act (20
U.S.C. 9122(1)), the services of which include access to the
Internet, books, journals, magazines, newspapers, or other
similar forms of communication in print or digitally by
patrons for their use, review, examination, or circulation,
is not a wire or electronic communication service provider
for purposes of this section, unless the library is providing
the services defined in section 2510(15) (`electronic
communication service') of this title.''.
This Act shall become effective immediately upon enactment.
The PRESIDING OFFICER. The Senator from New Hampshire.
[[Page S1561]]
Mr. SUNUNU. Madam President, I ask unanimous consent that the
following votes in this stacked series be limited to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________