[Congressional Record Volume 152, Number 25 (Thursday, March 2, 2006)]
[Senate]
[Pages S1598-S1632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA PATRIOT TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005--
CONFERENCE REPORT
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the conference report to accompany H.R. 3199,
which the clerk will report.
The assistant legislative clerk read as follows:
Conference report to accompany H.R. 3199, an act to extend
and modify authorities needed to combat terrorism, and for
other purposes.
The PRESIDING OFFICER. Under the previous order, the time until 2:30
p.m. shall be equally divided, with 1 hour of the time controlled by
the minority to be under the control of the Senator from Wisconsin, Mr.
Feingold.
Mr. VITTER. Mr. President, I ask unanimous consent that I be
permitted to speak as in morning business for up to 15 minutes and that
the time be charged to the Republican side. I further ask that Senator
Stevens be recognized at 12:15 for up to 5 minutes and Senator Byrd
then be recognized for up to 35 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Lobbying Reform
Mr. VITTER. Mr. President, I rise to speak on the very important
subject of lobbying reform. When you think of our role in our
constitutional system and how important it is that that role
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be held in high regard and confidence by the American public, this
issue certainly takes center stage as a very important one that we need
to address. Again, it goes to the heart of who we are and what we are
about and the heart of the crucial task of having the confidence of the
American people in our system.
Obviously, in the last year, in particular, that has been shaken--
shaken by some very real and serious scandals that have touched the
Congress. Because of that, we need to address these issues of lobby
reform, campaign finance reform, and other related issues very boldly
and very directly.
Again, why do we need to do this? For a very simple reason. This goes
to the heart of our credibility, the heart of the central issue: Do the
American people have confidence in our integrity, in our ability to put
their interests ahead of the interests of narrow or special interests?
I come to this set of issues with quite a bit of experience from
Louisiana. These sorts of issues have been at the center of our
political debate for quite some time because, quite frankly, we have
fought our own challenges in terms of integrity and credibility. We
have had a political culture and a political history riddled with
corruption and cronyism. Many of us are working very hard to get beyond
that. Before I came to the House of Representatives in 1999, I served
in the Louisiana legislature. While I was there for about 7 years,
these sorts of issues--reform issues, lobby reform, campaign finance
reform--were at the very top of my agenda because, again, what could be
more important than building the confidence of citizens in the
integrity of their Government? Certainly, when I stepped into the
Louisiana legislature in January 1992, that credibility and that
integrity absolutely needed bolstering.
When I first went to the legislature in 1992, we had a Governor named
Edwin Edwards. We had an explosion of legalized gambling issues and
legalized gambling concerns. That only fueled the need to address these
central, ethical lobby and related issues. Issues such as the influence
of gambling and gambling contributions came to the floor, and the
influence of gambling entities on elected officials. Because of all
this, I filed several formal ethics complaints against our then-
Governor, Edwin Edwards. Many of those were successful to help draw
attention to the very real problems that were persistent. And then
several years later, that was actually followed by Federal prosecution
of then-former Governor Edwards on gambling-related charges, and he now
still serves a significant sentence in Federal prison.
Other issues came before us, such as gambling contributions. We had
an infamous incident of the president of the State Senate handing out
gambling contribution checks on the floor of the Senate. This caught
everybody's attention, and the good part of the incident--the only good
part--is that it ushered in more reform, more cleaning house, if you
will.
So I was very involved in those issues for exactly the same reason.
They went to the heart of what we are about. They went to the heart of
voters' and citizens' confidence. They went to the heart of the
question of our integrity.
In part, because of that background and that experience, I was very
interested in being involved in these ethics reform and lobby reform
efforts on Capitol Hill. Very early on, I joined the working group in
the Senate that was focused on these important issues. The group
consisted of Senators Santorum, McCain, Lott, Kyl, Lieberman, Obama,
Isakson, Dodd, Feingold, and Collins. It was a very strong, very
sincere bipartisan working group to look hard at these crucial
questions and to come up with a strong package that could gain
bipartisan consensus support, and that we could pass through the
Senate.
In working with this group, we discussed a lot of issues and tried to
hone in on the key abuses and, therefore, the key reforms we thought we
needed to address. That led to our releasing a statement in favor of
meaningful lobby reform, particularly with regard to the following
areas: The revolving door between private lobbying and public service;
privately funded travel, which has clearly been abused in the past;
gifts from lobbyists; improved lobbying disclosure; earmarks and the
abuse of earmarks and the need for transparency and some limit in terms
of those earmarks; strengthened ethics guidelines, training, and
enforcement.
Again, I compliment all of my fellow Senators who worked on that
important group--Senators Santorum, McCain, Lott, Kyl, Lieberman,
Obama, Isakson, Dodd, Feingold, and Collins. We all worked together in
a very aggressive and sincere way. I think we have made a lot of
headway. That headway is being exhibited this week and even more next
week.
This past Tuesday, the Senate Rules Committee, chaired by Senator
Lott, voted out a consensus package of important reforms. Now, today,
the other committee of jurisdiction, the Committee on Homeland Security
and Governmental Affairs, chaired by Senator Collins, will take a look
at their side of these matters--those matters in this general category
that fall under their jurisdiction. I think they are going to come out
today with a strong and significant package in terms of matters that
come from their jurisdiction. Of course, as I said, Senators Lott and
Collins were very active, very forceful, and contributing members to
the working group.
I look forward to supporting these two packages that will come
together next week on the Senate floor. But as I do, I also look
forward to strengthening the package, perhaps here on the Senate floor,
perhaps through separate legislation, on other crucial questions, which
I truly believe we also need to address in a bold and direct and
forceful way to gain the confidence of the American people.
I want to highlight three of those additional issues today. The first
has to do with a very important matter of Indian tribe campaign
contributions. Now, this, as everyone knows, is not some theoretical
concern. This issue has been at the heart of the recent scandals that
have plagued the Congress and the country with regard to lobby reform
and campaign contributions. So this is not a theoretical or abstract
concern.
What is the problem? The fundamental problem, as I see it, is that
the rules are very different and very tilted for Indian tribes, as
opposed to other entities such as corporations. How is that true? Let
me give you a few examples. The first is that Indian tribes are treated
as ``persons'' under Federal campaign finance law, and because of that
they are allowed to contribute up to $2,100 per election to a
candidate. But they are not considered what are called ``individuals''
under the law. For that reason, there is no aggregate limit in terms of
how much money they can give to Federal political campaigns overall in
an election cycle.
For other entities, such as corporations, there is absolutely an
overall limit of $101,400. That is a lot of money but understand that
tribes have no such limit, so they can go beyond that and give
absolutely as much as they want, without limit, to Federal campaigns.
The second area of difference I think is even more significant, and
that is because most Indian tribes are unincorporated, they are not
subject to any rules or ban on using corporate treasury funds to fund
all of this or to any rules with regard to mandatory disclosure of the
source of the funds they use and where they go. That is a huge
difference.
Corporate PACs, of course, have to collect money in very certain
ways. They cannot write a check out of the corporate treasury. An
Indian tribe can and, in doing so, doesn't have to disclose in any
meaningful way where the money came from or where it is going.
The second issue I want to highlight is the ability of some
incumbents, some Members of Congress, in the House and Senate, to pay
their spouses or dependent children for work on their own political
campaign. Why is that a problem? It is a fundamental problem, in my
opinion, because it gives Members of Congress the ability to increase
their salary if they want to abuse that right to write checks to their
own personal bank account from their campaign account by ``hiring'' a
spouse or even a dependent child or both.
Again, this is not a theoretical concern; this has been a practice in
the past and is, to at least a limited extent, a practice now. There
may be some spouses or some kids who do a lot
[[Page S1600]]
of work for that paycheck, who do a full day's work for a full day's
paycheck. But, clearly, this is an area that is wide open to abuse and,
in fact, in my opinion, has been abused in the past.
So how do we fix it? I think it is pretty simple. I think to gain the
confidence of the American people and to do ourselves a favor, we fix
it in a very simple and direct way, which is by completely banning
spouses or dependent children from being on the payroll of a Member's
campaign or on the payroll of a Member's leadership PAC.
The final issue that I quickly want to highlight is the issue of
Members' spouses being able to lobby Congress. Again, I think in the
real world, in the heartland of America, this causes average citizens
and average voters a lot of concern. The concern, again, is obvious. A
Member's spouse has a unique ability to lobby, No. 1. No. 2, that
relationship, if a Member's spouse is on the payroll of a lobbying
firm, means that the lobbying firm is writing a check, which basically
goes directly into the family banking account of that Member.
How do we address this? We need to be very careful to address it
responsibly and carefully and also to take into account the fact that
some spouses may have been a true lobbyist with true expertise, earning
an honest day's work, before they were ever spouses of a Member of
Congress. So I believe the way to address it is to ban that activity if
the spouse was not a registered lobbyist a year or more before the
Member was elected to Congress or the marriage between the spouse and
the Member occurred.
I think that is a responsible, fair way to address a very real
concern, a very real issue in the hearts and minds of the American
people.
I close by again saying I appreciate all of the work of my fellow
members of the working group on which I serve. I look forward to that
legislation coming to the floor next week, and I also look forward to
us addressing other crucial issues that may not be in that underlying
package, such as campaign contributions of Indian tribes, such as
spouses and dependent children being on the payrolls of campaigns, and
such as lobbying by Member spouses.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Ensign). Who yields time? The Senator from
Alaska.
Permanent Postponement of S. 1977
Mr. STEVENS. Mr. President, I have come to the floor today to ask a
request of the joint leadership. Last year, I introduced S. 1977 to
repeal a provision of the 1977 reauthorization of the Marine Mammal
Protection Act of 1972. My bill was designed to address the concerns on
the west coast about the impact of high energy prices on their
economies, their businesses, and their consumers.
Upon its introduction, S. 1977 was immediately met with press
releases condemning it. I believe the purpose of my legislation was
deliberately misinterpreted. By repealing this provision, this bill
would ensure that the Cherry Point refinery in the State of Washington
could maintain its current capacity.
The Cherry Point refinery processes 225,000 barrels of crude oil per
day. About 60 percent of the crude oil processed at the refinery comes
from my State of Alaska, and 70 percent of its refined product is
consumed by businesses, vehicles, and industries located in Washington
State.
S. 1977 deals solely with the construction or expansion of marine
terminals and docks in Puget Sound specifically at Cherry Point. It has
nothing to do with the number or size of tankers in Puget Sound. The
Coast Guard controls that through regulation. The existing provision of
law under consideration limits the expansion of docks which is vital to
the area's economy. If this provision is enforced, it will eventually
reduce crude oil delivery at the Cherry Point refinery by about 10
percent, reducing fuel capacity for the entire region by about 704,000
gallons per day of refined product.
My intention on introducing this legislation was to ensure stable
supplies of fuel for the Pacific Northwest at the existing capacity. It
would not have increased capacity at all.
Some have litigated this issue in the press, politicized this issue,
and leveraged it for personal political publicity. Some Washingtonians
have appealed to me because they don't like to see a conflict between
our State and their State. They contacted me privately and sought to
work this out.
In particular, one letter convinced me that despite my good
intentions, the bill may not be the best policy for the people of
Washington right now. But they contacted me.
Because of my private consultation with the author of the letter,
which I do appreciate very much, I have come to the floor to ask that
the joint leadership institute procedures to bring about the permanent
postponement of this legislation and indicate we will never take it up.
It is my understanding that this is the only procedure available as
it is not possible for me to ask to withdraw it. I have never, in my 38
years in the Senate, asked to pull legislation or have any bill I
introduced be permanently postponed. But that is my intention now.
For years, I have fought for Alaska's right to determine our State's
future and to develop our own energy resources, particularly in the
Alaska Coastal Plain. I defer to this policy now, and I believe the
people of Washington will have to make this decision. It is a decision
that will have to be made. But based on the private conversations and
the letter I mentioned, I yield to the concerns of Washingtonians on
this legislation. I still believe S. 1977 is the right policy, but I
respect the rights of those living in Washington State to make the
decision as to when that policy should be pursued. Consistent with my
personal philosophy, again I ask that the leadership find a way to
permanently postpone consideration of S. 1977.
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. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Appointing Conferees
Mr. President, still another day has gone by. It is now Thursday, and
we have been unable to appoint conferees for the pension reform bill.
This is a shame. Up to 40 million Americans are concerned about what we
do in the Senate. They may not wake up every morning thinking about it,
but there are millions of Americans who are worried about their
pensions, and they should be.
It is so important that we get this matter to conference and come
back with a bill that will help those 40 million Americans. We passed a
bill out of this body on a bipartisan basis; 97 of the Senators voted
for it. Not only was it a bipartisan vote, it was a bipartisan effort
to get it to the floor. We need to do things on a bipartisan basis.
This pension reform bill is an indication of how we can work together,
but it shouldn't break down now.
There is a dispute over whether the conference should have seven
Republicans or eight Republicans. That is what it amounts to, whether
it has seven Republicans going to conference or eight Republicans.
There is a two-vote difference. Because of the majority, 55 to 45, we
have agreed to a two-vote difference, but it is not right that we are
not going to conference because the majority doesn't want an extra
Senator.
I need an extra Senator. I need 8 to 6. I have Senators who are
heavily engaged in this matter and who have worked hard: Senator
Kennedy, Senator Harkin, Senator Mikulski, and, of course, Senator
Baucus who does the finance aspect of this and has worked very hard.
Senator Rockefeller has worked hard on this. There isn't anything
unreasonable about saying: Mr. Leader, instead of going for seven
Republicans, go with eight, go with nine. They have already agreed to
go with nine, they just wanted the difference to be 9 to 6. They wanted
a difference of three. I can't do that. I will go with nine. If they
want nine Senators from the current seven, fine, I will go along with
that.
In yesterday's Congress Daily the majority said they didn't want an
8-to-6 ratio because, ``How do you break a tie?'' I took my math
training at Searchlight Elementary School. We
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had one teacher who taught all eight grades and it wasn't that great, I
am sure. But I even know that really doesn't make sense. Remember, how
do you break the tie if the vote is 8 to 6?
We know that can't be the real reason for the delay because we know
the majority's first proposal was 7-5. You would have to have the same
concerns about 7-5, so that can't be the reason.
I understand another reason for the delay could be the majority's
insistence that they get a three-vote margin conference. We can't start
something like that around here. There are five Republicans, and I
understand and appreciate that. We have agreed to a two-vote margin.
That is fair. We have never had a conference committee that I am aware
of with a three-vote margin, certainly not in this session of Congress.
I am hard pressed to remember that it ever happened, so that can't be
the reason.
So there must be something else going on. There must be pressure
coming from people downtown, as we refer to the special interest groups
that are interested in legislation. There must be pressure coming from
these special interest groups to appoint particular Members to this
conference, to ensure that they get the result they seek at the end of
the conference. It is like fixing a jury. Sometimes you work too hard
and you wind up with a bad result.
I had a case once where I represented the North Las Vegas Police
Department. They had been accused of false arrest. So we go to pick the
jury, and the plaintiff's attorney--I was representing the defendant--
used up all their voir dire during the voir dire examination of the
jury, and then we have a period of time after that wherein you can
peremptorily challenge a juror. You don't have to have a reason, you
just get rid of them. He used all of his peremptory challenges, and
somebody stood and talked who had been a police officer. He didn't want
that guy on the jury, but he had used up all of his challenges. He
couldn't get rid of a juror who was a police officer, who would tend to
side with me. He worked a little too hard in coming up with a jury that
he thought would be OK and wound up trying too hard. So sometimes you
try to play with the jury too long and you wind up being hurt.
In that case, I got a defense verdict. I won the case. I don't know
if that was the reason, but I am sure it didn't hurt me to have a
former police officer during that jury deliberation.
So I really don't know how to explain this deadlock. The downtown
interests, the special interests say they obviously can't have that
Republican or that Democrat on this conference because they don't agree
with whomever it is on this issue.
This bill passed the Senate by a vote of 97 affirmations. Ninety-
seven Senators said it is a good bill. This is not a Republican
conference; it is a Senate conference. Is it going to make that much
difference if it is 8-6 or 9-7, compared to 7-5? I don't think so.
In the past, we would appoint conferees based strictly on seniority.
If the majority leader doesn't want to do that, then have him pick
based on some other principle. We will probably stick with the
seniority rule over here, but not necessarily. There is little
consideration of how anyone would vote. I haven't asked those I would
like to be on the conference committee--Senator Kennedy, Senator
Baucus, Senator Rockefeller, Senator Harkin, Senator Mikulski--how they
are going to vote. I do know that Senator Harkin and Senator Mikulski
both believe there should be pension reform, but they are experts in
different areas of this very complex piece of legislation that is so
important that we complete. We will appoint people to this conference
and let them do what they think is right. We need to move on.
It should not have taken 9 months to consider the bill in the first
place, and it shouldn't take us 2 months to go to conference. Democrats
have cooperated on this every step of the way--Senators Baucus and
Grassley, Kennedy and Enzi--the chairman and ranking members of the
committees. We are ready to go to conference 5 minutes from now. If the
majority leader walked through these doors and said: I move that we go
to conference, the ratio will be 8-6, 9-7, it is done. They could start
meeting today. We are not delaying this legislation.
I don't understand all the reasons that we are not going forward with
the conference, but I have to tell you, it looks somewhat suspicious to
me when they are saying, instead of having seven Republican Senators,
we want eight, for some reason. That is wrong. We need to stop playing
around with this. Up to 40 million Americans, I repeat, are counting on
us to do this the right way and to do it quickly.
Mr. President, I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The 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.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that I be
recognized at 2:15 p.m. for up to 15 minutes to make some final remarks
on this bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, yesterday the Senate took further steps
to reauthorize the PATRIOT Act without the fundamental checks and
balances that so many of us believe are needed. To bring us back to
first principles, I read aloud the Constitution and the Bill of Rights.
And to remind us of the broad, bipartisan support for amending the
PATRIOT Act all over this country, I read the eight statewide
resolutions that have passed in the last few years expressing concerns
about the PATRIOT Act. I also read some of the nearly 400 local
resolutions that have passed--the four resolutions from my own State of
Wisconsin. Today I want to continue by reading some additional items to
take my colleagues back to how hard we fought in November and December
to stop the flawed conference report, and how many Americans wanted us
to do better than we have done this week.
Let me start with a few editorials. The resolutions passed by State
and city governments that I read here on the floor yesterday are not
the only way by which Americans have expressed their concerns about the
PATRIOT Act. The Fourth Estate has weighed in too, with many newspapers
running editorials or columns criticizing the PATRIOT Act's effect on
Americans' freedom. And not just a few newspapers, but dozens and
dozens, from all across the United States. From major national
newspapers to small, local newspapers. Papers in big cities and small
towns. All concerned about the erosion of civil liberties under the
PATRIOT Act. I am going to read just a few representative editorials.
From the Orlando Sentinel, August 17, 2005; headline: Fighting the
terrorists.
Our position: Patriot Act changes need to be tough but
protect against abuse of power.
The U.S. House and Senate have taken different approaches
to renewing the USA Patriot Act, the sweeping anti-terrorism
law that otherwise would expire at year's end. The Senate's
more thoughtful, bipartisan approach deserves to prevail when
members begin meeting next month to reconcile their competing
proposals.
The House proposal leaves the Patriot Act's expanded
surveillance and law-enforcement powers largely intact. It
does not accommodate legitimate concerns raised by both
liberals and conservatives about inadequate checks on those
powers.
The Senate proposal, passed unanimously, includes what
Judiciary Chairman Arlen Specter called ``responsible changes
to safeguard civil liberties.'' It would continue to let the
government obtain secret court orders to seize medical,
financial, library and other records, but only records tied
to suspected terrorists or spies, or people in contact with
them. It would require the government to notify targets of
secret search warrants after seven days, though a judge could
extend that deadline.
Also under the Senate proposal, two of the most
controversial Patriot Act provisions--to seize records
secretly and conduct roving wiretaps--would expire in 2009
unless renewed. That would encourage Congress to re-evaluate
those provisions in four years.
The Senate proposal would not stop the government from
using the powers in the Patriot Act to go after terrorists.
But its changes would better protect ordinary Americans from
possible abuse of those powers.
Next, The Los Angeles Times; editorial, ``Checks on the Patriot
Act,'' from November 21, 2005.
The Patriot Act, a 4-year-old federal law that gave
investigators unprecedented power to search for and chase
terrorists, is a case study in bad lawmaking. Angry and
anxious to respond to the atrocities of 9/11, Congress
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hastily approved a measure that exposed an indeterminable
number of Americans to unreasonable searches and intrusive
snooping for the sake of the war on terror. The law provided
few of the legal system's usual checks to protect against
investigators abusing the new capabilities.
The measure eventually generated outrage on both sides of
the political spectrum, as well as from corporations,
libraries and retailers forced to report secretly on the
activities of employees and customers. Nevertheless, in their
haste to wrap up business before the Thanksgiving recess,
lawmakers were poised last week to reauthorize the Patriot
Act, which is due to expire at the end of the year, with only
minor changes.
That was the outcome sought by the White House and its
allies in the House. A bipartisan group of six senators
stopped the bill, however, by threatening a filibuster. They
demanded that House and Senate negotiators produce a
reauthorization bill with more of the safeguards that the
Senate had approved earlier this year.
The senators' demands are modest, recognizing that law
enforcement agencies do need enhanced powers to battle
elusive and technologically sophisticated groups of
terrorists. But the public also needs to be able to review
how those powers have been used. And people need more
assurance that the information vacuumed up by their
government is actually connected to a suspected terrorist or
spy.
In particular, the bill should do away with the automatic,
permanent gag orders that allow investigators to hide forever
their demands for records from banks, libraries, doctors and
other sources. And the most controversial provisions of the
Patriot Act should be extended for a much shorter period than
the seven years suggested by House and Senate conferees.
When Congress approved the Patriot Act, it put its trust in
prosecutors and investigators to use their expanded powers
responsibly. It now appears that trust was misplaced.
Authorities have gone on a snooping frenzy since 2001,
issuing more than 30,000 secret demands for records per year,
according to the Washington Post. And unless the law is
changed, no one will ever know whether those records should
have been gathered, or what has been done with them.
Americans want to trust their government. It is their
government's foundation, its system of checks and balances,
that enables that trust.
Now, from The Pittsburgh Post-Gazette, entitled, ``True patriots:
Some in Congress won't let terror limit freedom,'' from November 30,
2005.
Long before the 9/11 terrorist attacks and the so-called
Patriot Act that was passed in reaction and fear, a man with
stellar patriotic credentials who championed the cause of
liberty had words of wisdom for his fellow Americans: ``They
that can give up essential liberty to obtain a little
temporary safety deserve neither liberty nor safety.''
What Benjamin Franklin said in his own day remains a
telling commentary for our time. Indeed, these words could
have been written specifically about the Patriot Act, which
went too far in trying to accomplish a legitimate goal: to
remove some of the bureaucratic and legal barriers that stood
in the way of hunting down terrorists.
But increasing government power while decreasing judicial
oversight was a troubling exercise in a free country, and
Congress realized as much when it passed the Patriot Act,
including sunset provisions that could be considered in
calmer days. That time has come and plenty of true patriots
have stood up and offered suggestions that would make the
Patriot Act more respectful of civil liberties and the
American ideal of freedom.
This is one issue that provides common ground for liberals
and conservatives. When a government has the power to search
a suspect's premises without his knowledge and can retrieve
personal business and library records of people without
showing any connection to terrorism, then the alarms that go
up are for Americans regardless of party. That is why, for
example, former Republican Rep. Bob Barr, the scourge of
President Clinton, finds himself on the same side of the
fight as the American Civil Liberties Union.
Despite the bipartisan qualms about reauthorizing the
Patriot Act without proper amendment, the Bush administration
has not been sympathetic. Trust us, it says implicitly. But
because paranoia animates policy for this White House, the
use of the Patriot Act is bound to go too far and impinge on
basic civil liberties. This is an administration, after all,
that feels threatened when Sen. John McCain and others want
to outlaw torture.
Sadly, ordinary Americans can't naively trust their freedom
to such hands. The Patriot Act needs to have reasonable
checks and balances written into it. Of the two bills to
reauthorize the act, the Senate version accomplishes this
better than the House measure. A tentative agreement has been
reached on reconciling the bills, but principled opposition
remains.
Six senators--three Republicans (Larry Craig of Idaho, John
Sununu of New Hampshire and Lisa Murkowski of Alaska) and
three Democrats (Richard Durbin of Illinois, Russell Feingold
of Wisconsin and Ken Salazar of Colorado)--have emerged to
resist accepting a version of the Patriot Act that doesn't
meet their legitimate concerns.
This isn't about being pro-terror but pro-American. It is
possible to keep essential liberty and obtain safety. For
Americans to deserve both, the true patriots on Capitol Hill
need support.
From the New York Times, just recently, on February 11, 2006,
entitled, ``Another Cave-In on the Patriot Act.''
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. When the Patriot
Act was passed after Sept. 11, 2001, Congress made some of
its most far-reaching provisions temporary so it would be
able to reconsider them later on. Those provisions were set
to expire last December, but Congress agreed to a very short
extension so greater civil liberties protections could be
added. This week, four key Republican senators--later backed
by two Democrats--said that they had agreed to a deal with
the White House. It is one that does little to protect
Americans from government invasions of their privacy.
One of the most troubling aspects of the Patriot Act is the
``gag order'' imposed by Section 215, which prohibits anyone
holding financial, medical and other private records of
ordinary Americans from saying anything when the government
issues a subpoena for those records. That means that a person
whose records are being taken, and whose privacy is being
invaded, has no way to know about the subpoena and no way to
challenge it. Rather than removing this gag order, the deal
keeps it in place for a full year--too long for Americans to
wait to learn that the government is spying on them. Even
after a year, someone holding such records would have to meet
an exceedingly high standard to get the gag order lifted. It
is not clear that this change has much value at all.
The compromise also fails to address another problem with
Section 215: it lets the government go on fishing
expeditions, spying on Americans with no connection to
terrorism or foreign powers. The act should require the
government, in order to get a subpoena, to show that there is
a connection between the information it is seeking and a
terrorist or a spy.
But the deal would allow subpoenas in instances when there
are reasonable grounds for simply believing that information
is relevant to a terrorism investigation. That is an
extremely low bar.
One of the most well-publicized objections to the Patriot
Act is the fact that it allows the government to issue
national security letters, an extremely broad investigative
tool, to libraries, forcing them to turn over their patrons'
Internet records. The wording of the compromise is unclear.
If it actually says that national security letters cannot be
used to get Internet records from libraries, that would be an
improvement, but it is not clear that it does.
In late December, it looked as if there was bipartisan
interest in the Senate for changing the worst Patriot Act
provisions and standing up for Americans' privacy rights. Now
the hope of making the needed improvements has faded
considerably.
Clearly the PATRIOT Act touched a nerve, and has continued to do so
for 4 years now. While I support a strong fight against terrorism, we
cannot sacrifice our citizens' basic liberties in that fight. To do so
would weaken this country.
Next I want to turn back to some PATRIOT Act resolutions. It was not
just State and city governments that passed resolutions these past
several years. Colleges and universities across the United States have
become actively involved in the PATRIOT Act debate as well. Across the
country, 53 resolutions have been passed on 44 campuses advocating for
substantial changes to the PATRIOT to protect the civil liberties of
the American people. From Mt. Holyoke, a small private all-women's
liberal arts school in South Hadley, MA, to the University of Texas at
Austin, one of the largest public universities in the United States,
students and faculties alike are coming together to pass these
resolutions. Resolutions have been passed on college campuses in states
from California to Kentucky. I will now read a few of these campus
resolutions.
A resolution concerning the protection of students' civil
rights in the wake of the passage of the USA PATRIOT Act.
University of Texas at Austin Student Government
WHEREAS: The United States Congress passed the Uniting and
Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act (USA PATRIOT Act;
Public Law 107-56) on October 25, 2001, championed by U.S.
Attorney General John Ashcroft;
WHEREAS: The 4th amendment of the Bill of Rights
establishes: The right of the people
[[Page S1603]]
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
2. WHEREAS: According to Mayor Pro Tem Jackie Goodman's
Austin City Council resolution regarding the PATRIOT Act,
``fundamental rights granted by the United States
Constitution are threatened by actions taken at the Federal
level, notably by passage of certain sections of the `U.S.A.
P.A.T.R.I.O.T. Act,' other acts and executive orders which,
among other things:
Grant potential unchecked powers to the Attorney General
and the U.S. Secretary of State to designate legal domestic
groups as ``terrorist organizations'' by overly broad
definitions, and implying restrictions to Constitutionally
protect First Amendment rights of speech and assembly by
reference, such as political advocacy or the practice of a
religion; while lifting administrative regulations on covert,
surveillance counter-intelligence operations;
Violate the First and Fourth Amendments to the Constitution
through the expansion of the government's ability to wiretap
telephones, monitor e-mail communications, survey medical,
financial and student records, and secretly enter homes and
offices without customary administrative oversight or without
showing probable cause;
Give law enforcement expanded authority to obtain library
records, and prohibits librarians from informing patrons of
monitoring or information requests;
Violate the Fifth, Sixth and Fourteenth Amendments to the
Constitution in establishing secret military tribunals, and
in subjecting citizens and non citizens to indefinite
detention without being allowed an attorney, without being
brought to trial, and without even being charged with a
crime;
Authorize eavesdropping on confidential communications
between lawyers and their clients in federal custody;''
WHEREAS: In the October 1997 edition of Global Issues,
available as Vol. 2, No. 4 of the USIA Electronic Journal,
then Senator John Ashcroft (R-MI) wrote in an article
entitled, ``Keep Big Brother's Hands Off the Internet,''
The FBI wants access to decode, digest and discuss
financial transactions, personal e-mail, and proprietary
information sent abroad--all in the name of national
security. . . This proposed policy raises obvious concerns
about American's privacy. . . The protections of the Fourth
Amendment are clear. The right to protection from unlawful
searches is an indivisible American value. Two hundred years
of court decisions have stood in defense of this fundamental
right. The state's interest in crime-fighting should never
vitiate the citizens' Bill of Rights. . .
The administration's interest in all e-mail is a wholly
unhealthy precedent, especially given this administration's
track record on FBI files and IRS snooping. Every medium by
which people communicate can be subject to exploitation by
those with illegal intentions. Nevertheless, this is no
reason to hand Big Brother the keys to unlock our e-mail
diaries, open our ATM records, read our medical records, or
translate our international communications. . .
WHEREAS: Eva Poole, President of the Texas Library
Association, the oldest and largest organization representing
Texas libraries, including university and academic libraries,
stated in a personal e-mail by request:
The USA PATRIOT Act is just one of several troubling
policies that compromise the public's privacy rights.
Enhanced surveillance powers permitted under the provisions
of the Act license law enforcement officials to peer into
Americans' most private reading, research, and
communications. Several of the Act's provisions not only
violate the privacy and confidentiality rights of those using
public libraries, but take no consideration of constitutional
checks and balances as it authorizes intelligence agencies to
gather information in situations that may be completely
unconnected to a potential criminal proceeding.
Librarians do not know how the USA PATRIOT Act and related
measures have been applied in libraries because the gag order
bars individuals from making that information public. Equally
troubling is the fact that librarians are not allowed to
comment on FBI visits to examine library users' Internet
surfing and book-borrowing habits. I oppose any use of
governmental power to suppress the free and open exchange of
knowledge and information.
WHEREAS: The Student Governments of the University of
California at Berkeley and Santa Barbara, University of
Alaska Fairbanks, University of Washington, Washington State
University, University of Wisconsin and Southern Oregon
University have passed resolutions denouncing the USA PATRIOT
Act;
THEREFORE BE IT RESOLVED that the Student Government of the
University of Texas at Austin has been, and remains,
absolutely committed to the protection of civil rights and
civil liberties for all of its students and affirms its
commitment to embody democracy and to embrace, defend, and
uphold the inalienable rights and fundamental liberties
granted to students under the United States and Texas
Constitutions;
BE IT FURTHER RESOLVED that the Student Government of the
University of Texas at Austin firmly calls upon the Austin
Police Department, University of Texas Police Department,
Federal Bureau of Investigation and Joint Terrorism Task
Force to refrain from and, in certain cases, discontinue the
surveillance of individuals, groups of individuals, and
organizations based solely on their participation in
activities protected by the First Amendment to the United
States Constitution, such as political advocacy or the
practice of a religion without reasonable and particularized
suspicion of criminal conduct unrelated to the activity
protected by the First Amendment of the United States
Constitution;
BE IT FURTHER RESOLVED that Student Government respectfully
requests that Dr. Fred Heath, Vice Provost of General
Libraries, direct all UT libraries to post in a prominent
place within the library a notice as follows:
``WARNING: Under Section 215 of the federal USA PATRIOT Act
(Public Law 107-56), records of books and other materials you
borrow from this library may be obtained by federal
agents. This law also prohibits librarians from informing
you if records about you have been obtained by federal
agents. Questions about this policy should be directed to
Attorney General John Ashcroft, Department of Justice,
Washington, DC 20530.'';
BE IT FURTHER RESOLVED that the Student Government of the
University of Texas at Austin commits to organizing a forum
addressing student privacy concerns consisting of a panel of
relevant administrators and community members;
BE IT FURTHER RESOLVED that the Student Government of the
University of Texas at Austin firmly calls upon UTPD to
preserve and uphold students' freedom of speech, assembly,
association, and privacy, the right to counsel and due
process in judicial proceedings, and protection from
unreasonable searches and seizures, even if requested to do
otherwise in accordance with new federal law, which infringes
upon such rights granted to federal or state law enforcement
agencies under powers assumed by the USA PATRIOT Act by
Executive Order;
BE IT FURTHER RESOLVED that the Student Government of the
University of Texas at Austin calls upon the Austin City
Council to do everything in its power to protect and defend
the rights and liberties of University of Texas at Austin
students who reside within jurisdiction of the City of
Austin.
Next:
Associated Students of Mount Holyoke College
A Resolution Affirming Civil Rights and Liberties in Light of the USA
PATRIOT Act
WHEREAS, Mount Holyoke College has a diverse student and
faculty body, including many students from outside the United
States, and many students with diverse cultural backgrounds
whose contributions to this community are vital to the
culture and civic character of Mount Holyoke College; and
WHEREAS, the preservation of civil rights and civil
liberties is a pillar of American society and is essential to
the well-being of any democracy, particularly during times of
conflict when such rights and liberties, especially those of
immigrants and ethnic minorities, may be threatened,
intentionally or unintentionally; and
WHEREAS the preservation of civil rights and liberties is
essential to the well-being of a democratic society; and
WHEREAS, The community of Mount Holyoke College denounces
terrorism, and acknowledges that federal, state and local
governments have a responsibility to protect the public from
terrorist attacks in a rational, deliberative and lawful
fashion to ensure that any new security measure enhances
public safety without impairing constitutional rights or
infringing upon civil liberties; and
WHEREAS, Mount Holyoke College as a private institution, is
also responsible to protect its community, including all
faculty, staff, and students, whether they be residents or
non-residents; and
WHEREAS, the United States Congress passed the Uniting and
Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act (USA PATRIOT Act;
Public Law 107-56) on October 26, 2001; and
WHEREAS, some provisions of the USA PATRIOT Act and other
related federal orders and measures may pose a threat to the
civil rights and civil liberties of all students, staff and
faculty at Mount Holyoke College, including natural citizens
of the United States, and particularly, but not limited to,
those who are of Middle Eastern, Muslim or South Asian
descent; by:
a. Reducing judicial supervision of telephone and Internet
surveillance.
b. Expanding the government's power to conduct secret
searches without warrant.
c. Granting power to the Secretary of State to designate
domestic groups, including political and religious groups, as
``terrorist organizations''.
d. Granting power to the Attorney General to subject non-
citizens to indefinite detention or deportation even if they
have not committed a crime.
e. Granting the Federal Bureau of Investigation (FBI)
access to sensitive medical, mental health, financial and
educational records about individuals without having to show
evidence of a crime.
f. Granting the FBI the power to compel libraries and
bookstores to produce circulation or book purchase records of
their patrons, and forbidding disclosure that such
[[Page S1604]]
records have been requested and produced; and
WHEREAS, law enforcement and security measures that
undermine fundamental constitutional rights do irreparable
damage to the American institutions and values of equal
justice and freedom that the students staff and faculty of
Mount Holyoke College hold dear; and
WHEREAS, the Senate of the Associated Students of Mount
Holyoke College believes that there is not and need not be
conflict between security and the preservation of liberty,
and that students of Mount Holyoke College can maintain their
privacy and be both safe and free;
BE IT RESOLVED BY THE SENATE OF THE ASSOCIATED STUDENTS OF
MOUNT HOLYOKE COLLEGE THAT the SGA Senate supports the
fundamental, constitutionally-protected civil rights and
civil liberties of all members of Mount Holyoke College; and
THAT the SGA Senate opposes those measures that infringe upon
such civil rights and liberties, or that single out
individuals for legal scrutiny or enforcement activity based
solely on their country of origin, religion, ethnicity or
immigration status; and THAT the SGA Senate urges all
students, staff, and faculty of Mount Holyoke College to
respect the civil rights and civil liberties of all members
of this community, regardless of citizenship or heritage; and
THAT the SGA Senate urges the Mount Holyoke College
Department of Public Safety and all other applicable
departments, except when required by law, to refrain from:
a. utilizing race, religion, ethnicity or national origin
as a factor in selecting which individuals to subject to
investigative activities except when seeking to apprehend a
specific suspect whose race, religion, ethnicity or national
origin is part of the description of the suspect,
b. participating in a joint search of the property or
residence, with any law enforcement agency absent the
assurance that simultaneous notice of the execution of a
search warrant to such member of Mount Holyoke College,
c. any practice of stopping drivers or pedestrians for the
purpose of scrutinizing their identification documents
without particularized suspicion of criminal activity, and
THAT the SGA Senate urges the Mount Holyoke College
Department of Public Safety not to subject any individual to
the custody of the South Hadley Police Department, who may be
placed in federal custody, to military detention, secret
detention, secret immigration proceedings, or detention
without access to counsel; and
THAT the SGA Senate urges the Mount Holyoke College
administration to provide notice to all individuals whose
education records have been obtained by law enforcement
agents pursuant to Section 507 of the USA PATRIOT Act
(Disclosure of Educational Records).
Mr. President, I ask unanimous consent to have printed in the Record
the resolution passed by the United Council of Students at the
University of Wisconsin Madison.
There being no objection, the material was ordered to be printed in
the Record, as follows:
University of Wisconsin Student Resolution (2/19/2004)
MC1201-01: Resolution in Response to USA PATRIOT Act
Whereas the Fourth Amendment of the United States
Constitution states;
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized, and;
Whereas the Fifth Amendment of the United States
Constitution states;
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any person
be subject for the same offence to be put twice in jeopardy
of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation, (emphasis added), and;
Whereas Section 1 of the Fourteenth Amendment of the United
States Constitution states;
All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No state
shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws
(emphasis added), and;
Whereas the United Council of University of Wisconsin
Students Policy Platform in regards to Student/Civil/Legal
Rights states the following two points;
United Council opposes discrimination based on but not
limited to race, ethnicity, creed, gender, gender identity,
sexual orientation, religious belief or lack thereof, veteran
status, marital/familial/parental status, age, physical
appearance, disability, political affiliation, national
origin, income level or source, residency status, or
geographic disadvantage for any reason including but not
limited to educational opportunity, employment, housing,
physical or emotional well being, and social attitudes; and;
United Council supports the student campaign for the
statistical accounting and documentation of Racial Profiling
in the UW System, the state of Wisconsin, and the United
States of America;
Whereas the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism, USA PATRIOT, Act of 2001 (H.R. 3162, S. 1510) of
the title officially introduced: `To deter and punish
terrorist acts in the United States and around the world, to
enhance law enforcement investigatory tools, and for other
purposes' became Public Law No. 107-56 on October 26, 2001;
Whereas Senator Russ Feingold (D-WI) was the only member of
the United States Senate to vote against this bill;
Whereas Laura Murphy, Director the American Civil Liberties
Union Washington National Office stated that, ``Included in
this bill are provisions that would allow for the
mistreatment of immigrants, the suppression of dissent and
the investigation and surveillance of wholly innocent
Americans;''
Whereas the USA PATRIOT Act overrides civil liberties such
as those encompassed within the Fourth, Fifth and Fourteenth
Amendments of the United States Constitution;
Be it resolved that United Council appreciates the support
of Senator Russ Feingold for voting against the USA PATRIOT
Act;
Be it further resolved that United Council upholds Civil
Liberties such as those encompassed within the Fourth, Fifth
and Fourteenth Amendments of the United States Constitution;
Be it finally resolved that United Council urges UW
institutions to both officially state that they will protect
students, citizens and non citizens alike, and their rights,
and inform students that they are entitled to legal advice
before cooperating with Federal law enforcement agencies.
Mr. FEINGOLD. Mr. President, every day children across this country
learn about the role of their Government and how it is intended to
function. I have also collected a handful of textbooks used by children
from elementary school up through high school to see what they have to
say about the role of Government. In looking at these books, I notice
that each of them at different reading levels discuss the Government as
a whole, the importance of the Constitution as the foundation of our
Government, and the importance of checks and balances and separation of
powers. Each of these books, at whatever learning level or reading
level, teaches that the Government does not have endless, unchecked
powers over the people it is intended to protect.
I started my presentation after cloture was invoked by reading the
Constitution of the United States. I wish to conclude for now by
reading a very brief portion of one of these books. It is entitled
``National Government, a Kids' Guide.'' ``Separation of Powers.''
The people who wrote the U.S. Constitution wanted to make
sure that the leaders of the government did not have too much
power. The writers spread the power among three separate
branches of government that work together to govern the
country. This is called separation of powers.
The executive branch is lead by the president of the United
States. This part of the government is responsible for making
sure the laws are carried out, or executed.
The legislative branch is made up of the people in the
Senate and the House of Representatives. Together, the Senate
and the House of Representatives are called the United States
Congress. The legislative branch makes the laws.
The third branch is the judicial branch, which is led by
the Supreme Court. The judges--called justices--of the
Supreme Court explain the laws and decide if any laws are not
fair.
Each branch of the government has its own job to do, but
the three branches have to work together. The people who
wrote the Constitution were very careful to make sure that
each branch of the government could check up on the others. A
system called checks and balances keeps different parts of
the government from having too much power.
Mr. President, I ask unanimous consent that Senator Byrd be
recognized at 12:30 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I reserve the remainder of my time.
I yield the floor.
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. KYL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
[[Page S1605]]
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, I ask unanimous consent that I be allowed to
speak until 12:30, with the time to be charged to the Republican side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, the hour has almost arrived. I understand
that in a little less than 3 hours, we will finally be voting for the
final time on the reauthorization of the PATRIOT Act. This is critical
for the defense of our country, the security of our Nation.
I am pleased we have the opportunity now to approve it, and I predict
it will be approved overwhelmingly. The question is, What took us so
long? We could have done this at least 2 weeks ago. Indeed, we could
have done it 2 months ago. Such is the process in the Senate that
sometimes the wheels grind slowly.
The problem is the war on terror. Our enemy does not treat the war
necessarily the same way some people in this country do. They are very
flexible. They are very agile. They do not tell us what they are going
to do in advance. Sometimes they are very patient and wait a long time
to strike, and when they do strike, it can be with great speed and
lethalness, which means that our ability to fight the terrorists has to
be equally agile.
Good intelligence has a short shelf life. Yet that is basically our
main weapon in the war on terror. This is not a war we fight with
planes, tanks, and ships, but with good intelligence to find out where
the terrorists are, who they are, what they are up to, and, if we can,
find out whether we are able to stop their terrorist attacks before
they occur. That takes good intelligence. It takes agility to be able
to get that intelligence, cooperate among the various law enforcement
and intelligence agencies.
Before September 11, several of us had provisions of law we believed
were important to amend in our statutes to provide tools to fight
terrorists. Little did we know how important those would soon become.
Senator Feinstein and I have been ranking member and chairman of the
Subcommittee on Terrorism, Technology and Homeland Security for many
years, since I came to the Senate. We held a lot of hearings on the
subject. We had a lot of ideas about what we wanted to propose.
Shortly after September 11, a lot of these things made their way into
the PATRIOT Act which we were able to approve. Some Members said the
PATRIOT Act was approved hastily. Actually, a lot of the ideas of the
PATRIOT Act had been around for some time, had a lot of debate and
hearings, but there did not seem to be a reason to get them passed;
that is, until September 11, and then, indeed, we did act quickly. But
I submit there is a difference between acting hastily and acting
quickly.
Nevertheless, some of the provisions were sunsetted. Regarding things
we did then and some subsequent amendments to statute, we wanted to
take another look down the road to make sure we did not act too
hastily. Our action today will make it clear that by reauthorizing
these provisions, we intended them to be in effect. We know the
terrorists have not stopped their war on terror, and therefore we dare
not stop the tools to fight terrorism, many of which are embodied in
the PATRIOT Act. So it is important to reauthorize these provisions and
not have them expire or sunset.
There is a certain amount of pride of authorship I confess to since a
lot of the provisions we are reauthorizing today are provisions which I
wrote or helped to write in coauthorship with some of my colleagues.
Let me mention some of these because these are important, one of which
has been known as or has come to be known as the Moussaoui fix, which
is named after Zacarias Moussaoui, sometimes referred to as the 20th
hijacker. In the 108th Congress, Senator Schumer and I introduced the
Moussaoui fix, which allows the FBI to obtain FISA warrants to monitor
and search suspected lone wolf terrorists such as Zacarias Moussaoui.
Now, lone wolf terrorists exist because in today's world, you do not
get a little card that says: I am a proud member of al-Qaida. It is a
very loose-knit organization. Some have likened it to a franchise where
all over the world there are little bands of people--cells--who would
do harm to the West generally and the United States in particular and
who share the same goals and ideals of al-Qaida, frequently have
communication with members of al-Qaida, train in the same way, and
conduct the same kinds of terrorist activities, sometimes in
consultation or concert with al-Qaida. But it is not like a club, it is
not like you are a member of the KGB of the Soviet Union, which is what
the threat was when we wrote the FISA act.
Because the FISA act refers to foreign intelligence organizations or
terrorist organizations, we found that with people such as Zacarias
Moussaoui, who we could not prove was a card-carrying member of any
particular terrorist group but we figured he was a terrorist and up to
no good, we did not have an ability under FISA to seize and search his
computers even though we had the ability to arrest him. This was 2
weeks before September 11. Had we been able to get into the computer,
we might well have discovered the information we later found that could
have pointed us in the direction of an attack on September 11.
Well, that is what the object of the Zacarias Moussaoui fix was: to
enable us to add the lone wolf terrorist to the other situations in
which a FISA warrant could be obtained. And it filled a gap in our laws
that, as I said, might well have uncovered the September 11 conspiracy
had it been in place at the time.
It was reported out of a unanimous Judiciary Committee and passed out
of the Senate 90 to 4 in 2003. In 2004, it was added to the
Intelligence Reform and Terrorism Prevention Act, with the general
PATRIOT Act sunset applied to it. Like the other PATRIOT provisions,
the Moussaoui fix was set to expire at the end of last year. Today, we
will extend the sunset on that critical provision of law for another 4
years.
Another was the material support enhancements. In 2004, I introduced
a bill that, among other things, clarified and expanded the statute
prohibiting the giving of material support to a designated foreign
terrorist organization. These changes helped address perceived
ambiguities in the law that had led the Ninth Circuit Court of Appeals
to strike down parts of it as unconstitutionally vague. The changes
also expanded the law to bar giving any type of material aid
whatsoever--including providing one's self--to a terrorist group.
This legislative proposal also was enacted into law later that year
as part of the intelligence reform bill, and also was subjected to a
sunset. Again, today, with the PATRIOT Act reauthorization conference
report, we repeal that sunset. We make the 2004 material support
enhancements permanent features of our law, as they should be.
Another part of the original PATRIOT Act I helped author was the so-
called pen registers and trap-and-trace authority. Now, the authority
for pen registers and trap and trace is critical for antiterror
investigations. It has been around for years in connection with other
kinds of investigations, and it obviously was an important tool to
fight terrorism.
What these authorities do is allow investigators to discover what
telephone numbers are being dialed into and out of a suspect's
telephone. As I said, they already had this authority in connection
with other kinds of crimes. It certainly made sense to have it track
terrorists. An important feature here was to get one court order from a
judge in one place and not have to hop all around the country wherever
the telephone was used and get a separate court order in that State.
That requirement made it totally useless.
So this one court warrant for trap and trace and pen registers was
enacted. I am very glad to see the conference report repeals the sunset
on this authority--in other words, the automatic ending of the
authority--and makes permanent for antiterror investigations this pen
register and trap-and-trace authority, another critical tool to fight
terrorism.
For the past 2 years, I have also been a cosponsor of legislation
that my colleague, Senator Feinstein, helped to coauthor on seaport
security and mass transportation security. This is especially
interesting in view of the debate and concern right now about seaport
security with which we are all familiar.
[[Page S1606]]
This particular legislation increases the penalties for and, by the
way, also the scope of the criminal offenses for attacks on seaports
and shipping. It also consolidates and updates the laws with regard to
attacks on railroads and other mass transportation facilities.
Now, these proposals also had been amended into the intelligence
reform bill in 2004 by the House of Representatives but have been
dropped in conference. Today these important provisions, which I helped
to coauthor, are enacted into law through the conference report of the
PATRIOT Act.
There is another rather interesting, rather esoteric--one of the
things lawyers debate about--but an interesting and important provision
of the PATRIOT Act we are going to be dealing with today. When the
final draft of the PATRIOT Act reauthorization was introduced in the
Judiciary Committee the night before the committee acted on it, for the
first time a proposed three-part test was inserted into the bill--a
test for determining whether a section 215 order is relevant to a
terrorism investigation. There has been a lot of debate about these
section 215 orders, but these are critical to obtain records that might
help in the investigation of a potential terrorist.
Several of us expressed reservations about this three-part test and
whether it would impede the use of these section 215 warrants and
impede important investigations and thought it required further study.
Well, during the next weeks and months, we became persuaded
essentially that this three-part test would simply either make
impossible or certainly delay needed investigations and, therefore,
should not be enacted. It raised more questions than it answered,
complicated this investigative tool that was being used, after all, at
the very preliminary stages of an investigation--not the stage at which
you ought to be proving probable cause to introduce evidence into the
trial.
Well, the test remains in the conference report, but with changed
language. I think it is much better in its current form. The form of
the test remains in the conference report, but investigators are no
longer required to use that test. Instead, they are simply permitted to
use that test to obtain a presumption that a 215 order is relevant to a
terror investigation, which is fine.
Usually, when we create a legal presumption that a standard has been
met, it is easier to satisfy the presumption than it is to satisfy the
underlying legal test. I do not believe that is the case here.
Relevance is a simple and well established standard of law. Indeed, it
is the standard for obtaining every other kind of subpoena, including
administrative subpoenas, grand jury subpoenas, and civil discovery
orders.
So I cannot imagine that investigators will ever bother using the
complicated three-part test in order to get a presumption when they can
simply plead relevance and that will suffice for their investigation. I
might be wrong, and they might find this test useful. It is there
should they decide they can use it. But I am pleased to see the
conference report is not impeding investigations by mandating the use
of that test.
We are not betting important antiterror investigations on the issue,
I guess, is another way to say it. I think it would have been clearer
just to eliminate the test, but it does not--other than, in my view,
cluttering up section 215 of the PATRIOT Act because it is not
mandatory, I do not think it is going to cause any harm. Investigators
are not going to be impeded in their investigations because of it. I
think that is an important change we made.
The conference report also does something that is important for
States, like my own State of Arizona, that have attempted to improve
the ability to prosecute and defend against certain kinds of serious
crimes. In the 1996 Antiterrorism and Effective Death Penalty Act,
Congress made an offer to the States in effect saying: If you will
provide qualified counsel, lawyers, in capital cases to the defendants
in those cases during the stage of the case after conviction but during
appeal--it is the so-called postconviction review stage of litigation--
then the Federal Government would apply a streamlined and expedited
procedure to review the habeas corpus petitions that are normally filed
during that period of time from the conviction in the State court.
The Federal courts would be required to abide by timelines in ruling
on these cases, and they would be barred from staying Federal petitions
to allow further exhaustion or broadly exempting claims from procedural
default requirements on the grounds of the perceived inadequacy or lack
of independence of the State's procedural rules. The bottom line is
that if the defendants are represented by good counsel, by good
lawyers, then they should be able to comply with the provisions of the
law and not plead, in effect, they have to delay the law as they are
having their appeals reviewed.
Arizona did its part to comply with this statute. It enacted a system
to provide qualified counsel to capital defendants on State
postconviction review. It spent a lot of money doing it. But to date,
it has not received the benefits of the system. It is because the
decision about whether a State is entitled to the benefits of this
chapter 154 relief--including the time deadlines--is made by the same
Ninth Circuit Court of Appeals that would be bound by those deadlines.
And it has repeatedly refused to extend to Arizona the benefits of the
1996 law's special habeas chapter. By the way, it has also been very
slow in many of these cases, and that has been a real problem.
The good thing about today's conference report is that it includes a
provision that would shift the decision of whether a State is eligible
for this expedited review of capital cases away from the regional
courts of appeals to the U.S. Attorney General, with a review of his
decision in the U.S. Circuit Court for the District of Columbia. That
court hears no habeas cases; therefore, it has no conflict of interest
as the other circuit courts would. This will allow the Federal
Government to keep its end of the bargain that it made with the States
back in 1996 and will allow States like Arizona to finally take
advantage of the streamlined and expedited procedures to which it is
entitled.
I will conclude in this fashion. I think that by what I have just
said it is clear there are a variety of important provisions in this
conference report, this PATRIOT law we are reauthorizing. In some cases
we are saying this is now going to be permanent law. We do not need to
come back and reauthorize it every 4 years. In other cases, we are
saying there are important provisions of other laws that need to be put
in the PATRIOT Act and made permanent law. And we have done that. In
other cases, as I mentioned, we wrote particular provisions into the
PATRIOT Act, and it is important that we reauthorize those provisions.
And there were other provisions, in addition to pen registers and trap
and trace that I mentioned before, as well as the material support,
which were parts of the original act.
We established several crimes as part of the PATRIOT Act that would
serve as predicate crimes for further investigation, and these were
very important because in the early stages of an investigation into a
terrorist you may not have all of the scope of the activity of this
individual well in mind. You may know he has been guilty of what you
think of one particular crime, but you need to be able to use that as a
predicate to expand your investigation into other things he may have
done.
So, for example, we establish that violations of the Federal
terrorism statutes could serve as a predicate offense allowing the
Department of Justice to apply to courts for authorization to intercept
wire or oral communications pursuant to title III when investigating
such offenses. We establish that the felony violations of the Federal
computer crimes statutes, the so-called hacking statutes, might serve
as a predicate offense, allowing the Department of Justice to apply to
courts for authorization to intercept wire or oral communications
pursuant to title III when investigating such offenses.
We provide for the detention, for up to 7 days, of aliens the
Attorney General has reasonable grounds to believe were engaged in
conduct that threatened the security of the United States or aliens who
are inadmissible; that is to say, they are not supposed to be coming
into the United States or are deportable from the United States on the
grounds of terrorism, espionage, sabotage, or sedition.
[[Page S1607]]
There are a variety of other provisions that are included in the
PATRIOT Act. The key thing to remember here is, as I said before, our
law enforcement and intelligence officials need to have adequate tools
to fight terrorism because we provide those tools when we send the
military into harm's way. We have an obligation to do that. And they
fight important fronts in the war on terror. But so much of this war on
terror relates to intelligence gathering and law enforcement activity,
investigating potential crimes of these individuals. We have to give
them the tools they need to fight these terrorists.
The PATRIOT Act does that. It is one of our tools. The FISA law is
another one of those tools, the Surveillance Act. The Foreign
Intelligence Surveillance Act is what FISA stands for. We have
activities such as the NSA surveillance that is another important tool
that deals with al-Qaida terrorists who are calling into or out of a
foreign country. There are other mechanisms we are using to fight the
terrorists.
But one of the bedrock laws now that we use is the PATRIOT Act. That
law passed not long after 9/11 because we understood this world had
changed and that it was time to apply to terrorism many of the same
kinds of techniques in law enforcement authorities that we already
deemed very useful in investigating other kinds of crimes. Our idea
was, if it is good enough to investigate money laundering or drug
dealing, for example, we sure ought to use those same kinds of
techniques to fight terrorists. We have done that.
Today, actually, is a very important day because many of the
provisions of the PATRIOT Act go into permanent law. Others are
reauthorized for 4 more years. They provide critical support to the
people we want to protect us in this war on terror. I am delighted we
will be adopting the PATRIOT Act conference report today. My only
regret, as I said, is we could not have done it before now. But we can
at least celebrate the fact that the Senate has done its duty for the
American people to help make them secure in the future.
The PRESIDING OFFICER (Mr. Isakson). The majority leader is
recognized.
Appointment of Pension Conferees
Mr. FRIST. Mr. President, this morning the minority leader came to
the floor to once again call into question our good faith efforts on
the pensions bill. He now claims our longstanding offer of a 7-5 ratio
on the conference committee ``looks suspicious.'' I can't help but feel
that what is beginning to look suspicious is this continuing pattern of
obstruction on ground that seems to be ever shifting.
We originally considered proposing a 5-3 ratio but, to accommodate
his caucus, we ultimately offered a 7-5 ratio. After a 2-month delay,
this was rejected. The Democratic leader was unable to make a decision
among members of his caucus. I understand those challenges, but that is
what leadership is all about. Now he wishes to further delay with an
arbitrary dispute over the ratio of conferees and this new, equally
disingenuous charge of ``fixing the jury,'' which is absurd.
As the minority leader well knows, I have been working for years to
fix the pensions problem. The American people deserve it. People don't
understand why these games are being played.
The clock is ticking. People's lives are at stake. The first quarter
of the physical year ends on March 31, 31 days from now. Within 2 weeks
of that happening, companies have to make contributions to their
pension plans. The pensions of millions of hard-working Americans are
at stake. That is why these games don't make sense.
We have two committees with an equal stake in this bill. They should
have an equal number of conferees on the committee. The conference
committee should fairly represent the two committees of jurisdiction.
The minority leader knows his proposals won't allow for that. I am for
a fair conference but, equally importantly, I am for getting to
conference so that we can address these challenges. The American people
are waiting.
I know the Democratic leader says he wants to move forward as well.
But remember, we passed this bill in November of last year, and we are
still trying to do something very simple; that is, to get to conference
so that we can pass the legislation.
I am baffled by the minority leader's inability to decide which five
Senators from his caucus could join with our seven Senators so that we
can appoint a conference and do the Nation's business. I am equally
confused about why, in refusing to make that decision, he instead feels
that he should decide on his own, unilaterally, the ratio of conferees
with no regard for treating the two committees of jurisdiction fairly.
If anyone is trying to fix the jury, it appears to be the minority
leader by having one committee with more representatives than the
other. We go back and forth every day, and that clock is ticking.
The airline provisions of the bill are necessary to keep additional
pension obligations from being terminated and left at the doorstep of
the Pension Benefit Guaranty Corporation. As Chairman Grassley has
suggested, in remarks that I will include in the Record, if we cannot
make some progress shortly, we may need to look at pulling these
provisions out and moving them on some other vehicle. That should not
be necessary, but continued obstruction would leave us with no other
choice. We are simply running out of time.
I plead with the Democratic leader to put forth his five. We have
been ready for the last 2 months to put forth our 7 so we can get to
conference and provide answers and a resolution to what millions of
Americans are waiting for.
I ask unanimous consent to print in the Record the above-referenced
document.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Dow Jones Newswires]
U.S. Senator Grassley: Senator Reid Undermining Pension Talks
(By Rob Wells and John Godfrey)
Washington (Dow Jones).--A top U.S. Senate Republican on
Thursday accused Senate Minority Leader Harry Reid, D-Nev, of
undermining talks for a final pension overhaul bill, thereby
helping the bill's critics.
``It's playing right into the hands of Ford (F) and General
Motors (GM), because they negotiated benefits, both health
and savings, they can't keep their promise to,'' said Senate
Finance Chairman Charles Grassley, R-Iowa, at the National
Summit on Retirement Savings, an industry and government
seminar.
He said these companies ``don't want these reforms because
they're going to have to pay up'' through higher pension
contributions.
The bill would change pension funding rules and increase
premiums paid by companies to the Pension Benefit Guaranty
Corporation. The measure has divided business and labor
groups, many of whom argue that it would be too strict.
The Senate has been attempting to name negotiators since
December to a House and Senate conference to write a final
pension overhaul bill.
Grassley accused Reid of delaying final pension talks by
not formally naming Democratic negotiators. Part of the
delay, however, stemmed from internal Republican
disagreements over who would lead negotiations.
Reid and Senate Majority Leader Bill Frist, R-Tenn., have
been in a standoff over the number of Democrats who will be
part of the talks.
Grassley, departing from his prepared remarks, sharply
criticized Reid for the delay. ``They're being held up
because one person in U.S. Senate can't make up his mind
which two or three Democrats ought to be on a conference
committee,'' Grassley said.
If Congress fails to act on the pension bill, companies
will have to begin using the relatively pessimistic benchmark
of the 30-year Treasury bond in pension calculations. The 30-
year bond rate would begin to apply after April 15, although
higher payments wouldn't occur until January 2007. Currently
companies are using a blend of corporate bond rates in such
calculations.
The airline industry also has a major stake in the bill
since the Senate version would give a special break from
pension funding rules for underfunded airline pension plans.
Grassley and other bill advocates say it's vital Congress
completes work on the bill by the April 15 deadline.
Without action by then, ``it's putting into jeopardy
airlines being able to fly'' Grassley said, which would
``ruin the economy if we don't get something done.''
Further delays may force negotiators to move pieces of the
bill, such as the airline provision, in separate tax
legislation to meet the April 15 deadline, he said.
A telephone call to Reid's office wasn't immediately
returned.
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. DeMINT. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
[[Page S1608]]
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DeMINT. I ask unanimous consent to speak for 5 minutes as in
morning business and that this time be counted against the Republican
time in the debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Port Security
Mr. DeMINT. Mr. President, I have had a chance to listen to the
debate on the PATRIOT Act in my office. I had not planned to speak. But
hearing continued attacks on the President on security issues,
particularly port security, while some from the other side seem intent
on stopping one of the most important security pieces of legislation we
have, the PATRIOT Act, compelled me to come to the floor to straighten
out the facts.
It is important that we have an honest and fair debate. I appreciate
those on the other side who have participated in the debate in an
honest way. But I have heard enough of my colleagues from the other
side use information and perhaps take different positions than they did
only a year or so ago. I am compelled to point some of these things
out.
I will give one example. This week in a Commerce Committee hearing,
we were talking about port security. Senator Boxer said:
Our ports are a soft target. Al Qaida told us that when we
found that out through [their] documents. . . . . So you take
the Dubai situation plus our lack of action on security. . .
. . And I'm going to oppose this deal.
That is fair enough unless we put it in perspective. This week,
Senator Boxer actually voted to filibuster the PATRIOT Act, which is
dedicated in large part to security in our ports. An entire title of
the PATRIOT Act is focused on port security. Originally introduced as
the bipartisan Reducing Crime and Terrorism in America's Seaports Act
of 2005, title III strengthens criminal sanctions and takes a number of
steps to improve our Nation's ability to secure our ports and to thwart
terrorism. Yet Senator Boxer voted to filibuster the enactment of this
essential port security provision the day after lamenting the
vulnerability of American ports.
The truth is, to anyone who has watched this over time, very often
our Democratic colleagues, with all due respect, block the very thing
they blame Republicans for--in this case, blaming the President. Not
only did Senator Boxer vote to filibuster the PATRIOT Act, but after
the 9/11 attacks, Senator Boxer was one of four Democratic cosponsors
of a bill that would have specifically permitted noncitizens to serve
as airport security screeners. Senator Boxer cosponsored legislation to
allow noncitizens to do for air travel what essentially the Coast Guard
does for port security. Now she wants to block foreign companies from
using American workers to manage our port terminals. It is difficult to
reconcile the two positions.
Republicans want a fair and nonpartisan 45-day security review and a
good but honest debate. It is not fair or honest to take a position
this week that was very different than one that had been taken before.
To Republicans, port security is not a passing political issue but a
cornerstone of our commitment to protect the American people. That is
why Republicans are working to pass the PATRIOT Act. We demand a fair
and impartial 45-day security review of the proposed acquisition of the
P&O Navigation Company of Britain by the Dubai Ports World.
I don't mean to be unfair to Senator Boxer, but it is an example of
folks maybe taking a different position, trying to blame the President
for something, in fact, that they have blocked in the past.
This is from an editorial in the Los Angeles Times, February 26:
. . . Now there is a Republican in the White House, and of
all the grandstanding surrounding the Dubai Ports World deal,
none tops Boxer's performance. She said last week that she
would support legislation preventing any foreign firm, state-
owned or not, from buying port operations. Memo to Boxer: 13
of the 14 container terminals at the ports of [Los Angeles]
and Long Beach, the biggest port complex in the United
States, are run by foreign-owned companies. She later told
The Times that she meant such deals should get greater
scrutiny, not be banned. Still, this is the sort of proposal
one would expect from a Senator from a landlocked state like
Vermont, not one where international trade plays a vital role
in the economy.
The article goes on to talk about the 180-degree switch of opinions.
Again, I don't mean to pick on one Senator. My plea to the other side,
and my side as well, as we look at this vital issue of security in our
country, don't look for political opportunities to blame one side for
something we actually created ourselves. On the security issue, there
is no better example of colleagues who have blocked security in many
ways and now are attempting to suggest the President is not strong on
security. President George Bush is the world leader in the war on
terror and has probably done more to secure the borders of our homeland
than any President or any Member of Congress. It is time we give him
that respect.
Mr. President, I thank you for the time, and I yield the floor.
The PRESIDING OFFICER. The minority leader is recognized.
Mr. REID. Mr. President, yesterday, the Senate passed a bill
negotiated by the junior Senator from New Hampshire, Mr. Sununu, to
strengthen civil liberties protections in the PATRIOT Act. In light of
the improvements contained in the Sununu bill, I will now vote in favor
of the pending conference report.
As I have emphasized many times, Democrats support the basic
authorities contained in the PATRIOT Act. We voted for the original act
in 2001. We unanimously supported the reauthorization bill that passed
the Senate last summer. In recent months, we have been vigilant to
ensure that no provision of the act would expire during ongoing
negotiations over a long-term extension of the law. But our support for
the PATRIOT Act doesn't mean a blank check for the President.
Last December, a bipartisan group of Senators joined together to
insist that the reauthorization bill which had been returned from the
House-Senate conference be improved. We defeated that conference
report, we did it purposefully, and it was done on a bipartisan basis.
I note that some of my ``admirers''--I use that caustically--have run
ads in the State of Nevada trying to embarrass me, saying that I and
the Democrats are not for the PATRIOT Act. That was raw politics at its
worst. What we tried to do, on a bipartisan basis, was to have a better
conference report. That is what is happening. Some would say it has not
been improved enough. I could argue that, but it has been improved.
Republicans and Democrats declared back then that Congress can
provide the Government with the powers it needs to protect Americans
and, at the same time, ensure sufficient checks and oversight to
prevent abuses of these powers. Security and liberty are neither
contradictory nor mutually exclusive.
Our insistence that the PATRIOT Act be improved has borne fruit. We
stood up to the White House to demand a more balanced approach to
antiterror tactics, and we have succeeded. Some say we didn't improve
it enough, but there is no question that we improved it. Thanks to the
courageous stand of Senator Sununu and a handful of other Republicans,
along with the longstanding efforts of Chairman Specter, Senator Leahy,
and other Democrats on the Judiciary Committee, the Senate will soon
pass a stronger, better PATRIOT Act.
The current bill is far from perfect. It falls short of the
unanimously supported Senate bill we passed last summer. I would have
preferred additional improvements in the conference report, but the
version of the PATRIOT Act we will soon reauthorize is a vast
improvement over the law we passed hastily in 2001.
For example, under the original PATRIOT Act, people who received a
Government request for business records under section 215 were barred
from discussing the request with anyone--their wives, sons, daughters,
business partners--no one. But now, for the first time, recipients of
such a gag order will be able to challenge it before a judge.
In addition, the new bill will restrict Government access to library
records. The bill makes it clear that libraries operating in the
traditional role, including providing Internet access, are not subject
to national security letters.
[[Page S1609]]
Finally, under the Sununu bill we passed yesterday, individuals or
businesses that receive a national security letter will not be required
to tell the FBI the identity of a lawyer they may consult to obtain
advice or assistance. It seems so obvious that it is the right thing to
do, but we had to fight for that.
Even before the Sununu improvements, the conference report included a
number of crucial provisions to ensure congressional and public
oversight of the Government's expansive powers under the PATRIOT Act.
We insisted that the House accept 4-year sunsets instead of 7-year
sunsets on the most controversial provisions of the act. In the
original bill, we set sunsets. It is so important, as we look back and
recognize why we did that. It is so important that we did that. Because
of that, we were forced to improve this legislation. I again say that
maybe it is not to the satisfaction of some, but it is certainly
improved.
The conference report also requires extensive congressional public
reporting and mandates audits by an independent inspector general. That
wasn't there before.
I will continue to work for additional improvements in the act.
I wish to say at this time that Senator Russ Feingold is a person for
whom I have great admiration. We are so fortunate that he is a Senator.
Academically, no one in the Senate has a record that is superior to
his. He is a Rhodes scholar, someone who stands for principle. I
disagree with him on this legislation. I can support this legislation
not going with all of the improvements that he, as a matter
of principle, has caused the Senate to review.
I believe it is unfortunate that this good man, the Senator from
Wisconsin, was not able to offer even two amendments. We asked the
majority leader: How about two amendments? Don't fill the tree. He will
take 15 minutes on each amendment. We were turned down. That is why I
voted against cloture yesterday. That is a bad way, in my opinion, to
run this Senate.
So I want the record to be spread with my words that Russ Feingold is
a fine lawyer. I congratulate and applaud him for his work on this
issue and other issues.
I will continue to work with him to seek additional improvements to
the act. For example, I know he worked hard on an issue that is so
important. Let's go back to the Senate-passed version of section 215,
under which a Government request for medical records and other
sensitive personal information must have a more direct connection to a
suspected terrorist or spy.
Second, I remain extremely concerned about the lack of meaningful
checks on Government overuse or abuse of national security letters. The
Washington Post reported last November that the FBI issues more than
30,000 such letters in a year, with no judicial supervision. So we need
more oversight of the Government's power to issue these secret
subpoenas--30,000 of them. How many is that a day? How many is that a
week? How many is that a month? It is unfortunate that we were unable
to get ahold of this and change this.
Third, I still don't believe it was appropriate to include in the
conference report sections not included in either the House or Senate
bills limiting the right of habeas corpus in cases having nothing to do
with terrorism. I will oppose any further weakening of the great writ.
There is a hue and cry out there that we have to do something about
earmarks. What they always talk about are appropriations earmarks,
which include a fraction of a percentage of the spending of this
Government.
I do not back away or apologize for the earmarks I have placed in
appropriations bills. I have a responsibility. I know better than some
bureaucrat in Washington, DC, how the Forest Service should spend its
money on the forests in Nevada. I know better than some bureaucrat from
the Bureau of Land Management how money should be spent in Nevada. And
80 percent of the Federal lands controlled by the Bureau of Land
Management are in Nevada. I know better than some bureaucrat in
Washington, DC, how the money should be spent on roads and highways and
bridges and dams in my State.
I believe in the Constitution. I believe the Constitution sets forth
three separate but equal branches of Government, and by our folding on
this earmark procedure and not doing our jobs, we are caving in and not
following the Constitution. There are ways we can improve the way
earmarks are placed on bills, and I am happy to work on that. I have
worked with the distinguished ranking member of the Appropriations
Committee and his staff to make sure this earmarking legislation that
will be on the floor is not going to hurt what this body does. But my
point is that earmarking is more than the Appropriations Committee. Is
this an earmark that they stick in a conference report, where it is not
in the House or Senate bill, that changes one of the basic rights
Americans have guaranteed by our Constitution--a writ of habeas corpus?
Yes. It is wrong. So if you want something about earmarks, let's not
just focus on the Appropriations Committee.
I have talked about the flaws, and I am satisfied, in spite of them,
that the conference report, as improved by Senator Sununu, is a step in
the right direction and certainly better than the original PATRIOT Act.
Let me say a word about the relationship between the current debate
on the PATRIOT Act and the continuing controversy over unlawful
eavesdropping by the National Security Agency. On the same day we voted
on the PATRIOT Act conference report last December, when the conference
report wasn't allowed to go forward, the New York Times reported that
the President had authorized a secret program to eavesdrop on American
citizens without warrants required by the Foreign Intelligence
Surveillance Act. That story had a clear impact on the vote that day,
as it well should have. There was some question why we were even having
this protracted debate over the PATRIOT Act, since the President seemed
to believe he was free to ignore the laws we enact anyway. But, in
fact, no one is above the law--not even the President of the United
States. One lesson of the NSA spying scandal is that Congress must
stand up to the President and must insist on additional checks on the
powers exercised by the executive branch. That is what we are doing
today with this PATRIOT Act.
In addition to what we have here with the PATRIOT Act and NSA spying,
now we have this Dubai port security, I think, scandal, on which the
final decision was made by the Secretary of the Treasury, not the
Secretary of Homeland Security. Whenever this administration is faced
with a decision that affects the business community or the national
security, the homeland security of this country, they always go with
business.
Why wasn't the Secretary of Homeland Security the one who signed off
on that? These companies control the perimeters of these facilities;
they decide who does the background checks. The debate over the PATRIOT
Act and over NSA wiretapping and the Dubai port situation is all about
checks and balances. That is what this is about. They go to the heart
of our system of separation of powers.
Today, we give the Government the tools it needs to help protect our
national security, while placing sensible checks on the arbitrary
exercise of Executive power.
So today, when this bill passes, I hope everybody will understand
that I am saying that I am voting for this conference report because I
think it improves the original PATRIOT Act, not because it is perfect.
It is far from perfect.
I hope this administration--even though the President is in faraway
India--gets the word that what is going on in this country with what I
believe are constitutional violations is inappropriate. We need to get
back to doing what is right for this country, following the
Constitution and reestablishing the legislative branch of Government as
a separate and equal branch of Government.
Mr. BYRD. Mr. President, how long am I recognized for?
The PRESIDING OFFICER (Mr. Vitter). The Senator from West Virginia is
recognized for up to 35 minutes.
Mr. BYRD. I thank the Chair.
[[Page S1610]]
(The remarks of Mr. Byrd pertaining to the introduction of S. 2362
are printed in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
prescribed PSE
Mr. TALENT. Mr. President, I rise today to engage the distinguished
chairman of the Judiciary Committee, Senator Specter, in a colloquy
regarding the intent of the Combat Methamphetamine Act of 2005.
Section 701 of the PATRIOT Act of 2005 establishes restrictions on
the sales of precursor chemicals used to manufacture methamphetamine.
As you know, the methamphetamine abuse and trafficking problem is
growing in our country, and this legislation will help to combat the
epidemic.
The methamphetamine control provisions of the act are intended to
address those precursor chemicals sold without a prescription.
I know that Chairman Specter and I agree that exempting
pseudoephedrine products provided via a legitimate prescription is
critical. Physicians and other health care providers sometimes
prescribe pseudoephedrine products in amounts that could violate the
daily and monthly limits included in this legislation.
Patients who need more pseudoephedrine than the law would allow need
the option of getting pseudoephedrine under a prescription, and Senator
Specter and I agree that the methamphetamine provisions should not
impede the care of legitimate patients. Our new requirements focus on
products purchased outside the current prescription process. We are
seeking to stop the bad actors from manufacturing and trafficking
methamphetamine and have no desire to prevent proper patient care. Many
States that have enacted laws to combat the methamphetamine epidemic
have also included this type of exemption. It just makes sense.
Mr. SPECTER. Mr. President, I would say to my colleague from Missouri
that physicians should not be forced to change what are common and
appropriate prescribing patterns in an effort to stop the manufacturing
and trafficking of methamphetamine.
The Senator from Missouri is correct. The Combat Methamphetamine Act
provisions in the PATRIOT Act are intended to address over-the-counter
sales, not pseudoephedrine products provided under a valid
prescription. It is my expectation that these new restrictions apply
only to pseudoephedrine products provided to consumers without a
prescription.
Mr. TALENT. I thank the distinguished chairman for this
clarification.
Mr. KERRY. Mr. President, over the course of this week, the Senate
has had a series of votes on the PATRIOT Act conference report as well
as on a bill amending the conference report introduced by Senators
Sununu, Craig, Murkowski, and Hagel.
Last December, I voted against cloture on the PATRIOT Act
reauthorization conference report. I did not cast that vote because I
oppose reauthorizing the PATRIOT Act--I supported the PATRIOT Act then
just as I do now. I voted against cloture on the conference report
because I believed that it did not adequately protect our civil rights
and liberties. Supporters of the conference report believed that you
had to choose between two extremes: taking a tough stand on terror and
protecting our fundamental constitutional rights. I thought you could
accomplish both at the same time.
On February 28, 2006, I voted against cloture on the Sununu
compromise bill, S. 2271, vote No. 22, because of procedural measures
taken by the majority to prevent Senator Feingold--or any other
Senator--from offering amendments. Senator Feingold's four proposed
amendments would have improved the Sununu compromise and addressed more
of the concerns I had with the conference report. They would have, No.
1, ensured that section 215 orders to produce sensitive library,
medical, and other business records would be limited to individuals who
had some connection to terrorism; No. 2, ensured that judicial review
of section 215 gag orders and National Security Letter, NSL, gag orders
is meaningful; No. 3, sunsetted the NSL authorities after 4 years; and
No. 4, required notification of sneak-and-peek search warrants within 7
days of the search rather than within 30 days. I believe that each of
these amendments would have improved both the Sununu compromise bill
and the conference report. Regardless of whether my colleagues agree
with me on that, I believe the Senate should have been given the
opportunity to vote on them.
On March 1, 2006, the Senate conducted a series of votes, both
procedural and substantive on the Sununu compromise bill and the
PATRIOT Act conference report. I voted to support the Sununu
compromise. I also voted to proceed to the motion to reconsider the
conference report, to proceed to the conference report, and to invoke
cloture on the conference report because, in my view, the Sununu
compromise and the conference report come as a package deal. I support
the two taken together, and for that reason, I also voted for the
conference report today.
I support the Sununu compromise bill because it makes some important
improvements to the PATRIOT Act. First, it allows judicial review of a
section 215 nondisclosure order 1 year after its receipt. Section 215
of the PATRIOT Act allows the Government to obtain business records,
including library, medical, and gun records among other things. Under
the conference report, recipients of these section 215 orders were
subject to an automatic permanent nondisclosure order which would have
prevented them from bringing any court challenge. Under the compromise,
a section 215 nondisclosure order is now subject to judicial review.
Second, the conference report would have required recipients of
National Security Letters, NSL, to identify their attorneys to the FBI.
NSLs allow the Government to obtain, without a warrant, subscriber
records and other data from telephone companies and Internet providers.
The compromise removes that requirement so that recipients of NSL
orders can seek legal advice without having to inform the FBI.
Third, the compromise clarifies that the Government cannot issue NSLs
to libraries unless the libraries provide ``electronic communications
services'' as defined by the statute. Thus, libraries functioning in
their traditional roles, including providing Internet access, are not
covered.
Even though this legislation does not address all of my concerns with
the conference report, these compromise provisions are steps in the
right direction and will be important components of the PATRIOT Act.
I am proud to support this legislative package and am pleased we have
reauthorized and improved the PATRIOT Act. I believe there is still
more work to be done and will work with my colleagues; such as Senator
Feingold and Senator Specter, on further improvements. For example, in
a perfect world the PATRIOT Act would provide for more meaningful
judicial review of section 215 gag orders as well as NSL gag orders.
There is no reason to have a conclusive presumption against
recipients--one that can only be overcome by a showing of Government
bad faith. Nor is there any reason to prohibit judicial review of those
gag orders until a full year has passed. They should be immediately
reviewable, and, if there are any presumptions, they should be in favor
of the privacy rights being invaded rather than the Government doing
the invading.
In a perfect world, the Patriot Act would require the subjects of
section 215 business record disclosures to have some link to suspected
terrorists. As I mentioned earlier, section 215 is expansive, and it
allows the Government to obtain very sensitive, personal records.
Simply requiring those records to be relevant to an authorized
intelligence investigation, as the conference report does, is simply
not enough. This standard will not prevent Government fishing
expeditions.
And, in a perfect world, the PATRIOT Act would have required the
Government to notify victims of sneak-and-peek searches--unannounced
and secret entries into the homes of Americans--within 7 days as the
original Senate bill did. The 30- to 60-day timeframe is simply too
long. People have a right to know when the Government has been in their
house, searching through their things.
Thus, I understand why some of my colleagues are disappointed with
the compromise. They say that it does not go as far as the original
Senate bill which was passed by unanimous consent, and they are right.
But the fact is
[[Page S1611]]
that the compromise does improve the original conference report. I
believe the compromise was the product of good faith negotiations. It
is not a perfect bill, but it is a step in the right direction. And I
will continue to work with my colleagues so that we can create a more
even balanced PATRIOT Act.
Mr. ROCKEFELLER. Mr. President, I rise to speak in favor of the
conference report on the PATRIOT Act Improvement and Reauthorization
Act of 2005 and the accompanying measure to amend the Reauthorization
Act. I commend the work of Senator Sununu and others in addressing
several flaws in the measure reported by the conference in December.
And I congratulate the hard work of Senators Specter and Leahy in
leading the Senate's efforts to extend and improve the PATRIOT Act.
I remain disappointed, however, in the process followed by the House-
Senate conference, which not only excluded Democratic Members from key
meetings and deliberations but also excluded the public. Sadly, the
deficient process of the PATRIOT Act conference is characteristic of
the manner in which too many conferences have been conducted in recent
years.
Nevertheless, overall, adoption of the conference report, along with
the accompanying improvements contained in the Sununu bill, will not
only extend the PATRIOT Act but make it a stronger, more balanced tool
in our fight against terrorists. I was one of the Senate's 10
conferees: 6 Republicans and 4 Democrats. We were appointed from the
leadership and ranks of the Senate Judiciary and Intelligence
Committees, the two committees with a direct responsibility for
reauthorizing the PATRIOT Act.
The Senate conferees were appointed on July 29, 2005, immediately
upon the Senate's passage by unanimous consent of the bill that had
been unanimously reported by the Senate Judiciary Committee. I had
expected that the conference with the House, which in July had passed a
different reauthorization bill, would begin promptly on the return of
the Congress at the beginning of this past September from last
session's August recess. In fact, the House did not name its conferees
until November 9.
The conference met the following day, on November 10, for its one and
only meeting. That meeting was devoted exclusively to 5-minute opening
statements. In my opening statement to the conference, I stressed the
importance of how we did our work. I urged that the conference proceed
openly, including by considering amendments in public session. I warned
that otherwise the Congress would risk losing an indispensable ally in
the long-term effort to defend the Nation; namely, a public that has
confidence in the necessity for and the balance of the PATRIOT Act.
Unfortunately, our opening statements turned out to be our closing
ones, because we never met again as a conference. The flawed process of
the conference produced a flawed result. Because it fell short of what
the conference could have achieved, I joined my fellow Senate
Democratic conferees in not signing the conference report. We then
joined a bipartisan coalition that opposed cutting off debate in
December and insisted that there be a further effort to improve the
bill. That additional time has been well spent.
From the outset of the PATRIOT Act reauthorization debate, there has
been neither division nor doubt in the Congress that we would unite in
extending the investigative and information sharing powers that were
enacted in the wake of September 11. Over this past year, as we have
debated the checks and balances that should be added or strengthened,
Republicans and Democrats alike have been prepared throughout to
achieve what we have now accomplished, the extension of essential
national security authorities.
In most cases, those authorities have been made permanent. For a few,
we have decided that a further review in 4 years is appropriate before
deciding whether to make these authorities permanent as well. The
PATRIOT Act reauthorization agreement now before us establishes or
augments some notable checks and balances. We have responded to the
concerns of librarians and booksellers by requiring high level F.B.I.
approval of applications for orders requiring the production of
records. And we also have required that any such applications to
librarians and booksellers be reported to the Congress. The holders of
other sensitive records B concerning firearm sales, tax returns,
education, and medical matters B also have enhanced protection.
The Reauthorization Act also places in the law provisions for the
judicial review of orders from the Foreign Intelligence Surveillance
Court for the production of records. Similarly, it also places
explicitly into law something that the courts have already begun to
require; namely, procedures for judicial review of national security
letters to businesses from the F.B.I. demanding that they produce
records for investigators.
I join others in the Senate and House in wishing that some of these
provisions had been written in a more balanced way. Specifically, I am
concerned that some of the new judicial review procedures tilt in a
one-sided manner toward the Government and may not give the individuals
and businesses who may seek relief a fair opportunity to make their
cases. If Congress promises citizens judicial review, it ought to
deliver fully on that promise. Some of those imbalances may have to be
addressed by the courts or in future legislation.
The additional time to reach a PATRIOT Act agreement also gave us the
opportunity to change other objectionable provisions of the original
conference report. The report had contained a requirement that the
recipients of orders for the production of documents from the Foreign
Intelligence Surveillance Court or by a national security letter advise
the F.B.I., on its request, of the name of any attorney they contacted.
This would have been the first time, to my knowledge, that Congress
had empowered the F.B.I. to demand that a citizen, who has been
presented with a demand by the Government, inform the F.B.I. that he or
she has spoken to an attorney and be required to give the F.B.I. the
lawyer's name. I found that this intrusive provision, which we were
told that the Department of Justice had insisted upon, to be
inconsistent with basic American values. I am especially gratified that
Senators Sununu, Craig, Murkowski, and Hagel were able to persuade the
White House to strike this misguided provision.
Congress has an abiding commitment to provide our law enforcement and
intelligence personnel with the tools and authorities they require to
protect America. The Foreign Intelligence Surveillance Act and the
PATRIOT Act are prime examples of that commitment. And it is a
commitment that is not just a one time thing. Congress has returned
repeatedly to these statutes to add new authorities or enhance existing
ones.
In that process, any of us, as individual legislators, may not
achieve all of what we want, but collectively we fulfill our oversight
responsibilities by inquiring, debating, voting, and conducting
oversight concerning the powerful tools that a President, whomever it
may be at the time, believes that our law enforcement and intelligence
officials need to protect America.
This process has not been followed, unfortunately, with respect to
the NSA warrantless surveillance program inside the United States
recently disclosed and acknowledged by the President. The
administration continues to withhold important facts about the NSA
program and, in turn, has prevented Congress from understanding the
program and evaluating whether it is both legally and operationally
sound. If a President refuses to deal with the Congress as a co-equal
branch of Government, then the Congress cannot fulfill its
responsibility on behalf of the people to ensure that the executive
branch is acting under the rule of law.
For the PATRIOT Act, this is not the end of the process. We have an
obligation to be vigilant in our oversight. And we will be returning to
the act no later than 4 years from now when the remaining sunsets
expire, in order to consider reauthorization legislation for those
authorities.
During this time, the Senate Select Committee on Intelligence, of
which I am vice chairman, will continue monitoring how the authorities
contained in the PATRIOT Act are used to ensure that we have struck the
proper balance
[[Page S1612]]
between empowering our counterterrorism efforts while not infringing
upon the civil liberties of Americans.
Mr. KENNEDY. Mr. President, for months, we have been ready to roll up
our sleeves and get back to work on the PATRIOT Act, but the White
House has continued to block bipartisan efforts to improve the original
bill and accept oversight of its intrusive surveillance programs.
Again, and again, the administration has refused to join in serious
negotiations with Republicans and Democrats on matters of national
security, including the National Security Agency's warrantless wiretaps
and the FBI's use of national security letters. The latest proposal
offers improvements and deserves to pass; however, it is unacceptable
and undemocratic that further amendments could not even be considered.
We need to implement these improvements quickly given the
administration's disregard of congressional oversight. The proposed
reauthorization bill requires public reports on the use of two of the
most controversial provisions: section 215 and national security
letters. It also requires the inspector general to audit their use, and
it mandates a report on any data-mining activities by the Justice
Department.
Americans deserve national security laws that protect both our
security and our constitutional rights, and more changes are clearly
needed. One of the most glaring omissions in the proposal is the
failure to include a 4-year sunset provision on national security
letters, even though it would be consistent with the new reporting and
auditing requirements that will take effect.
The latest changes provide some additional protection for libraries,
but these safeguards should apply to all of the means used by the
Government to obtain sensitive information, including financial
documents and library records. We also need a report on the
Government's use of computerized searches from all Federal agencies,
and we will continue to seek such a requirement as part of efforts
toward other reforms.
We have not yet achieved the 9/11 Commission's goal to maintain
governmental powers that enhance our national security while ensuring
adequate oversight over their use. With so much at stake, the
administration's refusal to work with Congress can only weaken our
national security and further undermine the public's trust in their
Government. So this battle will go on, and I regret we could not
accomplish more in this needed legislation.
Mr. BINGAMAN. Mr. President, I rise today to speak in opposition to
the PATRIOT Act conference report.
As I have stated in the past, I strongly support giving law
enforcement the tools they need to aggressively fight terrorism. But I
also believe that we must ensure that we adequately protect
constitutional rights and properly balance civil liberties with
national security concerns.
I support reauthorizing many of the expiring provisions of the
PATRIOT Act, but I believe we need to make some important changes to
ensure that Americans' civil liberties are protected. When the Senate
debated this issue last July, I supported the bipartisan compromise,
which unanimously passed the Senate, to reauthorize the expiring
provisions of the PATRIOT Act. Unfortunately, many of the improvements
that were made were later removed at the insistence of the White House
and the House of Representatives. I cannot in good conscience support a
reauthorization bill that is fundamentally flawed and lacks basic
safeguards with regard to the rights of Americans.
The final compromise that was worked out, including the conference
report and the bill offered by Senator Sununu, falls short in several
respects. First, it does not address the problems with section 215,
which allows the Government to obtain sensitive personal records, such
as library, medical, or business records, as long as the Government
submits a statement indicating that the documents are relevant to a
terrorism investigation. I, along with many other Senators, have
pressed to modify this standard to require that the Government show
that the documents sought are actually relevant to the activities of a
terrorism suspect or the activities of a person in contact with the
suspect.
It is reasonable to require that if the Government is going to look
at the private records of Americans that the Government demonstrate
that the request for records has some actual connection to a terrorist
and isn't just part of a fishing expedition. The final compromise does
not include any significant improvements with regard to the standard
for issuing section 215 orders.
The conference report also falls short with respect to section 215
gag orders. Under the PATRIOT Act, when a section 215 order is
issued,the receipt of an order, such as a library or doctor, is
automatically prohibited from disclosing that the FBI is seeking the
records. In addition, under current law there is no explicit right to
petition a court to modify or quash a gag order. The conference report
still provides for an automatic gag order and prohibits judicial
review, but specifies that a recipient of a section 215 gag order may
disclose its existence to an attorney to obtain legal advice.
Although the Sununu bill the Senate passed earlier this week as part
of the final compromise technically allows for judicial review of a
nondisclosure order and permits a recipient to challenge the gag order
before a FISA judge, this is merely an illusionary right and does not
provide any meaningful review. A recipient must wait 1 year to
challenge the gag order and the judge may overturn the order only if
there is no reason to believe the disclosure will endanger national
security. However, because the Attorney General may certify that the
disclosure may endanger national security and a judge must treat this
certification as conclusive unless the Government is found to be acting
in bad faith, it would be almost impossible to ever successfully
challenge a gag order.
I also have significant concerns with respect to national security
letters, or NSLs. National security letters are essentially formal
requests made by Federal intelligence investigators to communication
providers, financial institutions, and credit bureaus to provide
certain consumer information relating to a national security
investigation. The issuance of an NSL does not require any judicial
oversight. The laws explicitly permitting NSLs were meant to prevent
financial institutions from being held liable for disclosing private
financial information in contravention of Federal privacy laws. NSLs do
not require any court approval, and since 9/11 the Government has
increasingly relied on them to obtain information as part of terrorism
investigations. Like recipients of section 215 orders, NSL recipients
are subject to an automatic gag order. At least two Federal district
courts have found that NSL gag order restrictions and the lack of
judicial review amount to constitutional violations under the fourth
and first amendments.
The conference report attempts to address constitutional problems
regarding NSLs by authorizing judicial review of NSLs and providing the
ability to challenge a nondisclosure order. However, while recipients
are technically given the ability to go to court, the right is
essentially meaningless. The conference report does allow an NSL
recipient to challenge the validity of an NSL in a district court, but
it also stipulates that all of the Government's submissions are secret
and cannot be shared with the person challenging the order. In
addition, although the gag order can be challenged in court after 1
year, like section 215 challenges, the only way to prevail is to
demonstrate that the Government is acting in bad faith because the
Government's certification that disclosure would harm national security
is conclusive.
The final compromise included in the Sununu bill does not address the
significant problems with the NSL process, but rather makes some minor
improvements with regard to NSLs. Under the compromise, it would remove
the requirement that a person inform the FBI of the identity of an
attorney providing advice to a NSL receipt. The compromise also
clarifies that libraries are not subject to NSLs. Libraries, however,
would remain subject to section 215. I believe the compromise fails to
provide meaningful judicial review of NSL orders.
Finally, I also believe we missed an important opportunity to address
the so called sneak-and-peek provision, which allows the Government to
search
[[Page S1613]]
homes without notifying individuals of the search for an extended
period of time after the search.
Many of my colleagues have come to the Senate floor and stated that
they share the same concerns that I do with regard to the shortcomings
of this current compromise. Senator Sununu, who has been instrumental
in negotiating this compromise with the White House, and Senator
Specter, the chairman of the Senate Judiciary Committee, have indicated
their intention to push legislation aimed at modifying the PATRIOT Act
in a manner consistent with the bipartisan bill that the Senate
unanimously passed in July.
Although I support these efforts, and I intend to support legislation
that would make these modifications, I am under no illusion that the
Senate will take up any of these bills in the near future. Having just
finished debate on the PATRIOT Act, I do not believe that Congress
would have much of an appetite to take up this issue again. We had our
opportunity, and, unfortunately, we missed it.
The changes that I would like to see made have the support of the
majority of Senators--indeed, they were included in the bill that
unanimously passed the Senate. However, because the majority leader
knew that these sensible changes would garner wide support, he used
procedural maneuvers to prevent any Senator from offering an amendment
to fix the bill. Had these amendments been adopted, which I think it is
fairly clear they would have, I would have voted for the conference
report without hesitation.
While I recognize that this bill will make some slight improvements
with respect to the PATRIOT Act, we have missed a critical opportunity
to address the primary issues that have concerned the American public.
As I have discussed, the Government can still access the library
records and medical records of Americans without having to show that
the documents sought have some connection to a suspected terrorist or
the activities of a terrorist. The conference report simply failed to
address the core shortcomings of some of the provisions in the PATRIOT
Act.
I supported the improvements in the Sununu bill, but the analogy I
would use is this: If you need to fix the broken windows on your house
and the repairman comes along and paints your house instead--has your
house been improved? I would say yes, but your windows are still
broken. It is time for Congress to address the primary problems with
the PATRIOT Act, and it is my hope that we can eventually enact
commonsense reforms that enable the Government to fight terrorism in a
manner consistent with our Nation's historic commitment to upholding
basic civil liberties. I truly believe that the American people expect
more of Congress with regard to the approach we have taken in ensuring
our national security while at the same time protecting the liberties
of Americans.
Mr. SALAZAR. Mr. President, I discuss the pending reauthorization of
the USA PATRIOT Act.
We are near the end of what has been a very long process. For the
past year, Congress has grappled with the need to renew a handful of
provisions of the PATRIOT Act. As my colleagues know well, this
legislation has embodied the debate over how to balance the needs of
law enforcement in the war on terrorism and the paramount importance of
protecting Americans' civil liberties.
The greatest Americans have always understood our shared
responsibility as citizens of this great country to ensure that we get
this balance right. And many times over the course of the debate about
the PATRIOT Act, I have thought of Benjamin Franklin's words, ``They
that can give up essential liberty to obtain a little temporary safety
deserve neither liberty nor safety.'' I have thought about how Daniel
Webster reminded us that ``God grants liberty only to those who love
it, and are always ready to guard and defend it.'' I believe that it is
worth taking pains to be sure that we produce the very best balance,
and the very best legislation, we can.
Last week, several Senators with whom I have worked closely over the
past year announced that they had reached an agreement with the White
House on a proposal to renew these controversial provisions.
Let me say at the outset that I do not believe this agreement is by
any means perfect. My colleagues who were involved in negotiating this
compromise would be the first to agree with me on that point.
But it does contain a number of critical improvements over the
original law. Our ultimate goal was to place reasonable checks on the
law enforcement powers provided by the original PATRIOT Act. Although
it is not as strong in some areas as I would prefer, the legislation
today accomplishes that goal.
This proposal would produce a PATRIOT Act that includes a number of
specific improvements over the law that was passed 4 years ago.
Section 215 of the original PATRIOT Act allowed the government to
obtain business, library, and a whole host of other personal records
simply by claiming the records were related to a terrorism
investigation. The current proposal provides greater protection for the
most sensitive records, by requiring senior level FBI-approval for
orders related to library, book, education, gun, medical or tax
records, and by limiting the retention and dissemination of information
regarding Americans.
The original law did not provide for judicial review of Section 215
orders, National Security Letters, or for the accompanying gag orders.
The current proposal does.
The original law did not allow the recipient of a Section 215 order
or a National Security Letter to consult with an attorney. The current
proposal does.
The original law allowed delayed notification of property searches--
so-called ``sneak-and-peek'' searches--for undefined ``reasonable''
periods. The current proposal establishes hard limits on those delays,
while continuing to allow extensions when they are warranted.
The original law allowed the government to target libraries with
National Security Letters. The legislation exempts libraries from NSLs
unless they meet the statutory definition of an Electronic
Communications Service Provider.
The original law allowed the use of ``John Doe'' roving wiretaps,
which don't specify the target or the phone or computer. The current
proposal imposes limits on the use of such wiretaps.
Finally, the current proposal once again sunsets the Act's most
controversial provisions--Section 215 and roving wiretaps--in 4 years,
increases public reporting requirements about the use of the powers
authorized by the Act, and requires the Inspector General in the
Department of Justice to audit the use of Section 215 and National
Security Letters.
These safeguards are not simply cosmetic; they make meaningful
improvements to the original law, and will go a long way toward
protecting Americans' rights and freedoms.
In spite of these safeguards, the proposal before us is not perfect.
I would have preferred a stronger standard for obtaining a search order
under Section 215. I would have preferred that the expanded authority
to issue National Security Letters be sunset. But we will have the
opportunity to review these provisions--both with the sunsets contained
in this legislation and its increased reporting and auditing
requirements. I am committed to taking advantage of those provisions to
fight for strong and appropriate civil liberties safeguards, and I know
my colleagues are, too.
I joined with colleagues on both sides of the aisle to push for the
very best PATRIOT Act we could realistically get. We have come to the
point where the very best achievable version of the PATRIOT act is the
one before us.
I thank Senators Craig, Durbin, Sununu, Feingold, and Murkowski--my
fellow SAFE Act cosponsors--for all of their hard work over the past
several years on this critical issue. Without their efforts, we would
not have the civil liberties protections contained in this proposal. I
express my sincere gratitude for allowing me to become involved in
these efforts.
The vote on this agreement by no means marks the end of this process.
Whether or not we differ on the legislation before us, I know we will
continue to work together to provide law enforcement with the tools
they need to fight terrorists, and to protect and preserve Americans'
basic rights and freedoms.
[[Page S1614]]
That has been, and will continue to be, a fight that demands our most
vigorous efforts.
Mr. AKAKA. Mr. President, I oppose the conference report for H.R.
3199, the USA PATRIOT Improvement and Reauthorization Act of 2005. This
bill does not protect the cherished civil liberties and freedoms of the
American people.
I voted for the PATRIOT Act in 2001. I believed then, as I do now,
that we must give our Government the tools it needs to fight, detect,
and deter terrorist acts. While I had reservations about the PATRIOT
Act and the possibility that it would allow the Government to infringe
upon our privacy rights and civil liberties, I supported the bill since
the more controversial provisions were not made permanent. Granting the
Government this time-limited authority allowed Congress an opportunity
to review how these broad new grants of power were being used.
Unfortunately, the administration has been less than forthcoming in
disclosing how the PATRIOT Act has been used. According to the reports
we have received, the Government has used the PATRIOT Act to:
investigate and prosecute crimes that are not terrorism
offenses;
investigate individuals without having any cause to believe
the person is involved in terrorist activities; and
coerce Internet Service Providers, ISP, to turn over
information about email activity and web surfing while
preventing the ISP from disclosing this abuse to the public.
This information is disturbing and may be indicative of other
abuses that the Justice Department has not told us about.
Given these abuses, meaningful checks and balances on the
Government's authority to investigate Americans are essential. Last
July the Senate agreed by unanimous consent to reauthorize the PATRIOT
Act with substantially stronger protections in place. However, the
Republican-controlled House of Representatives objected to the Senate
bill and tried to pass a conference report lacking the protections that
the Senate insisted upon. Last month, a compromise bill was introduced,
S. 2271, the USA PATRIOT Act Additional Reauthorizing Amendments Act of
2006.
I voted for S. 2271 because it is an improvement over the PATRIOT
Act. Any improvement is good. However, S. 2271 does not go far enough
to correct the flaws in the PATRIOT Act and convince me that the
changes made to the underlying bill will preserve our civil liberties.
S. 2271 will make explicit the right to counsel and the right to
challenge in court an order from the Federal Bureau of Investigation,
FBI, to turn over records sought in an intelligence investigation,
called section 215 orders, but it does not correct the underlying
standard for issuing these orders. As such, the FBI, after going before
the Foreign Intelligence Surveillance Act, FISA, Court, can demand a
wide array of personal information--including medical, financial,
library, and bookstore and gun purchase records--about an individual
without any cause to believe the person is involved in terrorist
activities. S. 2271 does provide an express right to challenge the gag
order that accompanies a Section 215 order, but only after waiting a
year. However, if the Government certifies that the disclosure would
harm national security, the gag order cannot be lifted.
S. 2271 would also remove the conference report's language requiring
recipients of National Security Letters, NSLs, to inform the FBI of the
name of any attorney they consult about the demand for financial or
Internet records. NSLs can be issued without FISA Court review. Again
the bill still does not require that there be any connection between
the records sought by the FBI and a suspected foreign terrorist or
person in contact with such a target. This is especially troubling
since news reports show that 30,000 NSLs are issued by the Government
per year, a hundred-fold annual increase since the PATRIOT Act relaxed
requirements on the FBI's use of the power.
In 2003, the State legislature in my home State of Hawaii passed a
resolution reaffirming its commitment to civil liberties and called the
entire Hawaii congressional delegation to repeal any sections of the
PATRIOT Act that limit or violate fundamental rights and liberties
protected by the Constitution of the United States. In good conscience
I cannot vote to support the PATRIOT Act because I believe that it
allows the Government to infringe upon the rights and protections we
hold most dear.
I do not believe that the PATRIOT Act makes our Nation safer. It
makes our country weaker by eroding the very freedoms that define us.
As Thomas Jefferson said, ``The man who would choose security over
freedom deserves neither.'' I am afraid that by passing this
legislation today we will in fact have neither a more secure nation nor
the freedoms for which we are fighting.
Mrs. BOXER. Mr. President, I voted for the conference report because
on balance I believe it is necessary legislation to give our law
enforcement officials the tools they need to protect the American
people from terrorist attacks. Before the Patriot Act, various law
enforcement agencies did not have the ability to share information and
work together, and this was a vulnerability that needed to be fixed
after
9/11.
But this was a difficult decision. The bill had flaws, and two in
particular concern me the most the so-called ``sneak and peek'' and
library search provisions. Given my concerns about these provisions, I
voted for every opportunity to make further improvements to the bill.
But ultimately I believe that by voting for the conference report I
will be in a stronger position to help improve the Patriot Act in the
future, working with Judiciary Committee Chairman Specter, Ranking
Member Leahy and Senators Feingold and Sununu.
I also wanted to show my support for Senator Dianne Feinstein's anti-
methamphetamine bill, which was included in the conference report. Meth
has become a terrible scourge across our country and Senator
Feinstein's bill will go a long way to combat the spread of the drug by
restricting access to the ingredients used to make meth.
Mr. DURBIN. Mr. President, I am pleased that this conference
agreement includes important provisions which will provide critical new
tools and resources to help combat methamphetamine--one of the
deadliest, most powerfully addictive, and rapidly spreading drug
threats facing our country. Fighting meth requires a comprehensive
approach designed to assist States, local law enforcement and
prosecutors to crack down on cooks and traffickers of meth while
bolstering community education and awareness and expanding treatment
options for those addicted to this dangerous drug. As a cosponsor of
the underlying Combat Meth Act that was incorporated in this conference
agreement, I believe our action today is long overdue.
In my home State of Illinois, the meth scourge, especially in rural
areas, is egregious. Like many States, Illinois faces the daunting
challenge of trying to stay one step ahead of those who will go to any
length to procure the ingredients to make their drugs.
Just a year ago, a law took effect in Illinois which required placing
adult-strength cold tablets containing ephedrine or as their only
active ingredient behind store counters. The law also limited to two
packages per transaction the purchase of adult-strength cold tablets
containing ephedrine or pseudoephedrine as the sole active ingredient
and tablets with ephedrine or pseudoephedrine in combination with other
active ingredients. Additionally, the law required education and
training for retail sales personnel. At that time, the Illinois law was
among the toughest in the Nation and the strongest law among our border
States.
However, after that date, several States passed laws more restrictive
than the Illinois law, and reports from law enforcement authorities
indicated that meth makers from Missouri, Iowa, Kentucky and nearby
States were coming to Illinois to purchase products. Incidents such as
these led to enactment in November 2005 of the Methamphetamine
Precursor Control Act to impose stricter controls on the display and
sale of cold and sinus products containing meth's key ingredient
pseudoephedrine. The Attorney General of Illinois, Lisa Madigan, has
instituted and operates an aggressive anti-meth program in partnership
with law enforcement agencies and multi-country drug task forces.
The facts and figures about the devastating impact of meth in
Illinois underscore why our actions today to advance tough new
provisions and funding authorization are so vital.
[[Page S1615]]
The number of meth labs seized by law enforcement authorities in
Illinois grew from 24 labs in 1997, to 403 labs in 2000, to 1,099 labs
in 2003. Illinois State Police reported 962 lab seizures in 2004 and
nearly 1000 meth labs in 2005, more than double the number uncovered in
2000. Since 1997, the quantity of methamphetamines seized annually by
the ISP has increased over tenfold.
The number of methamphetamine submissions to the Illinois State
Police crime laboratories increased from 628 in 1998 to 3,250 in 2003--
more than a five-fold increase. The number of counties submitting meth
also increased during that period, from 73 in 1998 to 96 in 2003. In
2004, Byrne grants helped Illinois cops make almost 1,267 meth-related
arrests and seize approximately 348,923 grams of methamphetamines.
Local police departments depend on Byrne grant funding to participate
in meth task forces which tackle the meth problem by coordinating the
enforcement and interdiction efforts of local agencies within regional
areas. In fact, over 65 percent of Illinois's Byrne funding in 2004
went to local law enforcement agencies.
The Southern Illinois Enforcement Group pays almost half of its
agents with funding from Byrne grants. In 2004, this regional task
force was responsible for more than 27 percent of the State's meth lab
seizures. In a recent success of Byrne grant funding, Glen Carbon
Police coordinated with the Illinois State Police Meth Task Force to
discover the largest lab in the village's history. In this incident,
local authorities raided a meth lab that proved to be capable of
producing up to 6,000 grams of finished methamphetamine. Given examples
such as this, it is baffling that this administration seeks to
eliminate these critical funds in its budget proposal.
Methamphetamine is the only drug for which rural areas in Illinois
have higher rates of drug seizures and treatment admissions than urban
areas. Meth use, and the number of people behind bars for possessing,
making or selling it, has grown rapidly over the past decade in
Illinois. Just 5 years ago, 79 inmates entered State prisons on meth
offenses. Last year, that number was 541. In fiscal year 2003, rural
counties accounted for the vast majority, 79 percent, of persons
sentenced to prison for meth-related offenses. The number of treatment
admissions relating to methamphetamine abuse in Illinois jumped from 97
in 1994 to 3,582 in 2003.
Another disturbing implication is the effect on families. In 2004,
more than half of the children entering foster care in some areas of
rural southeastern Illinois were forced into the program because their
caretakers were meth abusers. Officials expect to encounter even more
children in homes where meth labs exist in coming years.
When specific regions were examined, findings indicate that rural
counties have experienced the greatest impact of methamphetamine. Rural
counties have been greatly impacted by the presence and growth of
methamphetamine, and are responsible for driving the escalating levels
of methamphetamine arrests, drug seizures and submissions, clandestine
lab seizures, methamphetamine commitments to Illinois Department of
Corrections and methamphetamine treatment admissions.
Illinois Criminal Justice Information Authority statistics show that
in 2003, the per capita occurrence of clandestine meth labs in rural
counties was over 1700 percent greater than it is in non-rural areas.
The per capita presence of meth in rural areas in over 500 percent
greater than it is in non-rural areas; more than 73 percent of meth
labs found in the State of Illinois were found in rural counties. Of
366 felony arrests in Edgar County, IL, 145 were for methamphetamine.
But urban areas are not immune to the meth crisis. The perception
that meth labs are a rural issue ended when a major meth lab was
discovered in a Chicago apartment building last September. The
challenge we face is overwhelming and our actions today signal a
commitment to support a concerted effort to tackle this urgent criminal
justice and public health and safety challenge.
I commend the tireless and tenacious leadership of Senators Talent
and Feinstein who have labored long and hard to secure passage of a
strong Combat Meth Act. I look forward to working with them to ensure
that full funding is provided to implement these new tools and provide
the needed resources to localities grappling with this drug crisis.
Mr. LEVIN. Mr President, when the PATRIOT Act reauthorization bill
left the Senate last July, we had a bill with provisions that protected
both our security and our liberty. What came back to the Senate from
the House-Senate conference committee was a bill that raised
significant concerns for Senators from both sides of the aisle. As a
result, the Senate did not vote to end debate in December, as Senators
wanted more time to address those concerns.
The PATRIOT Act conference report which is before us leaves major
problems unaddressed. Among the conference report's flaws: Section 215
of the PATRIOT Act permits the Government to seek court orders, to
compel the production of any tangible thing, including library, medical
and business records, in foreign intelligence investigations, including
records of people who are totally innocent even of any allegation of
impropriety. The conference report omits language in the Senate-passed
bill establishing a reasonable standard for the FBI to obtain these
sensitive records with Section 215 orders. And to make matters worse,
the conference report permits the FBI to include gag orders that
preclude the recipient from telling anyone they even received the
order. The conference report does not even permit recipients to
challenge those gag orders in court. Also, the conference report
requires recipients section 215 orders to tell the FBI, if asked, from
whom they have sought legal advice.
Since December, there have been a number of efforts to improve the
conference report. Unfortunately, those have met with limited success.
The Sununu bill, if it passes the House of Representatives, would make
only minimal improvements to the conference report that the Senate
considered last December.
The Sununu bill, if it passes the House, would eliminate the
requirement that recipients of 215 court orders tell the FBI, if asked,
whom they consulted for legal advice. This would be a worthwhile, if
minor, improvement. The Sununu bill also provides people the right to
challenge gag orders attached to so-called section 215 court orders.
But the benefit of that is offset by the fact that the bill severely
constrains the court's discretion to modify or set aside those gag
orders.
Some argue the conference report is an improvement over the original
PATRIOT Act. The bill before us does indeed correct some of the flaws
in the original PATRIOT Act. For example, the PATRIOT Act did not
require that a roving wiretap order identify a specific target--raising
concerns that it could authorize so-called John Doe roving wiretaps. I
am pleased that the conference accepted language that I proposed to
correct that flaw.
However, too many flaws remain, the most serious of which is the
standard of review section 215 court orders.
As I said earlier, section 215 of the PATRIOT Act permits the
Government to seek court orders, to compel the production of any
tangible thing, including library, medical and business records, in
foreign intelligence investigations. No problem there. However, under
section 215, the Government need not describe, much less identify, a
particular person to whom the records relate, even in general terms, as
linked to a terrorist groups or organization. I believe that we ought
to apply the same logic to section 215 orders that the conference
report applies to roving wiretaps. We ought to require that records
sought with section 215 orders have some connection to an alleged
terrorist or terrorist organization. Unfortunately, the standard in the
conference report does not include that. It fails to narrow the scope
of records that the Government can subpoena under section 215 to less
than the entire universe of records of people who, for instance,
patronize a library or visit a doctor's office. Instead, fishing
expeditions are authorized, which could result in invasions of the
privacy of large numbers of innocent Americans.
Let's assume the FBI has information that a person, whose identity is
not known to the FBI, is using computers at New York public libraries
to view certain Web sites.
[[Page S1616]]
The FBI only knows that the person has knowledge of the particular
Web sites. The person is not suspected of wrongdoing himself. The FBI
wants to find out the person's identity as part of a foreign
intelligence investigation into those Web sites. The agency believes
that they might be able to identify the person if they could review all
the computer user records held by public libraries in New York.
The conference report would presumably permit the FBI to obtain a
court order compelling the New York Public library to provide the
records of all their patrons. That is truly a fishing expedition. The
conference report would also allow the FBI to prohibit the library from
telling patrons that their names had been handed over to the FBI. While
the Sununu bill permits the library to challenge that prohibition in
court, it does not permit meaningful court review because, under its
terms, if the Attorney General or another specified senior official
certifies that disclosure may endanger national security or harm
diplomatic relations, the court must find bad faith on the part of the
Government in making such certification for the court to modify or set
aside the nondisclosure requirement. This virtually eliminates the
court's discretion.
Another example. Assume the FBI has information that a person, whose
identity is not known to the agency, is sending money to charitable
organizations overseas. They know from a credible source that the
person is being treated for HIV at a particular AIDS clinic in New York
that has 10,000 patients. The FBI wants to find out the person's
identity as part of a foreign intelligence investigation into links
between unspecified overseas charities and terrorist organizations. The
agency believes that they might be able to identify the person if they
could review the AIDS clinic's 10,000 patient files.
The conference report would permit the FBI to obtain a court order
compelling the AIDS clinic to provide the files of all of its patients.
The conference report would allow the FBI to prohibit the AIDS clinic
from telling its patients that their names had been handed over to the
FBI. While the Sununu bill permits the clinic to challenge that
prohibition in court, as I discussed earlier, it does not permit
meaningful court review because the Attorney General's unilateral
certification would have to be found by the court to have been made in
bad faith for the gag order to be lifted.
It is argued in response to the fishing expedition argument that the
Government must set forth ``facts'' supporting a section 215
application. But that requirement doesn't fix the fishing expedition
flaw. I just set forth facts, in two hypotheticals. If those
hypothetical facts would not support a broad search of the library or
clinic's records, the supporters should say what language in the
conference report would preclude a search.
When this bill left the Senate, it contained protections against
fishing expeditions. The Senate bill required a showing that the
records sought were not only relevant to an investigation but also
either pertained to a foreign power or an agent of a foreign power,
which term includes terrorist organizations, or were relevant to the
activities of a suspected agent of a foreign power who is the subject
of an authorized investigation or pertained to an individual in contact
with or known to be a suspected agent. In other words, the order had to
be linked to some suspected individual or foreign power. Those
important protections are omitted in the bill before us.
Some kind of narrowing language needs to be included in the PATRIOT
Act for section 215 orders, just as it was when this bill left the
Senate. Without that language and that linkage, the PATRIOT Act
authorizes the rankest kind of fishing expedition.
The conference report is also flawed in its treatment of national
security letters, or NSLs. NSLs compel phone companies and banks, for
example, to turn over certain customer records. The Government can
issue an NSL without going to court. And, like section 215 court
orders, the Government does not have to show any connection between the
records sought and an individual who the Government thinks is a
terrorist. And like section 215 orders, the Government can impose a gag
order on the recipient of an NSL. Also, in the case of NSLs, the
conference report does not permit meaningful judicial review of those
gag orders.
Also troubling about the NSL authority is that there is no
requirement that the Government destroy records acquired with an NSL
that turn out to be irrelevant to the investigation under which they
have been gathered. These are records that relate to innocent
Americans, and the Government should be required to destroy them if
they contain no relevant material.
It is argued that while these protections were in the bill that left
the Senate, they are not in current law. That is true. But the reason
we put sunset provisions in the law is so we could more reliably make
changes if experience indicated the need for change. We understandably
acted quickly after 9/11 to fill some holes in our laws that needed to
be filled. We added sunset provisions so we could review the law we
wrote with the benefit of greater thought, in an atmosphere more
conducive to protecting our liberties than understandably was the
situation immediately after a horrific, wrenching, deadly attack.
Finally, I must comment on a tactic used in this debate which runs
against the very grain of the Senate. The majority leader used a
procedural tactic to prevent any Senator from offering any amendment
during consideration of the Sununu bill, amendments which could have
addressed some of the flaws I just described. That tactic of stifling
consideration of any amendment is contrary to the normal procedures of
the Senate and reflects poorly on what is sometimes billed as the
greatest deliberative body in the world. The rules of the Senate were
written with the intent of allowing the consideration of amendments. In
this instance, the rules were misused to block any effort to offer
amendments. I voted against ending debate on the Sununu bill and
against proceeding to debate on the PATRIOT Act conference report
because no amendments were allowed to be considered.
This conference report still falls short of what the American people
expect Congress to achieve in defending their rights while we are
advancing their security. As a result, although I support many of its
provisions, I must oppose it.
Mr. KYL. Mr. President, I rise today to comment on the USA PATRIOT
Improvement and Reauthorization Act conference report. I support the
conference report and, in particular, the conference report's
amendments to section 215, the FISA business records provision, because
those amendments confirm that investigators may use section 215 to
obtain records and other tangible items that are relevant to any
authorized national security investigation other than a threat
assessment. The conference report appropriately balances privacy
concerns and national security needs by amending the method by which
investigators can obtain relevant records but not changing or otherwise
limiting the scope of records that can be obtained through a section
215 order. For example, where appropriate, investigators may still
obtain sensitive records such as library or bookstore, medical, or tax
return records, but they must obtain very high-level sign-off
internally before asking the court to order those records' production.
Similarly, the conference report imposes an obligation on the Attorney
General to develop minimization guidelines for the retention and
dissemination of U.S. person information obtained through a section 215
order, but leaves the Department with flexibility in obtaining the
information in the first instance and in structuring those minimization
procedures.
My support for the conference report turns on my understanding that
it codifies our intent not to limit the scope of items and records that
can be obtained through section 215. This stands in contrast to the so-
called ``three-part test'' that passed the Senate last year, which
really did run the risk of limiting our investigators' ability to
obtain records relevant to authorized national security investigations.
The conference report is clear: we are continuing to provide our
investigators with the tools they need. Along with two of my fellow
conferees, Senators Roberts and Sessions, I sent a letter to Chairman
Specter on the eve of the conference vigorously objecting to the
Senate's proposed three-
[[Page S1617]]
part test. As the three of us expressed in that letter, we believed
that requiring use of the three-part test to show relevance would have
been a serious mistake. I am pleased to see that the final conference
report does not mandate the use of that test. I will have that letter
added to the Record following my remarks.
I support the conference report, including its amendments to section
206 of the USA PATRIOT Act, which authorizes ``roving'' wiretap orders
under FISA because I believe that the amendments to section 206 do not
hamper investigators' ability to use this critical tool. In this day
and age of sophisticated terrorists and spies who are trained to thwart
surveillance, allowing investigators to seek a wiretap that follows a
specified target--rather than a particular cell phone--is critical. The
conference report explicitly preserves this ability, while clarifying
the level of detail necessary for investigators to obtain this type of
wiretap. Similarly, I support the conference report's amendments to
section 206 because they recognize that there may be some situations
where it will not be practicable for investigators to return to court
within 10 days of directing surveillance at a new phone or place. The
conference report wisely affords the FISA Court judges discretion to
extend the period of time investigators will have to keep the court
apprised of how roving wiretaps are being used.
I support the conference report, and I support the amendments set out
in S. 2271, because I think they set out the proper standard for
judicial review of nondisclosure orders accompanying section 215 FISA
business records orders and national security letters. We all recognize
the need for secrecy in national security investigations--both to avoid
tipping off targets in a particular case, and to avoid giving our
enemies a better picture of how we conduct our investigations. Our
enemies are sophisticated and devote enormous time and energy to
understanding how we operate, all in service of allowing their agents
to evade our investigations. The conference report recognizes the need
for secrecy when the Government obtains a section 215 order from a
court or serves an NSL on a business. But it also responds to concerns
raised that recipients should have an explicit right to judicial review
of nondisclosure orders.
The standard in the conference report is the appropriate one, both
constitutionally and practically, as it recognizes that sensitive
national security and diplomatic relations judgments are particularly
within the Executive's expertise. The Constitution has vested these
determinations with the Executive, and courts have long recognized that
judges are ill-suited to be second-guessing the Executive's national
security and diplomatic affairs judgments. Disclosures that seem
innocuous to a judge who quite naturally must view those disclosures
without being fully aware of the many other data points known to our
enemies--may nonetheless be quite damaging. The conference report's
standard is therefore the correct one. It will be the exceedingly rare
case in which a judge will find, contrary to a certification by an
executive branch official, that there is no reason to believe that the
nondisclosure order should remain in place. It will be even rarer for a
judge to find that one of the Senate-confirmed officials designated in
the conference report has acted in bad faith.
I could not have supported the conference report or the explicit
judicial review of nondisclosure orders if I thought that they would
give judges the power to second-guess the informed national security
and diplomatic relations judgments of our high-level executive branch
officials. The conference report makes clear that judges will not have
such discretion, which is why I am voting for this report.
Another provision in particular that I support is the new public
reporting obligations for the FBI's use of national security letters.
That reporting will allow Congress to better perform our oversight
obligations without endangering national security. The reporting
requirement is focused on what is the most relevant number to Congress
and the public--the aggregate number of different U.S., persons about
whom information is requested. The reporting requirement does not
require the FBI to break down the aggregate numbers in its report by
the different authorities that allowed the national security letters,
which is critical to preventing our enemies from gaining too much
information about the way we investigate threats to the national
security. And the reporting obligation is limited to information about
U.S. persons. I support this limited public reporting because I think
it will provide valuable information for our public debate--but without
revealing too much information about the FBI's use of this valuable
tool and thus compromising its use.
I ask unanimous consent that the November 3 letter to Chairman
Specter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, November 3, 2005.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, Hart Senate Office
Building, Washington, DC.
Dear Chairman Specter: We are writing to express our
concern about legislative language that we understand that
you are considering adding to section 215 of the USA Patriot
Act, the business-records provision of the Foreign
Intelligence Surveillance Act. We have learned that you have
discussed with Chairman Sensenbrenner the possibility of
adopting in the final bill a modified version of the three-
part test for ``relevance'' that was added to the Senate bill
when it was marked up in the Judiciary Committee.
We believe that adding the three-part test to the final
bill would be a serious mistake. We are deeply troubled by
the complications that this language might cause for future
anti-terrorism investigations. Given the continuing grave
nature of the terrorist threat to the United States, and the
complete absence of any verified abuses under the Patriot Act
since it was enacted, we believe that congress should be
strengthening, not diluting, the investigative powers given
to United States intelligence agents. We would have great
difficulty supporting a conference report that adds the
three-part test to section 215.
As you know, Sec. 215 of the Patriot Act allows the FBI to
seek an order from the FISA court for ``the production of
tangible things (including books, records, papers, documents,
and other items) for an investigation to obtain foreign
intelligence information.'' FISA defines ``foreign
intelligence'' as information relating to foreign espionage,
foreign sabotage, or international terrorism, or information
respecting a foreign power that relates to U.S. national
security or foreign policy.
Section 215 is basically a form of subpoena authority,
albeit one whose use requires pre-approval by a judge. As
then-Deputy Attorney General Comey noted, ``orders for
records under [Sec. 215] are more closely scrutinized and
more difficult to obtain than ordinary grand jury subpoenas,
which can require production of the very same records, but
without judicial approval.'' Similarly, the Washington Post
has noted in an editorial regarding Sec. 215 that similar
authority ``existed prior to the Patriot Act; the law extends
it to national security investigations, which isn't
unreasonable.''
Some critics of the Patriot Act have noted that it
currently does not require a finding that a Sec. 215 order be
relevant to a foreign-intelligence investigation. The Justice
Department has conceded in litigation that a subpoena must be
relevant to a legitimate investigation, and both the Senate
and House bills add an explicit relevance requirement to the
Patriot Act.
The final Senate bill goes further, however. The night
before the committee mark up of the bill, a set of additional
changes to the bill was proposed in order to address
continuing Justice Department concerns and to appease the
Democrats, who had filed in excess of 80 amendments to the
bill. This final managers' amendment included, among other
things, a three-part test for determining whether a Sec. 215
subpoena is, in fact, relevant to a foreign-intelligence
investigation.
We appreciate the need to move this bill expeditiously and
to avoid an extended debate over amendments in the Judiciary
Committee. It had been our understanding, however, that the
last-minute changes that were made to the bill in order to
speed legislative progress would be re-evaluated in
conference. And we believe that the three-part test that was
added to Sec. 215 is unsound.
The three-part test, as we understand its latest iteration,
would require the FBI to show, before a Sec. 215 subpoena may
issue, that there are reasonable grounds to believe that the
records that are sought either pertain to, are relevant to
the activities of, or pertain to an individual in contact
with or known to a suspected agent of a foreign power.
We have several questions about the language of the three-
part test. To begin with the first part, what does it mean
for information to ``pertain'' to a foreign power or its
agent? How is this standard different from the traditional
relevance test? Obviously, all foreign-intelligence
information in some way relates to a foreign power--FISA
expressly defines ``foreign intelligence'' in terms of
foreign powers and their activities. Does all information
that is relevant to a foreign-intelligence investigation
therefore also ``pertain'' to a foreign power? If it does,
what is
[[Page S1618]]
the purpose of the three-part test? And if the two standards
are not co-extensive, what investigations are blocked by the
three-part test, and are these investigations something that
we want to block?
Similarly, what is the scope of the ``activities'' of a
suspected agent of a foreign power? Does it include
activities in which one suspects that a foreign agent might
generally be involved, without regard to a specific subset of
dates, times, and locations? Also, has the FBI ever
subpoenaed records in the course of an intelligence
investigation that did not relate to the activities of a
suspected foreign agent, but which nevertheless were relevant
to a foreign-intelligence investigation? Also, are there
likely scenarios that would meet the relevance test but that
do not relate to the activities of a foreign power? If so, we
should inform ourselves about these past cases and scenarios,
and ask whether we would want to preclude an FBI
investigation in those circumstances.
Finally, what does it mean for a person to be ``in contact
with'' or ``known to'' a suspected foreign agent? Does
``contact'' require a showing of communication between the
two, or mere association? If association is sufficient, must
it be recurring? And if a single instance of association is
sufficient, how long must that association last? Also, what
is the purpose of the language requiring that the ultimate
target of the subpoena be ``known to'' an agent of a foreign
power? This language appears to preclude a subpoena if the
FBI can show only that the foreign agent is known to the
target, but not that the target is known to the foreign
agent. Is this distinction intentional? Also, this part
appears to bar investigations of targets who are seeking to
make contact with a foreign power but have not yet
consummated that contact. Do we want to bar the use of
Sec. 215 in such circumstances?
Although we would hope that the three-part test would be
construed broadly by the FISA court, we would expect that
court to conclude that the test significantly retracts the
permissible scope of FISA subpoenas. First, the court
inevitably would assume that congress added the three-part
test to the statute because it perceived a need to
restrict the use Sec. 215. Further, the canon of statutory
of construction that each part of a statute should be
interpreted so that it has independent meaning also
recommends a narrow interpretation of the three-part test.
If each part of the three-part test is to have independent
meaning, it must restrict investigations to a greater
extent than does the relevance test. It thus seems to us
inevitable that if we adopt the three-part test, that test
will bar some significant subset of investigations that
otherwise would be permitted by current law and the
relevance test.
Just as important as the substantive limits created by the
three-part test, however, are the bureaucratic burdens that
it certainly will entail. One of the consistent lessons
taught by all of the investigations of the failures that led
the 9/11 attacks is that seemingly small or technical
barriers can make a critical difference to the success of a
terrorism investigation.
In two separate instances that we now know of, federal
investigators were in close pursuit of 9/11 conspirators
prior to the attacks and might have been able to uncover or
even disrupt the plot. In each instance, however, these
investigations were seriously--perhaps critically--undermined
by bureaucratic barriers that few would have thought
significant before 9/11. Several weeks before the attacks,
federal agents in Minneapolis had arrested Zacarias Moussaoui
and sought a FISA warrant to search his belongings, which we
now know included the names of two 9/11 hijackers and a high-
level organizer of the attacks who later was captured in
Pakistan. The FBI was unable to obtain that warrant, however,
because at the time FISA required that the target of the
warrant be an agent of a foreign power--apparent lone-wolf
terrorists such as Moussaoui, even when believed to be
involved in international terrorism, could not be the target
of a FISA warrant. Similarly, two weeks before the 9/11
attacks, federal agents learned that Khalid Al-Midhar, one of
the eventual suicide pilots, was in the United States. Based
on his past Al Qaeda associations, these agents understood
that Al-Midhar was dangerous and they immediately initiated a
search for him. These intelligence agents were barred from
seeking assistance from the FBI's Criminal Division, however,
because of the legal wall that at that time barred
cooperation between intelligence and criminal investigators.
We understand that you and Chairman Sensenbrenner are
considering adopting the three-part test as a permissive
presumption, and that you would also allow the issuance of
Sec. 215 orders that meet the relevance test but not the
three-part test so long as those orders are subject to
minimization procedures. Though such a system apparently
would eventually allow any relevant investigation to go
forward, its ultimate effect would be to greatly complicate
the process of obtaining a Sec. 215 order. Current law simply
requires a showing of relevance to an intelligence
investigation. The proposed system, in addition to its
alternative procedures and presumptions, introduces a host of
legal issues discussed earlier. These issues not only will
generate litigation, but will also produce considerable legal
and operational aversion to the use of Sec. 215.
We think that it is inevitable that in some cases, agents
will be dissuaded from or delayed in seeking a Sec. 215
subpoena by the burdens created by this proposed system. The
risk may appear insignificant that these additional burdens
would fatally undermine a critical anti-terrorism
investigation. But again, the legal and technical barriers
that seriously undercut the pre-9/11 Moussaoui and Al-Midhar
investigations also must have seemed minor at that time. When
agents are investigating a particular suspect, they typically
will have no way of knowing if he is a lead to discovering a
major terrorist conspiracy. Even the Moussaoui and Al-Midhar
investigators could not have known the importance of their
efforts. Thus even when a bureaucratic barrier can be
overcome, it is easy to envision how it might cause
investigators to abandon pursuit of one target in favor of
competing targets, or to give that target a lower priority.
We appreciate that Sec. 215 has become controversial in the
debate over the Patriot Act--that it is one of the few
provisions specifically attacked by so-called civil liberties
groups and in newspaper editorials. We understand the appeal
of doing something that would appease these parties.
Nevertheless, we believe that higher priorities must be given
precedence in this case. Absent real evidence of abuse, we
should not legislate on the basis of hypothetical scenarios.
Our national-security investigators abide by the rules
governing their conduct. We should provide them with all of
the tools to do their jobs that are constitutionally
available--especially when those tools already are available
to agents conducting ordinary criminal investigations.
Few things would cause us greater regret than if another
major terrorist attack were to occur on United States soil,
and we were later to discover that procedural roadblocks that
we had adopted in this conference report substantially
impeded an investigation that might have prevented that
attack. Again, we strongly urge you to oppose adding the
proposed three-part test to Sec. 215 of the Patriot Act, and
we note that we would have great difficulty supporting a
conference report that includes such a provision.
Sincerely,
Jon Kyl,
U.S. Senator.
Pat Roberts,
U.S. Senator.
Jeff Sessions,
U.S. Senator.
Mr. CHAMBLISS. Mr. President, once again, I want to congratulate
Chairman Specter and Chairman Roberts for their extraordinary work in
forging a conference report on the reauthorization of the USA PATRIOT
Act. I have previously expressed disappointment that many concessions
were made during this process which I believe have resulted in a bill
far weaker than the original PATRIOT Act which passed overwhelmingly in
response to the terrorist attacks of 9-11 and which represented long-
overdue modernization of our intelligence and criminal investigative
techniques. Similarly, this bill is far weaker than that agreed to
after the hard work of the House-Senate conferees.
Nevertheless, our failure to pass this important extension would once
again relegate America's intelligence and criminal professionals to the
dark ages of investigative techniques, shackle them with outdated
constraints, and prevent them from finding and stopping those who are
intent on murder, terror, and the ultimate annihilation of Western
civilization.
Arguments against the PATRIOT Act have been largely, if not wholly,
without factual basis. They are premised upon a misperception of what
protects our liberties. For the last 5 years, it has been the PATRIOT
Act which has, at once, helped to keep us safe and to protect our
Constitutional rights and liberties. Those liberties have not been
jeopardized by expanded governmental authority, but by violent attacks
against our way of life by terrorists. Those who have systematically
worked to weaken this important bill, and who, even now oppose it,
have, in my view, lost site of that reality, whether intentionally or
not.
The PATRIOT Act represented long-overdue reforms of both our criminal
and intelligence investigative laws. It modernized outmoded and
antiquated law enforcement provisions and provided for commonsense law
enforcement at its best. The provisions of the PATRIOT Act have been
responsibly and appropriately utilized by the dedicated men and women
of Federal law enforcement and the intelligence community to accomplish
amazing victories in the war on terrorism.
In my earlier statement in support of the conference report on
December 19, 2005, I outlined in detail case after case in which
provisions of the PATRIOT Act had been utilized to identify and
successfully prosecute terror-criminals and to thwart terrorist plots
designed to harm Americans. I will not recount
[[Page S1619]]
those cases again here, but suffice it to say that the PATRIOT Act has,
in very tangible ways kept us safe and free.
I therefore urge my colleagues to vote for this reauthorization, even
as we work to remove the burdensome restrictions on law enforcement and
intelligence professionals which have been imposed on them during this
renewal process. We owe that much to them and to the future generations
of the free peoples of the world. We must not shrink from that solemn
obligation.
Ms. CANTWELL. Mr. President, I rise today to speak about the PATRIOT
Act.
Like many of my colleagues, I am confronted with a very difficult
decision. There are rarely easy answers in the Senate and today is no
exception. The healthy debate we have had in this body over the last
few days has been vigorous and valuable.
Today, we have a solemn obligation to protect our Nation from those
who may bring terror into our homes. At the same time, we have a
responsibility to respect our rights and honor our privacy. These
principles are not mutually exclusive: we can and must achieve both.
This is one of the most significant pieces of legislation shaping our
ability to resist and eliminate terrorist activity on our home front.
Our actions today will have tremendous consequences in the lives of all
Americans in months, years, and decades ahead.
I am proud that in the rush and passions surrounding this bill, I
have worked with my colleagues to insist on a serious, patient, and
transparent debate in the Senate as we strive to find the right balance
between protecting our civil liberties and fighting terrorism.
Despite my reservations and after great deliberation, I support
reauthorization today.
I believe that we must not allow the PATRIOT Act to expire. With new
provisions and improved meaningful oversight secured at last, empower
our national leaders and policy makers with the accountability, wisdom,
and prudence to use this legislation's powers in a way that does not
undermine the freedoms we seek to protect.
Under provisions of this conference report, the Federal Government
must now provide public information on its use of intelligence
gathering tools like national security letters and FISA warrants. What
is more, this legislation provides for formal audits of these programs.
We must play close attention in order to learn lessons of the past and
prevent abuse in the future.
I will join my colleagues in strongly pursuing additional sunset
provisions I believe should have been included in this bill, to give
Congress the opportunity to reassess whether these tools are yielding
the intended results in the war on terror.
We have already made some critical reforms to implement meaningful
oversight. We have managed to get some of the most controversial
provisions to sunset in another 4 years, despite the administration's
desire to make them permanent. We have started with sunsets on the
roving wiretaps and record requests from businesses and libraries. They
are not enough, but they are a start.
Because of an important vote we took yesterday, we have removed
America's libraries from the purview of national security letters.
We're allowing recipients of records requests to challenge the gag
orders on the requests and have removed disclosure requirements for the
names of attorneys assisting with those challenges. We are seeing
improvements on disclosure for ``sneak and peek'' warrants.
But I want to be clear, new powers must not be allowed to chip away
at traditional privacy rights. We must closely watch how law
enforcement uses these tools and be prepared to confront all abuses.
I believe that many provisions of the bill, particularly those
sections dealing with electronic eavesdropping and computer trespass,
remain seriously flawed and may infringe on civil liberties. And that
is why I will continue our work to improve these protections even as we
implement them.
At a time when we are making permanent broad powers for our law
enforcement and intelligence communities without the full traditional
safeguards of judicial review and congressional oversight my concerns
have been exacerbated, truthfully, by the administration's explicit
attempts to go around both the courts and the Congress with their
wiretapping and secret listening posts.
So as the FBI and other agencies continue to expand and evolve, so
will their powers. We will continue to ask who should be watching the
watchers in oversight.
There is clearly more work to be done--Chairman Arlen Specter and
Ranking Member Pat Leahy have worked together and are introducing
legislation that addresses many of my outstanding concerns. I will be
on that bill--we have made meaningful reforms.
I also want to thank Senator Feingold for his continued dogged
support for reform of this bill. I want him to know that I stand with
him in the battle to gain further reforms.
Also included in this conference report is some good news for port
security. Sadly, there is not the funding that we have repeatedly asked
for from this administration--but at least new criminal penalties for
smuggling goods through ports. There are tools to help crackdown
further on money laundering overseas by terrorist organizations.
Finally, I am very pleased that the conference report includes
essential and long overdue resources to combat our Nation's surging
methamphetamine epidemic.
Meth, as a problem in our communities, will not simply disappear on
its own. We must make it a top priority and work to end it together.
That's why I had introduced similar legislation to address meth use,
manufacture, and sale, and create a law regulating the commercially
available products used to make meth, such as pseudoephedrine.
And that's why I am so glad to see the Combat Meth Act included in
today's legislation. I was proud to cosponsor this legislation when
Senators Talent and Feinstein introduced it, and I am pleased that it
will be signed into law, providing comprehensive reforms and critical
resources. The legislation enforces strict regulations and keeps
records so that meth producers can't get their hands on those key
ingredients. When a similar type of law was enacted in Oklahoma, it
reduced meth lab busts in the state by 80 percent.
This legislation also provides valuable resources to State and local
governments for law enforcement officials investigating and shutting
down labs, investigating violent meth-related crimes, educating the
public, and caring for children affected by the drug's scourge. The
bill also confronts international meth trafficking new reporting and
certification procedures.
My State, Washington, is sixth in the country in meth production. In
2004, 1337 meth lab sites were discovered in Washington State. That
same year, 220 fatalities were linked to the drug. And we are first in
the country, when it comes to the number of children found on raided
sites. It is clear this is neither a small problem not an isolated one.
But these aren't just numbers. They are parents and children,
individual people with terrible stories of struggle and addiction.
Acting here and now, to fight this epidemic, we can provide the
resources to and protect our Nation's families and communities.
The events of September 11 have changed our country and its people
forever. We were attacked on our own soil. Thousands have died;
thousands were injured. Very simply, we must do all that we can to stop
terrorism by finding and ending terrorist activities here and abroad.
Our challenge is to do this without compromising the values that make
Americans so unique. They are the same values that have allowed our
Nation to become great: respect for personal autonomy and the rights of
the individual; and tolerance of all regardless of race or religion.
They are the values that have always guided our Nation's leaders. It
was Benjamin Franklin who said essentially:
Make sure we have our liberties. Make sure we protect the
people from ourselves. Those who would give up their
essential liberties for security deserve neither and get
neither.
We must defend both.
We must maintain and take full advantage of meaningful oversight to
ensure power is never abused. While I will
[[Page S1620]]
vote for this bill, I will also continue to work to improve this bill.
I will continue to be vigilant and urge those working defend and secure
our Nation to use these powers wisely and with great deliberation.
Mr. KYL. Mr. President, I rise today to comment on section 507 of the
USA PATRIOT Improvement and Reauthorization Act conference report. This
section originates in a bill that I introduced earlier in this year, S.
1088, the Streamlined Procedures Act. Section 507 is based on
subsections (b) through (e) of section 9 of S. 1088. My Arizona
colleague, Representative Flake, took an interest in this matter and
sought to offer this provision as an amendment to a court security and
police-officer protection bill last November. Mr. Flake's version of
the provision is printed in House Report 109-279; it made a number of
improvements to the original version in section 9 of my bill. Section
507 of the present conference report reflects most of Mr. Flake's
improvements, such as the simplification of the chapter 154
qualification standard, which obviates the need for separate standards
for those States that make direct and collateral review into separate
vehicles and those States with unitary procedures, and Mr. Flake's
enhanced retroactivity provisions.
Mr. Flake already has commented on section 507 in an extension of
remarks, at 151 Cong. Rec. E2639-40, December 22, 2005. I will not
repeat what he said there and will simply associate myself with his
remarks. Instead, I would like to focus today on why section 507 is
necessary.
Section 507 expands and improves the special expedited habeas-corpus
procedures authorized in chapter 154 of the U.S. Code. These procedures
are available to States that establish a system for providing legal
representation to capital defendants on State habeas review. Chapter
154 sets strict time limits on Federal court action, bars consideration
of claims that were not adjudicated in State court, and sharply
curtails amendments to petitions. The benefits that chapter 154 offers
to States that opt in to its standards are substantial. Currently,
however, the court that decides whether a State is eligible for chapter
154 is the same court that would be subject to its time limits.
Unsurprisingly, these courts have proven resistant to chapter 154.
Section 507 places the eligibility decision in the hands of a neutral
party--the U.S. Attorney General, with review of his decision in the
U.S. Court of Appeals for the District of Columbia Circuit, which does
not hear habeas petitions. Section 507 also makes chapter 154's
deadlines more practical by extending the time for a district court to
review and rule on a chapter 154 petition from 6 months to 15 months.
As I mentioned earlier, section 507 of the present conference report
is based on section 9 of the Streamlined Procedures Act. The SPA and
habeas reform have been the subject of multiple hearings in both the
House and Senate during this Congress. In answers to written questions
following their testimony at a July 13 hearing before the Senate
Judiciary Committee, Arizona prosecutors John Todd and Kent Cattani
provided detailed evidence of systematic delays in Federal habeas
corpus review of State capital cases. Among the information that they
provided was a comprehensive study undertaken by the Arizona Attorney
General's Office of all capital cases in the State. This study examined
the appeals of all prisoners currently on Arizona's death row--over 100
prisoners. Mr. Todd summarized the findings in his answers to written
questions:
[S]tatistical information based on Arizona's current
capital cases in Federal court, and anecdotal information
derived from Arizona's current and former capital cases
substantiate the significant problem of delay and lack of
finality for victims. The AEDPA has not solved this
problem.
There are 76 Arizona capital cases pending in Federal
court. This represents over two thirds of Arizona's pending
capital cases. Although some cases were filed within the last
few months, over half of the cases have been pending in
Federal court five years or more. Of those, thirteen cases
have been pending for seven years. Ten cases have been
pending for eight years. Five cases have been pending for
more than fifteen years.
The AEDPA was a major step in making Federal habeas review
more reliable and speedy. However, the Supreme Court's
reversals of the Ninth Circuit exemplify the unwillingness of
some court cultures to obey this Congress' directives if
there is any ambiguity in the law.
Mr. Todd also gave a summary of the extreme delays experienced by the
State of Arizona on Federal habeas review:
Only one of the 63 [Arizona death-penalty] cases filed
under the AEDPA has moved from the Federal District Court to
the Ninth Circuit. That case has been in the Ninth Circuit
for over 5 years. Twenty-eight of Arizona's capital cases
have been pending in District Court for between six and eight
years.
[One Arizona death penalty case] has been on Federal habeas
review for over 19 years. Two of those cases have been on
Federal habeas review for over 18 years, one for over 16
years, another for over 14 years, still another for over 12
years. These cases alone establish a pattern of unreasonable
delay. The [Arizona Attorney General's] report shows that
these cases are not simply strange aberrations in an
otherwise smooth functioning system of habeas review.
Mr. Todd concluded: ``there is a serious problem of delay and lack of
finality currently in Federal habeas review of state-court judgments,
even after Congress' enactment of the AEDPA almost a decade ago. . . .
Based on the attached review of the Arizona capital cases since
enactment of the AEDPA, delay has not been eliminated or even reduced,
rather it has been prolonged.''
Similarly, in his answers to written questions, Kent Cattani, the
Chief Counsel of the Capital Litigation Section of the Arizona Attorney
General's Office, reviewed the Arizona Attorney General's study of
Arizona capital cases and concluded as follows: ``Federal habeas reform
is necessary. After 9 years under the Anti-Terrorism and Effective
Death Penalty Act of 1996 (``AEDPA''), it is clear that the Act did not
eliminate or even reduce the problem of delay in the Federal habeas
process.''
Interestingly, although the Judicial Conference of the United States
has uniformly opposed all Federal habeas reform--it even objected in
writing to SPA Section 8(a)'s requirement that circuit courts decide
habeas cases within 300 days after briefing is completed--in its
September 26, 2005 letter to Chairman Specter regarding the SPA, the
Conference itself provides substantial evidence of a growing backlog
and delays in resolution of capital habeas petitions. The September 26
letter notes the following facts: From 1998 to 2002, the number of
State capital habeas cases pending in the Federal district courts
increased from 446 to 721. During the same period, the percentage of
State capital habeas cases pending in the Federal district courts for
more than 3 years rose from 20.2 percent to 46.2 percent; in the
Federal courts of appeals, the number of pending State capital habeas
cases rose from 185 to 284; and the median time from filing of a notice
of appeal to disposition for State capital habeas cases increased from
10 months to 15 months.
It is noteworthy that all of these increases in backlog and delay
have taken place after the enactment of the AEDPA in 1996--a law that
some critics of habeas reform assert has solved all of the problems
with Federal habeas.
At the most recent hearing on the Streamlined Procedures Act, before
the Senate Judiciary Committee on November 16, Ron Eisenberg, Deputy
District Attorney for Philadelphia, summarized the problems and delays
with Federal habeas review that he encounters in the course of his
work. He stated:
I have served as a prosecutor for 24 years. I am the
supervisor of the Law Division of the Philadelphia District
Attorney's Office, a group of 60 lawyers. Many of those
lawyers handle regular appeals in the Pennsylvania appellate
courts. But more and more of our attorneys must devote
themselves full time to Federal habeas corpus litigation. In
the last decade, the number of lawyers employed exclusively
on habeas work has increased 400%. Despite the limits
supposedly imposed by law, the only certain limit on the
Federal habeas process as it is currently administered is the
expiration of the defendant's sentence.
But that leaves ample opportunity and motivation for
litigation, because the cases that reach Federal habeas
review involve the most dangerous criminals, who receive the
most serious sentences--not just death penalties, but non-
capital murders, rape, violent robberies and burglaries,
brutal beatings, and shootings.
Too often, discussion of the proper scope of Federal habeas
corpus review is really just a debate about the value of the
death penalty, and the justness of imprisonment and
punishment generally. To be sure, many Federal courts seem
flatly unwilling to affirm capital sentences. In
Pennsylvania, for example, almost every single contested
death sentence litigated on habeas--over 20 cases in the last
[[Page S1621]]
decade--has been thrown out by Federal judges; only one has
been upheld.
But the primary problem is one of process, not results. The
truth is that, whether or not they end up reversing a
conviction, Federal habeas courts drag out litigation for
years of utterly unjustifiable delay, creating exorbitant
costs for the state and endless pain for the victims.
This data and testimony confirm what many capital litigators and
judges have told me is, in their view, an obvious and uncontestable
fact: the problems with Federal habeas corpus are systematic, they are
severe, and they and are growing worse. Yet even this information does
not really tell us why this problem matters--why ordinary people,
rather than just civil servants and judges, should be concerned about
the functioning of the Federal habeas system. For that information, it
is necessary to look at the impact of the current habeas system on the
surviving victims of violent crimes. The current system and the delays
that it engenders, particularly in capital cases, often are grossly
cruel to these individuals. The perpetual litigation of Federal habeas
cases denies the surviving family of a murder victim closure--it forces
them to continually relive the crime, rather than be able to put the
terrible events behind them.
Two parents of murder victims testified at hearings in this Congress
about how they have been treated by the Federal habeas system. Their
testimony makes a compelling case that this system is broken and in
need of reform. And it highlights why we should all be concerned. What
these individuals and their families--people who had already suffered
so much--have experienced at the hands of the Federal courts should
offend every American.
The first witness to testify was Carol Fornoff, who addressed the
House Judiciary Committee's Crime Subcommittee on June 7 of last year.
Mrs. Fornoff's 13-year-old daughter, Christy Ann, was murdered in 1984.
Almost every Arizonan who lived in the State at the time knows the name
Christy Ann Fornoff. Christy's murder was an event that shattered
people's sense of security, that made them afraid to let their children
play outside or go out of their sight. I remember the case vividly. And
I was stunned when I learned last year that the man who killed Christy,
although sentenced to death by the State of Arizona, still is
litigating his conviction and sentence in Federal court. His Federal
proceedings began in 1992--14 years ago. Just think about how long ago
1992 is. President Bush's father was the President at the time. Bill
Clinton was the Governor of Arkansas. Saddam Hussein's invasion of
Kuwait is closer in time to that date than the U.S. invasion of Iraq is
to today. And yet the case of Christy's killer remains in Federal
court.
Mrs. Fornoff made a powerful case for why we should find this
unacceptable. She described the suffering of her family, how this
decades-long litigation has denied them closure. I do not think that
anyone who heard Mrs. Fornoff's testimony would assert that there are
no problems with the present system. Allow me to quote the main portion
of Mrs. Fornoff's statement to the House Crime Subcommittee:
My husband Roger and I are here today to tell you about our
daughter, Christy Ann Fornoff. Christy was our youngest
daughter. She was a loving child, very gentle. She often
seemed to make friends with the kids at school who weren't
so popular. She was very dear to us.
In 1984, our family was living in Tempe, Arizona, and
Christy was 13 years old. Christy and her brother Jason both
held jobs as newscarriers for the Phoenix Gazette, a local
newspaper. Roger and I believed that jobs like this would
teach our children responsibility, while also helping them
earn a little money.
After dinner on Wednesday evening, May 9, 1984, both
Christy and Jason had been invited to go jumping on
trampolines. Jason went, but Christy had just had a cast
removed from her ankle. Instead, she went to collect on
newspaper subscriptions at an apartment complex near our
house.
Christy delivered papers at this complex every day, it was
just two short blocks from our house. Nevertheless, it was
getting dusk, so I went with Christy; she rode her brother's
bike while I walked alongside with our little dog.
At the first apartment that Christy visited, I was stopped
by a neighbor who wanted to talk about our cute dog. Christy
went on to the next apartment alone, and I followed a few
minutes later. When I got there, the bike was outside, but
there was no Christy. I started calling her name, but there
was no answer. Our dog started to get nervous. After a few
minutes, I ran home, and came back with my daughter's
boyfriend. I asked the people at the apartment that Christy
had gone to if they had seen her, and they said yes, ten
minutes ago, and that she had left. I knew that Christy
wouldn't just leave her brother's bike there.
I ran home again. My husband had just arrived at home and I
told him that Christy was missing. He immediately called the
police, and then he went to the apartment complex and began
knocking on doors. Outside of one apartment, people standing
nearby told us don't bother knocking on that door, that is
the maintenance man, and he is looking for Christy. Shortly
after, the maintenance man joined Roger in the search for
Christy.
That night, police helicopters with searchlights examined
every corner of our neighborhood. Our son drove up and down
every alley in the area on his motorcycle. Christy's
newspaper-collections book was found over a fence near the
apartment complex. But no one found Christy.
Two days later, a policeman knocked at our door. Christy's
body had been discovered wrapped in a sheet, lying behind a
trash dumpster in the apartment complex. We were absolutely
devasted. We had been hoping against hope, and couldn't
believe that our beautiful daughter was dead.
Christy's body was taken to a morgue so that an autopsy
could be performed. On Sunday, which was Mother's day, we
were finally able to view Christy's body at the funeral home.
Mother's Day has never been the same for me since.
Ten days after Christy's body was found, the maintenance
man at the apartment complex--the same man who supposedly had
been looking for her the night that she disappeared--was
arrested for her murder. Christy had been sexually assaulted
and suffocated. There was blood, semen, and hair on Christy's
body that was consistent with that of the maintenance man.
Vomit on Christy's face matched vomit in the maintenance
man's closet. Fibers on Christy's body matched the carpet and
a blanket in the maintenance man's apartment. And police
found Christy's hair inside of the apartment. We knew who had
killed our daughter.
In 1985, the maintenance man was convicted of Christy's
murder and sentenced to death. The conviction was upheld in a
lengthy opinion by the Arizona Supreme Court. The killer
raised many more challenges, but his last state appeals were
finally rejected in 1992. By that time, we already felt like
the case had been going on a long time--it had been seven
years. We couldn't imagine that the killer would have any
more challenges to argue.
But in 1992, the killer filed another challenge to his
conviction in the United States District Court. That
challenge then remained in that one court for another 7
years! Finally, in November of 1999, the district court
dismissed the case. But then a few years later, the Federal
Court of Appeals for the Ninth Circuit sent the case back to
the district court for more hearings. Today, the case remains
before that same Federal district court.
It has now been over 21 years since Christy was murdered.
By this fall, the case will have been in the Federal courts
for longer than Christy was ever alive.
I cannot describe to you how painful our experience with
the court system has been. I cannot believe that just one
court took over 7 years to decide our case.
Some might ask why we can't just move on, and forget about
the killer's appeals. But it doesn't work that way. She was
our daughter, our beautiful little girl, and he took her
away. We want to know if he was properly convicted. We want
to know, will his conviction be thrown out? Will there be
another trial? I cannot imagine testifying at a trial again.
And would they even be able to convict this man again? It has
been 21 years. How many witnesses are still here, is all of
the evidence even still available? Could this man one day be
released? Could I run into him on the street, a free man--the
man who assaulted and killed our little daughter? The courts
have turned this case into an open wound for our family--a
wound that has not been allowed to heal for 21 years.
I understand that the Federal government has the right to
create such a system. It can let the Federal courts hear any
challenge to a state conviction, at any time, with no limits.
My question to you, Mr. Chairman, is why would we want such a
system? Why would we want a system that forces someone like
me to relive my daughter's murder, again and again and again?
My daughter's killer already litigated all of the challenges
to his case in the state courts. Why should we let him bring
all of the same legal claims again, for another round of
lawsuits, in the Federal courts? Why should this killer get a
second chance? My daughter never had a second chance.
I understand that people are concerned about innocent
people being behind bars, but that is not what my daughter's
killer is suing about. Right now, the issue that is being
litigated in the Federal courts is whether the trial court
made a mistake by allowing the jury to hear that he told a
prison counselor that he ``didn't mean to kill the little
Fornoff girl.'' He claims that the counselor was like his
doctor, and that the statement is private, even though he
said it in front of other prisoners. Earlier this year, a
Federal court held a hearing on whether the killer had a
right to prevent the jury from hearing about this statement.
But the statement is irrelevant. Whether or not he said it,
the evidence of his guilt--the hairs, the fibers, the bodily
fluids--is overwhelming. The
[[Page S1622]]
issue that the killer is suing about was already resolved
before by the Arizona Supreme Court--over 17 years ago. Yet
here we are, 21 years after my daughter died, arguing about
the same legal technicalities.
People might say that it is worth the cost to let the
killer sue over every issue like this again and again. I
don't think that it is worth the cost. When you and your
colleagues are writing laws, Mr. Chairman, please think about
people like me. Please think about the fact that every time
that there is another appeal, another ruling, another
hearing, I am forced to think about my daughter's death.
Every time, I am forced to wonder, if only Christy hadn't had
the cast on her ankle--if only she could have gone on the
trampoline that evening, she would still be alive today.
Every time that I hear a helicopter, I am terrified--I think
of the police helicopters searching for Christy on the night
that she disappeared. Every time that I hear a motorcycle, I
think of my son, searching for Christy. Every time that the
courts reopen this case, I am forced to wonder, why didn't I
follow Christy to that second apartment--why did I let that
neighbor stop me to talk? Every time, I am forced to think
about how scared my little girl must have been when she died.
I urge you, Mr. Chairman, to do what you can to fix this
system. My family and I have forgiven our daughter's
murderer. But we cannot forgive a justice system that would
treat us this way.
Another witness who testified before Congress last year on the need
for Federal habeas reform is Mary Ann Hughes of Chino Hills, CA. Mrs.
Hughes's son Christopher, then 11 years old, was murdered in 1983. As
in the Fornoff case, the killer was captured, convicted, and sentenced
to death--and is still litigating his case in Federal court today. Mrs.
Hughes testified before the House Judiciary Committee's Crime
Subcommittee on November 10, 2005. This is what she said:
Christopher was a beautiful little boy. He had just
completed the fifth grade at a local Catholic school. His
classmates later planted a tree in his memory at the school.
Chris swam on the swim team and dreamed of swimming for the
University of Southern California and being in the Olympics.
He loved his younger brother, and in typical brotherly
fashion would tease him one minute and be his best friend the
next. Chris' younger brother is now 28-years-old. He has
missed Chris every day since he was murdered. Our younger son
was not yet born when Chris was murdered. I was pregnant
during part of Cooper's trial with our third son. When he was
born we gave him the middle name Christopher after the
brother he never knew. Both boys have only in the last few
years been able to face what happened to their brother. As
the years have passed, we are reminded that Chris never got
to finish grammar school, go to a prom, marry, have children
of his own, or pursue his dreams.
On Saturday, June 4, 1983, Chris asked me for permission to
spend the night at the home of his friend, Josh Ryen. We
lived in what was then a very rural neighborhood. Josh was
the only boy nearby who was really close to Chris' age and so
they formed a bond. We were good friends with Josh's parents,
Doug and Peggy Ryen. The Ryens lived just up the road from
our home with their 10-year-old daughter Jessica and eight-
year-old Josh. The last time I saw Chris alive he and Josh
were riding off on their bicycles toward Josh's house. They
were excitedly waving because they were so happy I had given
Chris permission to spend that night with Josh. The only
thing Chris had to remember was to be home Sunday in time for
church. The next time I saw Chris was in a photograph on an
autopsy table during Cooper's preliminary hearing.
Unbeknownst to anyone, Cooper had been hiding in a house in
Chino Hills just 126 yards from the Ryen's home. He had
escaped two days earlier from a minimum security facility at
a nearby prison. When Cooper was arrested for burglary in Los
Angeles he used a false identity. His identity and criminal
past should have caught up with him before he was wrongly
assigned to the minimum security portion of the prison. The
prison, however, mishandled the processing of an outstanding
warrant for Cooper for escape from custody in
Pennsylvania. He was being held pending trial for the
kidnap and rape of a teenage girl who interrupted him
while he was burglarizing a home. While staying at the
hide-out house near the Ryens, Cooper had been calling
former girlfriends, trying to get them to help him get out
of the area. A manhunt was under way for Cooper, but the
rural community surrounding the prison was never notified
of the escape.
The failure of the California prison-system to protect the
surrounding community from a dangerous felon marked the
beginning of our family and community's being let down by our
government. Within a few hours of Cooper's escape, prison
officials realized who Cooper was and how dangerous he was.
Nevertheless, they still failed to alert the community that
he was at large. Our frustration and disappointment with our
government's failings has only grown since that time as
Cooper's case continues to wind its way down a seemingly
endless path through our judicial system.
The morning following the murders, I remember being mad at
Chris because he had not arrived home on time as promised so
we could attend church. Then my anger turned to worry. I sent
my husband Bill up to the Ryen home. He saw that the horses
had not been fed, and that the Ryen station wagon was gone.
Uncharacteristically, the kitchen door was locked, so my
husband walked around the house. He looked inside the sliding
glass door of the Ryen's master bedroom. He saw blood
everywhere. Peggy and Chris were lying on the ground and Josh
was lying next to them, showing signs of life but unable to
move. My husband could not open the sliding glass door, so he
ran and kicked open the kitchen door. As he went into the
master bedroom, he found 10-year-old Jessica lying on the
floor in fetal position in the doorway, dead. He saw Doug and
Peggy nude, bloodied, and lifeless. When he went to our son
Chris, he was cold to the touch. Bill then knew that
Christopher was dead.
My husband then forced himself to have enough presence of
mind to get help for Josh, who miraculously survived despite
having his throat slit from ear to ear. Josh, only eight
years old, lay next to his dead, naked mother throughout the
night, knowing from the silence and from the smell of blood
that everyone else was dead. He placed his fingers into his
throat, which kept him from bleeding to death during the 12
hours before my husband rescued him.
Everyone inside the home had been repeatedly struck by a
hatchet and attacked with a knife. Christopher had 25
identifiable wounds made by a hatchet and a knife. Many of
them were on his hands, which he must have put against his
head to protect himself from Kevin Cooper's blows. Some were
made after he was already dead. No one should know this kind
of horror. That it happened to a child makes it even worse.
The killer had lifted Jessica's nightgown and carved on her
chest after she died. The killer also helped himself to a
beer from the Ryen's refrigerator. We wondered what kind of
monster would attack a father, mother, and three children
with a hatchet, and then go have a beer. That question has
long since been answered, but 22 years later we are still
waiting for justice.
The escaped prisoner who committed this crime was caught 2 months
later. He admitted that he had stayed in the house next door but denied
any involvement in the murders. According to the California Supreme
Court, however, the evidence of defendant's guilt was ``overwhelming.''
Not only had the defendant stayed at the vacant house right next door
at the time of the murders; the hatchet used in the murders was taken
from the vacant house; shoe prints in the Ryen house matched those in
the vacant house and were from a type of shoe issued to prisoners;
bloody items, including a prison-issue button, were found in the vacant
house; prison-issue tobacco was found in the Ryen station wagon, which
was recovered in Long Beach; and the defendant's blood type and hair
matched that found in the Ryen house. The defendant was convicted of
the murders and sentenced to death in 1985, and the California Supreme
Court upheld the defendant's conviction and sentence in 1991.
The defendant's Federal habeas proceedings began shortly thereafter,
and they continue to this day--23 years after the murders. In 2000, the
defendant asked the courts for DNA testing of a blood spot in the Ryen
house, a t-shirt near the crime scene, and the tobacco found in the
car. Despite the overwhelming evidence of his guilt, the courts allowed
more testing. All three tests found that the blood and saliva matched
the defendant, to a degree of certainty of 1 in 310 billion. Blood on
the t-shirt matched both the defendant and one of the victims.
Mrs. Hughes went on to describe, in her November 10 testimony, the
impact of this crime and the attenuated legal proceedings on her
family:
``While I know that Cooper is the one who murdered my son,
I will always bear the guilt of having given Chris permission
to spend the night at the Ryen's house. I will always feel
responsible for sending my husband to find the bodies of our
son and the Ryen family. It is a guilt similar to the guilt
that Josh feels to this day because he had begged me to let
Chris spend the night. He thinks that Chris would still be
alive if he had not spent the night. Of course, Cooper is
responsible for all the pain and suffering that he inflicted
that night and the continued pain that has followed, but it
does not help stop the pain and guilt. Kevin Cooper is still
here over 22 years later--still proclaiming his innocence and
complaining about our judicial system.
As Josh explained when he finally got a chance to speak to
the Judge about how he has been affected by Cooper's crimes:
Cooper never shuts up. We continually get to hear more bogus
claims and more comments from Cooper and his attorneys. Over
the years I have learned to know when something has happened
in Cooper's never-ending legal case: the calls from the media
start up again, or, at times, the media trucks just park
in
[[Page S1623]]
front of our house. We have no opportunity to put this
behind us--to heal or to try to find peace--because
everything is about Cooper. Our system is so grotesquely
skewed to Cooper's benefit and seemingly incapable of
letting California carry out its judgment against him.
[The] judicial system so out of balance in favor of the
convicted that it literally enables them to victimize their
victims and their families all over again through the Federal
judicial system. We understood the rights of an accused and
that Cooper's rights took precedence over ours as he stood
trial. His trial was moved to another County because of the
publicity surrounding the horrendous crimes. I had to drive a
long distance to another County to watch the trial as it
could not take place in our County. Cooper's defense attorney
spent an entire year preparing to defend Cooper at trial.
Everything was about Cooper's rights and none of our
sensibilities or concerns could be dignified because Cooper
had to have a fair trial. We understood and we waited for
justice. In California, Cooper's appeal was automatic because
he had received the death penalty for his crimes. The appeal
took six years to conclude. We understood the need for a
thorough appeal and we waited for justice.
By 1991, Cooper had received a fair trial and his appeal
had been concluded. The California Supreme Court aptly
observed that the evidence against Cooper, both in volume and
consistency, was ``overwhelming''. Since then, we have waited
and watched as the United States Supreme Court has denied
Cooper's eight petitions for writ of certiorari and two
petitions for writ of habeas corpus, and the California
Supreme Court has denied Cooper's seven habeas corpus
petitions and three motions to reopen Cooper's appeal. The
Ninth Circuit affirmed the denial of Cooper's first Federal
habeas petition, and denied him permission to file a
successive petition in 2001, and again in 2003. But then, on
Friday night, February 6, 2004, Cooper's attorneys filed an
application with the Ninth Circuit requesting permission to
file a successive habeas petition.
A three-judge panel of the Ninth Circuit denied Cooper's
application to file a successive petition on Sunday, February
8, 2004. Cooper was scheduled to be executed at one minute
after midnight on Tuesday, February 10, 2004. On Monday,
February 9, 2004, my husband and I made the trip to Northern
California from our home in Southern California. Relatives of
the extended Ryen family flew in from all over the Country.
Josh Ryen, now 30, left for dead at the age of eight, his
entire immediate family murdered, drove hundreds of miles to
reach the prison to witness the execution of Cooper. We all
expected that finally, this case would be brought to a close.
Mrs. Hughes went on to describe, however, how on the eve of the
execution, the en banc Ninth Circuit Court of Appeals sua sponte
reviewed the denial of the petitioner's successive petition application
and reversed the three-judge panel. The en banc decision stayed the
killer's execution and permitted him to pursue a second round of
Federal habeas-corpus litigation. This second round still is going on
today--15 years after the California Supreme Court affirmed the
conviction and sentence, and 23 years after the murders.
Section 2244(b)(3)(E) of title 28 states that ``[t]he grant or denial
of an authorization by a court of appeals to file a second or
successive application shall not be appealable and shall not be the
subject of a petition for rehearing or for a writ of certiorari.'' To
us lesser lawyers, this provision might seem like it means that there
shall be no en banc review of the three-judge panel's denial of the
application. But the enlightened jurists of the Ninth Circuit have
discovered that although subparagraph (E) bars the habeas petitioner
from appealing the denial, the en banc court remains free to sua sponte
grant review. Some might find it strange that Congress would have
intended to bar the en banc courts of appeals from considering a case
on the basis of a party's appeal and adversarial briefing, but intended
to allow the same courts to hear the same case without a request for
review and with no briefing. Typically, briefing is regarded as aiding
a court's consideration of a case. Of course, the losing habeas
petitioner typically does seek en banc review of the denial of the
successive-petition application and file a brief in support of his
request. I suppose that we are to trust that the en banc court of
appeals does not read that brief, or that if it does so, it puts the
brief out of its collective mind so that it might act ``sua sponte''
when it votes on whether to go en banc, lest its actions otherwise
appear to violate subparagraph (E)'s clear command that the denial of
the application is not ``appealable.''
In this case, I am prepared to believe that the judges did not read
the briefs. Despite DNA evidence that linked the habeas petitioner to
the murder scene to a degree of certainty of 1 in 310 billion, the en
banc Ninth Circuit determined that the petitioner met section 2244's
requirement that he present ``clear and convincing evidence that . . .
no reasonable factfinder would have found [him] guilty of the
underlying offense.'' The Ninth Circuit's theory was that the police
might have planted the blood evidence. As Mrs. Hughes noted in her
November 10 testimony, however:
Of course, Cooper could not explain how or why police would
plant a minute amount of blood on the t-shirt only to never
use it as evidence against him at trial. Moreover, this
evidence had been in police custody since 1984. Apparently,
these supposed rogue police officers also anticipated the
development of the Nobel Prize-winning science that would
enable Cooper to have the blood tested for DNA. Cooper also
could not explain how the police could have planted his blood
at the crime scene within a few hours of discovering the
bodies, while he was still at large.
The Ninth Circuit first granted sua sponte en banc review of the
denial of a successive-petition application in the case of Thompson v.
Calderon, 120 F.3d 1045, 9th Cir. 1997, a decision with other
procedural irregularities so glaring that the Supreme Court did not
even notice this aspect of the decision when it took it up and
reversed, Calderon v. Thompson, 523 U.S. 538, 1998. The Sixth Circuit
subsequently copied Thompson, thus allowing the Ninth Circuit to
attribute this practice to other circuits when it again applied it in
the case of the killer of Mary Ann Hughes's son. Section 8(b) of the
Streamlined Procedures Act would prevent the Ninth Circuit from doing
this in the future. Unfortunately, I was unable to have that provision
included in this conference report. I will try again in the future.
This year, it will have been 23 years since Christopher Hughes and
Doug, Peggy, and Jessica Ryen were murdered. In 2004, after the Ninth
Circuit authorized another round of litigation, a local newspaper
described the impact of this crime and the ensuing years of appeals on
the surviving family of the victims:
For nearly 20 years, since convicted murderer Kevin Cooper
was sentenced to death for the 1983 slayings of a Chino Hills
family and their young houseguest, families of the victims
have waited silently for the day the hand of justice would
grant them peace.
For those families, the last two decades have seemed like
an eternity.
I lived through a nightmare,'' said Herbert Ryen, whose
brother Douglas Ryen was among those killed, along with
Douglas' wife Peggy, their 11-year-old daughter Jessica, and
her 10-year-old friend Christopher Hughes.
[O]n the morning of Feb. 9, [2004,] the day of Cooper's
scheduled death by lethal injection, word came down that the
9th U.S. Circuit Court of Appeals had decided to block the
execution.
[T]o the Ryen and Hughes families, the stay just hours
before Cooper's scheduled execution at San Quentin State
Prison was nearly incomprehensible. The indefinite delay has
left them in a sort of emotional limbo, questioning whether
the legal system had abandoned them.
The bottom line is that this whole issue is not about Kevin
Cooper . . . it is about the death penalty,'' said Mary Ann
Hughes, the mother of Christoper Hughes. ``We're so mad--mad
because we feel as though the courts turned their back on my
son.''
They (Court of Appeals) are holding us hostage,'' Hughes
said.
For Herbert Ryen and his wife Sue, waiting for justice has
taken an equally destructive toll on their lives. The torment
their family experienced following the murders, and the
subsequent years lost to depression, could never be replaced,
he said from his home in Arizona.
Mary Ann Hughes said the pain her family suffers is only
amplified by the seemingly continuous bombardment of
celebrities campaigning against Cooper's execution. She
wonders who will cry out in anger for the victims.
One former television star and anti-death penalty activist,
Mike Farrell of the popular series MASH, spoke of the case on
a recent news program.
``He claimed that we must feel relieved since the stay of
execution was granted,'' Hughes said. ``How can (Farrell)
have the audacity to say he knows what we are feeling?''
Farrell could not be reached for comment.
Since Christopher's death, the Hughes family has chosen to
remain out of the media spotlight. And until recently, their
efforts were successful, due largely to the support of their
surviving children, family members and a strong network of
close friends, Hughes said.
The court's decision Feb. 9 has re-opened the case, forcing
the families to re-live the nightmare they have fought so
hard to leave behind, they say.
Mary Ann Hughes is left wondering about other families who
have had loved ones taken from them, about the legal battles
they have had to endure in their own quests for justice.
[[Page S1624]]
She thinks of the parents of Samantha Runion, the 5-year-
old Orange County girl who was murdered in 2003, and of what
her family could face in the next 20 years.
For Bill Hughes, the anguish is intensified--he will
forever know the pain of walking into the Ryens' home the
morning after the murders, and finding his son, dead and
covered in blood near the Ryens' bedroom door. He was also
the first to discover Joshua Ryen, also drenched in blood,
clinging to life.
``It is a memory he will always have to live with,'' Mary
Ann Hughes said.
Indeed, time has been no friend to the victims' families,
as California's recent appellate court ruling has further
denied them closure, she added.
``What this decision has done to our legal system in
California is unthinkable,'' she said. ``Somewhere along the
line, the courts have got to uphold the law, and we will wait
it out until they do.'' (Sara Carter, ``Families of Murder
Victims Wait for Justice in Cooper Case,'' Inland Valley
Daily Bulletin, February 24, 2004.)
The impact of this litigation on Mary and Bill Hughes and Herbert and
Sue Ryen alone makes the handling of this case indefensible. No one,
however, has borne the weight of our system of Federal collateral
review more heavily in this case than has the one surviving victim of
the June 4, 1983 attack. Josh Ryen was 8 years old when he was stabbed
in his parents' bedroom and his parents and sister were murdered. He
had been Christopher Hughes's neighbor and best friend. As of last
year, however, Mary and Bill Hughes had not seen Josh since he was
airlifted by helicopter from the scene of the murders to Loma Linda
University hospital. Then on April 22, 2005, Josh Ryen appeared at the
latest Federal habeas corpus hearing for the man who killed his family.
He is now 30 years old. Pursuant to the recently enacted Crime Victims'
Rights Act, he gave a brief statement before the court. I will quote
Josh Ryen's statement in its entirety:
The first time I met Kevin Cooper I was 8 years old and he
slit my throat. He hit me with a hatchet and put a hole in my
skull. He stabbed me twice, which broke my ribs and collapsed
one lung. I lived only because I stuck four fingers in my
neck to slow the bleeding, but I was too weak to move. I laid
there 11 hours looking at my mother who was right beside me.
I know now he came through the sliding glass door and
attacked my dad first. He was lying on the bed and was struck
in the dark without warning with the hatchet and knife. He
was hit many times because there is a lot of blood on the
wall on his side of the bed.
My mother screamed and Cooper came around the bed and
started hitting her. Somehow my dad was able to struggle
between the bed and the closet but Cooper bludgeoned my
father to death with the knife and hatchet, stabbing him 26
times and axing him 11. One of the blows severed his finger
and it landed in the closet.
My mother tried to get away but he caught her at the bottom
of the bed and he stabbed her 25 times and axed her 7.
All of us kids were drawn to the room by mom's screams.
Jessica was killed in the doorway with 5 ax blows and 46
stabs. I won't say how many times my best friend Chris was
stabbed and axed, not because it isn't important, but because
I don't want to hurt his family in any way, and they are
here.
After Cooper killed everyone, and thought he had killed me,
he went over to my sister and lifted her shirt and drew
things on her stomach with the knife. Then he walked down the
hallway, opened the refrigerator, and had a beer. I guess
killing so many people can make a man thirsty.
I don't want to be here. I came because I owe it to my
family, who can't speak for themselves. But by coming I am
acknowledging and validating the existence of Kevin Cooper,
who should have been blotted from the face of the earth a
long time ago. By coming here it shows that he still controls
me. I will be free, my life will start, the day Kevin Cooper
dies. I want to be rid of him, but he won't go away.
I've been trying to get away from him since I was 8 years
and I can't escape. He haunts me and follows me. For over 20
years all I've heard is Kevin Cooper this and Kevin Cooper
that. Kevin Cooper says he is innocent, Kevin Cooper says he
was framed, Kevin Cooper says DNA will clear him, Kevin
Cooper says blood was planted, Kevin Cooper says the tennis
shoes aren't his, Kevin Cooper says three guys did it, Kevin
Cooper says police planted evidence, Kevin Cooper gets
another stay from another court and sends everyone off on
another wild goose chase.
The courts say there isn't any harm when Kevin Cooper gets
another stay and another hearing. This just shows they don't
care about me, because every time he gets another delay I am
harmed and have to relive the murders all over again. Every
time Kevin Cooper opens his mouth everyone wants to know what
I think, what I have to say, how I'm feeling, and the whole
nightmare floods all over me again: the barbecue, me begging
to let Chris spend the night, me in my bed and him on the
floor beside me, my mother's screams, Chris gone, dark house,
hallway, bushy hair, everything black, mom cut to pieces
saturated in blood, the nauseating smell of blood, eleven
hours unable to move, light filtering in, Chris' father at
the window, the horror of his face, sound of the front door
splintering, my pajamas being cut off, people trying to save
me, the whap whap of the helicopter blades, shouted
questions, everything fading to black.
Every time Cooper claims he's innocent and sends people
scurrying off on another wild goose chase, I have to relive
the murders all over again. It runs like a horror movie, over
and over again and never stops because he never shuts up. He
puts PR people on national television who say outrageous
things and then the press wants to know what I think. What I
think is that I would like to be rid of Kevin Cooper. I would
like for him to go away. I would like to never hear from
Kevin Cooper again. I would like Kevin Cooper to pay for what
he did.
I dread happy times like Christmas and Thanksgiving. If I
go to a friend's house on holidays I look at all the mothers
and fathers and children and grandchildren and get sad
because I have no one. Kevin Cooper took them from me.
I get terrified when I go into any place dark, like a house
before the lights are on. I hear screams and see flashbacks
and shadows. Even with lights on I see terrible things. After
I was stabbed and axed I was too weak to move and stared at
my mother all night. I smelled this overpowering smell of
fresh blood and knew everyone had been slaughtered.
Every day when I comb my hair I feel the hole where he
buried the hatchet in my head, and when I look in the mirror
I see the scar where he cut my throat from ear to ear and I
put four fingers in it to stop the bleeding which, they say,
saved my life. Every year I lose hearing in my left ear where
he buried the knife.
Helicopters give me flashbacks of life flight and my
Incredible Hulks being cut off by paramedics. Bushy hair
reminds me of the killer. Silence reminds me of the quiet
before the screams. Cooper is everywhere. There is no escape
from him.
I feel very guilty and responsible to the Hughes family
because I begged them to let Chris spend the night. If I
hadn't done that he wouldn't have died. I apologize to them
and especially to Mr. Hughes for having to find us and see
his son cut and stabbed to death.
I thank the judge who gave my grandma custody of me because
she took good care of me and loves me very much.
I'm grateful to the ocean for giving me peace because when
I go there I know my mother and father and sister's ashes are
sprinkled there.
Kevin Cooper has movie stars and Jesse Jackson holding
rallies for him, people carrying signs, lighting candles,
saying prayers. To them and you I say:
I was 8 when he slit my throat,
It was dark and I couldn't see.
Through the night and day I laid there, trying to get up and
flee.
He killed my mother, father, sister, friend,
And started stalking me.
I try to run and flee from him but cannot get away,
While he demands petitions and claims, some fresh absurdity.
Justice has no ear for me nor cares about my plight, while
crowds pray for the killer and light candles in the
night.
To those who long for justice and love truth which sets men
free, When you pray your prayers tonight, please
remember me.
Even those who oppose capital punishment--who would like to see it
abolished--should not support a system that treats the victims of
violent crimes in this way. Creating a fair, efficient, and expeditious
system of Federal habeas review should be a bipartisan cause. Indeed,
it was President Clinton who noted after the enactment of the 1996
AEDPA reforms that ``it should not take eight or nine years and three
trips to the Supreme Court to finalize whether a person in fact was
properly convicted or not.''
I believe that section 507 of the PATRIOT Reauthorization Act, by
extending the benefits of chapter 154 to States that provide counsel to
capital defendants on postconviction review, will help to achieve that
goal. In Murray v. Giarratano, 492 U.S. 1, 1989, the Supreme Court held
that States are not constitutionally required to provide counsel in
State postconviction proceedings, even in capital cases. In AEDPA,
Congress added chapter 154 to title 28 of the United States Code,
offering the States an incentive to provide qualified counsel in such
proceedings. Among the incentives was an expedited process, with time
limits on both the district courts and the courts of appeals.
AEDPA left the decision of whether a State qualified for the
incentive to the same courts that were impacted by the time limits.
This has proved to be a mistake. Chapter 154 has received an extremely
cramped interpretation, denying the benefits of qualification to States
that do provide qualified counsel and eliminating the incentive for
other States to provide counsel. In
[[Page S1625]]
Ashmus v. Woodford, 202 F.3d 1160, 2000, the Ninth Circuit held that
California did not qualify because its competency standards were in the
State's Standards of Judicial Administration rather than its Rules of
Court, a hypertechnical reading of the statute. In Spears v. Stewart,
283 F.3d 992, 1018, 2001, the Ninth Circuit held that even though
Arizona had established a qualifying system and even though the State
court had appointed counsel under that system, the Federal court could
still deny the State the benefit of qualification because of a delay in
appointing counsel.
Section 507 of this bill abrogates both of these holdings and removes
the qualification decision to a neutral forum. Under new section 2265,
the Attorney General of the United States will decide if a State has
established a qualifying mechanism, and that decision will be reviewed
by the D.C. Circuit, the only Federal circuit that does not handle
State-prisoner habeas cases and therefore is not impacted by the
qualification decision. The requirements for certification are removed
from section 2261(b) and placed in the new section 2265(a). The
``statute or rule of court'' language construed so severely by Ashmus
is removed, allowing the States flexibility on how to establish the
mechanism within the State's judicial structure. There is no longer any
requirement, express or implied, that any particular organ of
government establish the mechanism for appointing and paying counsel or
providing standards of competency--States may act through their
legislatures, their courts, through agencies such as judicial councils,
or even through local governments.
Once a State is certified as having a qualifying mechanism, chapter
154 applies to all cases in which counsel was appointed pursuant to
that mechanism, and to cases where counsel was not appointed because
the defendant waived counsel, retained his own, or had the means to
retain his own. ``Pursuant'' is intended to mean only that the State's
qualifying mechanism was invoked to appoint counsel, not to empower the
Federal courts to supervise the State courts' administration of their
appointment systems. Paragraph (a)(3) of new section 2265 forbids
creation of additional requirements not expressly stated in the
chapter, as was done in the Spears case.
When section 507 was being finalized, I and others were presented
with arguments that some mechanism should be created for
``decertifying'' a State that has opted in to chapter 154 but that
allegedly has fallen out of compliance with its standards. I ultimately
concluded that such a mechanism was unnecessary, and that it would
likely impose substantial litigation burdens on the opt-in States that
would outweigh any justification for the further review. The States are
entitled to a presumption that once they have been certified as
chapter-154 compliant, they will substantially maintain their counsel
mechanisms. After all, to this day, both California and Arizona have
kept up their postconviction counsel mechanisms and standards since the
late 1980s and the mid-1990s, respectively, even though neither State
has ever received any benefits under chapter 154. This history alone
suggests that it is unnecessary to provide a mechanism for
``decertification'' of States that have opted in. Moreover, if such a
means of post-opt-in review were created, it inevitably would be
overused and abused. In my home State of Arizona, defense attorneys in
the past have boycotted the 154 system. The Ninth Circuit later used
the delays in appointing chapter 154 counsel stemming from this boycott
as grounds for denying Arizona the benefits of chapter 154 in the
Spears case. In light of this history, I thought it best to create a
system of one-time certification, with no avenues to challenge or
attempt to repeal the State's continuing chapter-154 eligibility. The
consequences of opting in to chapter 154 should not be perpetual
litigation over the State's continuing eligibility. Even if defense
lawyers in Arizona do boycott the State's system again, the resultant
delays in appointing counsel are unlikely to prejudice their clients,
who typically want delay in the resolution of their cases. And the
occasional case where such delay might prejudice a petitioner simply is
not worth the cost of creating opportunities to force the State to
continually litigate its chapter 154 eligibility. Therefore, under
section 507, once a State is certified for chapter 154, that
certification is final. There is no provision for ``decertification''
or ``compliance review'' after the State has been made subject to
chapter 154.
The incentive for a State to try to satisfy chapter 154's counsel
requirement is the array of procedural benefits that 154 provides to
States defending capital convictions and sentences on Federal habeas.
Section 2266 applies a series of deadlines for court action on chapter
154 applications: district courts will be required to rule on such
applications 15 months after they are filed.
Allow me as an aside to describe some of the back history of this
particular deadline. Current pre-conference-report law gives district
courts only 180 days to rule on a 154 petition. This probably is not
enough time for district courts to rule on these cases, even with the
streamlining provided by the rest of chapter 154. Nor was this reality
obscure to Congress in 1996. I worked on developing this provision in
my first year in the Senate, in cooperation with the Arizona Attorney
General's Office and then-California Attorney General Dan Lungren,
among others. The bill's managers initially adopted a 180-day deadline
as a bargaining position, but had always intended to extend this limit
to 1 year. Unfortunately, at a certain point in the legislative
process, other participants decided that they would object to making
any change whatsoever to the AEDPA, even to correct scrivener's or
grammatical errors--or to liberalize this deadline. Thus we ended up
with 180 days. In order to avoid imposing impossible burdens on the
district courts, I proposed extending this deadline to 15 months in the
SPA, and this extension has been included in section 507. I likely
would receive a cool reception from Chief Judge McNamee upon my next
visit to the Phoenix Federal courthouse had section 507 given Arizona
access to chapter 154 without at least somewhat liberalizing this
particular deadline.
Other relevant deadlines imposed by section 2263 are that the court
of appeals must rule on a case 120 days after briefing has been
completed. That court also must rule on a petition for rehearing and
suggestion for rehearing en banc within 30 days of the filing of the
petition and any reply. And if the court grants rehearing or goes en
banc, it must decide the case within 120 days of doing so.
These deadlines are created by chapter 154 for a reason. In too many
cases, Federal courts' resolution of capital habeas petitions has been
unreasonably slow. In the Fornoff case, for example, the petition
remained before the Federal district court from 1992 to 1999, and that
court did not even hold an evidentiary hearing in the case during that
time. And this is far from the most extreme example of habeas delay. At
the end of her written testimony before the House Crime Subcommittee,
Mrs. Fornoff included several examples of other cases involving habeas
petitioners who had murdered children and whose Federal habeas
proceedings have been unconscionably delayed. All of these examples
involved delays in the district courts much longer than the 7-year
delay in the case of the man who killed Christy Ann Fornoff: the
several cases that Mrs. Fornoff described had remained before one
Federal district court for periods of 10 years, 12 years, 13 years, and
in one case, for 15 years. I quote the portion of Mrs. Fornoff's
testimony describing these cases:
Benjamin Brenneman [was] 12 years old [when he was killed
in] 1981. This case is surprisingly similar to my daughter's
case. Benjamin also was a newspaper carrier, and also was
kidnaped, sexually assaulted, and killed while delivering
newspapers at an apartment complex. Benjamin's killer tied
him up in a way that strangled him when he moved. Police
began by questioning a man in the building who was a prior
sex offender. They found Benjamin's special orthopedic
sandals in his apartment. When they interviewed him, he
admitted that he kidnaped Benjamin, but claimed that ``he was
alive when I left him.'' Police found Benjamin's body in a
nearby rural area the next day. (More information about the
case is available in the court opinion for the State appeal,
People v. Thompson, 785 P.2d 857.)
Benjamin's killer was convicted and sentenced to death.
After the State courts finished their review of the case, the
killer filed a habeas corpus petition in the Federal District
Court in 1990. Today, 15 years later, the
[[Page S1626]]
case is still before that same court. In 15 years, the
district court still has not ruled on the case! To put the
matter in perspective, so far, and with no end in sight, the
litigation before that one district court has outlived
Benjamin by three years. This is simply unconscionable.
Michelle and Melissa Davis [were] ages 7 and 2 [when they
were murdered in] 1982. An ex-boyfriend of the sister of
Kathy Davis took revenge on the sister for breaking off their
relationship by killing Kathy's husband and her two young
daughters, Michelle and Melissa. The killer confessed to the
crime. The State courts finished their review of the case in
1991. (People v. Deere, 808 P.2d 1181.) The next year, the
defendant went to the Federal District Court. He remained
there for the rest of the decade, until 2001. When he lost
there, he appealed, and in 2003, the Federal Court of Appeals
for the Ninth Circuit sent the case back to the district
court for another hearing. Today, 14 years after State
appeals were completed, and 23 years after Michelle and
Melissa were taken from their mother, the case remains before
the same district court.
Vanessa Iberri [was] 12 years old [when she was killed in]
1981. Vanessa and her friend Kelly, also 12 years old, were
both shot in the head while walking through a campground in
1981. Kelly survived, but Vanessa did not. The killer did not
dispute that he shot the two girls. (The case is described in
People v. Edwards, 819 P.2d 436.) The State courts finished
their review of the case in 1991--already a long time. The
killer then went to Federal court in 1993. The Federal
District Court finally held an evidentiary hearing in
December 2004, and dismissed the case in March of this year.
Just now, 12 years after the case entered the Federal courts,
and 24 years after the murders occurred, the appeal to the
Federal Court of Appeals is just beginning.
Michelle Melander [was] 5 months old [when she was murdered
in] 1981. Michelle, who was just a five-month-old baby, and
her brother Michael, then 5 years old, were kidnaped in
Parker, Arizona, in July 1981. The killer dropped off Michael
along the road. Michelle's body was discovered six days later
at a garbage dump several miles down the same road. She had
been severely beaten and sexually mutilated. The State court
opinion describes the many injuries that this helpless baby
suffered. The man who committed this horrific crime later
attempted to kidnap and rape a 10-year-old girl.
State courts finished their review of his case in 1991.
(People v. Pensinger, 805 P.2d 899.) The case then went to
Federal District Court in 1992. The defendant raised new
claims that he had never argued in state court, so the
Federal court sent the case back to state court. Five years
later, the case returned to Federal court. Today, the case
remains before the same Federal District Court where the
Federal appeals began in 1992. Baby Michelle would be 24
years old now if she had lived, and there is no end in
sight for her killer's appeals.
Other examples of extreme delays on Federal habeas have been provided
to me by State prosecutors. Clarence Ray Allen, who was executed by the
State of California earlier this year, had begun his Federal habeas
proceedings in 1988--they lasted for over 17 years. Lawrence Bittaker
was convicted of four murders, four kidnappings, and nine rapes by the
State of California in 1981. He filed a habeas petition in the Federal
district court in 1991. That petition still is pending before the same
Federal district court today. Alejandro Ruiz was convicted and
sentenced to death for three murders in 1980. He initiated Federal
habeas proceedings in 1989. Those proceedings still are pending before
the same Federal district court today.
I do not mean to single out the Federal district courts for
criticism. Inexplicable delays in Federal habeas review of State
convictions appear throughout the Federal system. Section 2263's
deadlines for issuing court-of-appeals decisions and resolving
appellate rehearing petitions also are manifestly necessary. In Morales
v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth
Circuit took 3 years to decide the case after briefing was completed.
And after issuing its decision, the court took another 16 months to
reject a petition for rehearing. Similarly, in Williams v. Woodford,
306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the
case after briefing was finished--and then waited another 27 months to
reject a petition for rehearing, for a total delay of almost 4\1/2\
years after appellate briefing had been completed. Section 2263 would
have sharply reduced these delays.
Chapter 154 also creates uniform, clear rules for addressing
defaulted and unexhausted claims. It bars all review of any claim that
has not been addressed on the merits when the Federal petition is
filed, unless the claim meets one of three narrow exceptions. Section
2264, by not extending the chapter 153 exhaustion requirement to
chapter 154, allows Federal courts to treat defaulted and unexhausted
claims the same way, rather than distinguishing between them and only
dismissing the former unless they meet an exception, but returning the
latter to State court for further exhaustion. Chapter 154 eliminates
the need to ever send a claim to State court for further exhaustion.
As those familiar with the history of chapter 154 are aware, the
chapter has its origins in the 1989 Powell Committee Report. See
Judicial Conference of the United States, Ad Hoc Committee on Federal
Habeas Corpus in Capital Cases, Committee Report and Proposal, August
23, 1989. Then-Chief Justice Rehnquist had appointed former Justice
Lewis Powell to chair this committee, which was charged with studying
problems with Federal habeas corpus review of capital cases. The report
identified a lack of finality and unnecessary delays in Federal
collateral review of State capital cases, and recommended specific
reforms. With a few significant changes, such as a more restrictive
standard for holding evidentiary hearings and accommodation of the rule
of Teague v. Lane, not to mention the changes that are about to be made
by section 507, the Powell Committee Report's recommendations are what
is now chapter 154. The Powell Report is thus a very useful guide to
understanding chapter 154.
The Powell Committee Report explains, for example, why section 2264
eliminates the exhaustion rule and treats unexhausted claims the same
way as defaulted claims. As the Report notes:
The Committee identified serious problems with the present
system of collateral review. These may be broadly
characterized under the heading of unnecessary delay and
repetition. The lack of coordination between the Federal and
state legal systems often results in inefficient and
unnecessary steps in the course of litigation. Prisoners, for
example, often spend significant time moving back and forth
between the Federal and state systems in the process of
exhausting state remedies.
The Powell Committee Report then describes its proposed approach to
unexhausted claims:
Federal habeas proceedings under the proposal will
encompass only claims that have been exhausted in state
court. With the counsel provided by the statute, there should
be no excuse for failure to raise claims in state court. The
statute departs from current statutory exhaustion practice by
allowing for immediate presentation of new claims in Federal
court in extraordinary circumstances.
The Powell Committee Report further elaborates on this change to the
exhaustion requirement in its comment following the presentation of the
language that became section 2264:
If a petitioner asserts a claim not previously presented to
the state courts, the district court can consider the claim
only if one of three exceptions to the general rule listed in
[section 2264(a)] is applicable. . . .
As far as new or ``unexhausted'' claims are concerned,
section [2264] represents a change in the exhaustion doctrine
as articulated in Rose v. Lundy, 455 U.S. 509 (1982). Section
[2264] bars such claims from consideration unless one of the
[subsection (a)] exceptions is applicable. The prisoner
cannot return to state court to exhaust even if he would like
to do so. On the other hand, if a [subsection (a)] exception
is applicable, the district court is directed to conduct an
evidentiary hearing [note that this aspect of the Powell
Committee recommendation is superseded by section 2254(e)]
and to rule on the new claim without first exhausting state
remedies as Rose v. Lundy now requires. Because of the
existence of state procedural default rules, exhaustion is
futile in the great majority of cases. It serves the state
interest of comity in theory, but in practice it results in
delay and undermines the state interest in the finality of
its criminal convictions. The Committee believes that the
States would prefer to see post-conviction litigation go
forward in capital cases, even if that entails a
minor subordination of their interest in comity as it is
expressed in the exhaustion doctrine.
Section 2264 implemented the Powell Committee's approach by limiting
Federal habeas review under chapter 154 to ``claims that have been
raised and decided on merits in the State courts,'' and, in subsection
(b), by declining to extend the exhaustion principles of section
2254(b) and (c) to chapter 154. This system shifts the focus away from
and eliminates the need to exhaust State remedies for every claim.
Section 2264 does not require exhaustion, but, rather, adjudication on
the merits in State court or satisfaction of one of subsection (a)'s
exceptions. If an unexhausted or otherwise not-adjudicated-on-the-
merits claim can meet
[[Page S1627]]
one of those subsection (a) exceptions, then it can go forward, because
the exhaustion requirement does not apply. And in any event, even if a
chapter 154 prisoner, for whatever reason, still wanted to exhaust
State remedies for a new claim after he has filed his Federal petition,
he would not be able to do so and then return to Federal court: unlike
chapter 153, chapter 154 sharply curtails amendments to petitions and
thus would make it all but impossible to amend the newly exhausted
claim back into the Federal petition. Under chapter 153's stay-and-abey
regime, ``a district court may, in its discretion, allow a petitioner
to amend a mixed petition by deleting the unexhausted claims, hold the
exhausted petition claims in abeyance until the unexhausted claims are
exhausted, and then allow the petitioner to amend the stayed petition
to add the now-exhausted claims.'' James v. Pliler, 269 F.3d 1124, 9th
Cir. 2001. As the courts have explained, chapter-153 habeas petitioners
are permitted to ``stay and abey'' and then come back to Federal court
because chapter 153 petitions are subject to the relatively liberal
amendment standards of Federal Rule of Civil Procedure 15. See Anthony
v. Cambra, 263 F.3d 568, 576-578 (9th Cir. 2000). This system would not
be possible under chapter 154's section 2266(b)(3)(B), however. That
subparagraph would bar the post-exhaustion amendment that restores the
newly exhausted claims unless the amendment could meet the exacting
standards of the successive-petition bar.
Instead of staying and abeying and further exhausting, the chapter
154 petitioner will go forward: his claims in the Federal petition will
have either been raised and adjudicated on the merits in State court,
they will satisfy one of the section 2264(a) exceptions, or they will
be dismissed, and Federal adjudication of the merits of the claims that
remain before the court will commence immediately. This streamlined
approach is what makes chapter 154's deadlines for district court
adjudication possible. Obviously, if applicants were expected to use
the stay-and-abeyance system, and proceedings were put on hold so that
another round of State-court review could be completed, district courts
would not be able to resolve chapter 154 petitions within 15-month
limit, much less the 180 days required prior to 2006, that is imposed
by section 2266.
Section 2264's abolition of stay-and-abey would have made a real
difference in some of the cases that I have described. For example, in
the case of the man who killed Mary Ann Hughes's son, eliminating the
need to return to State court to exhaust new claims would have reduced
the delay in the Federal proceedings by nearly 3 years. And in the case
of Michelle Melander, the baby girl who was killed in 1981 whose case
is described in Carol Fornoff's testimony, the section 2264 system
would have eliminated 5 years of delay from the ongoing Federal
proceedings in that case.
By requiring that chapter 154 courts only consider claims adjudicated
on the merits in the State courts, and limiting the exceptions to that
rule to those enumerated in section 2264(a), chapter 154 also
effectively eliminates use of several other exceptions to the
procedural-default doctrine that I believe have proven problematic. The
chapter 153 procedural-default doctrine derives from the Supreme
Court's own rules for allowing review of a State court judgment when
respondent asserts the presence of an adequate and independent State
bar to review of the Federal question. These exceptions are numerous,
complex, and in some cases they are overly broad and simply do not
provide an adequate justification for ignoring State procedural rules.
It generally is not a significant burden on the States that the U.S.
Supreme Court has granted itself such broad and amorphous authority to
override State procedural requirements. The Supreme Court only decides
a limited number of cases every year. But on Federal habeas, where
every State criminal conviction effectively is subject to ``appeal of
right'' in Federal court, application of the full panoply of the U.S.
Supreme Court's exceptions to the adequate-and-independent State
grounds rule has become burdensome and unwieldy.
One exception to the adequate-and-independent State grounds doctrine
that has proved particularly problematic in the habeas context is the
rule that a State procedural bar is not adequate to preclude further
Federal review if the procedural requirement is ``inconsistently
applied'' by the State courts. Viewed literally and without regard to
the policies underlying the procedural default doctrine, the
``inconsistently applied'' standard can have a disturbingly broad
sweep. This standard can be understood to void any State procedural
rule that has been altered in any way or that is not strictly enforced
in absolutely every case.
Unfortunately, some lower Federal courts have adopted this draconian
interpretation. For example, the Ninth Circuit has held that if a
State's highest court clarifies a State procedural rule or reconciles
competing interpretations of that rule, then that rule was
``inconsistently applied'' prior to such clarification. As a result,
the Ninth Circuit deems the State rule ``inadequate'' to be enforced on
Federal habeas review prior to that point.
Another problematic area of chapter-153 procedural-default
jurisprudence is particular Federal courts' interpretation of the
``independence'' requirement. A State procedural decision cannot serve
as a bar to further review on the merits if it is not truly
procedural--i.e., if it is in reality a decision on the merits of the
Federal claim. Many State courts have incorporated into their
procedural rules--particularly their deadlines for filing claims--an
``ends of justice,'' ``plain error,'' or ``manifest injustice''
exception that allows State courts to hear the occasional egregious but
untimely or otherwise improper claim. Presumably, in applying such an
exception, these State courts perform at least a cursory review of the
merits of every petition, even those that clearly are untimely.
Technically, because these State courts conduct such review, their
deadlines are not purely ``procedural''--they involve some review,
however fleeting, of the merits--and therefore these deadlines are not
``adequate'' for habeas purposes. The Ninth Circuit has adopted this
rather extreme interpretation of the adequacy requirement.
It is difficult to understate the perverse consequences of the more
extreme interpretations of the exceptions to the chapter-153 procedural
default doctrine. By punishing State courts for ever departing from or
even clarifying their procedural rules, or for exercising discretion to
hear egregious cases, these interpretations deter State courts from
making the kind of commonsense decisions that are essential to
preventing a miscarriage of justice. No system of procedure will ever
be perfect; every system will always require some exceptions in order
to operate fairly and efficiently. Yet under some Federal courts'
interpretations of procedural default, unless the State court adopts a
zero-tolerance approach to all untimely claims, no matter how worthy of
an exception, the State procedural rule is at risk of being voided for
all Federal habeas cases.
In Arizona, litigants have seen the inevitable consequences of the
Ninth Circuit's no-good-deed-goes-unpunished rule: when liberality
towards criminal defendants is held against the State on Federal
habeas, the State will outlaw such liberality. In his August 19, 2005,
answers to written questions submitted to him by Senator Leahy, Arizona
prosecutor John Todd described the effect of the Ninth Circuit's
application of an extreme ``independence'' requirement:
as a result of Federal court rulings, the Arizona Legislature
repealed the requirement that all criminal cases be reviewed
by the state appellate courts for fundamental error. When an
appellate court in Arizona reviewed the entire record for
fundamental error, it did not matter that the defendant
procedurally defaulted the issue. If the error were serious
enough, even if it was only an error of state law, a
defendant would receive relief in state court through this
fundamental error review. Fearing that the Ninth Circuit's
decision in Beam v. Paskett, 3 F.3d 1301, 1305 (9th Cir.
1993), would open Arizona criminal cases to endless
litigation, the Arizona Legislature repealed Ariz. Rev. Stat.
Ann. Sec. 13-4035 in 1995.
This is not a result that anyone should want. States should not be
discouraged from affording broad review to a prisoner's claims in State
court or exercising flexibility in their application of procedural
rules. Yet in the Ninth Circuit, State executives would be ill advised
to adopt any procedural rule that affords courts any discretion
[[Page S1628]]
or includes any plain-error type exceptions.
The Ninth Circuit has accounted for a disproportionate share of all
Federal court of appeals decisions identifying exceptions to the
chapter-153 procedural default doctrine, and has issued several
particularly extreme interpretations of the doctrine. The States in
that circuit effectively are subject to a different habeas regime. The
Ninth Circuit has now voided State procedural rules in six of the
States under its jurisdiction. It has found State procedures either
inadequate or insufficiently independent to limit Federal review in
California, Oregon, Arizona, Washington, Idaho, and Nevada.
Section 2264 eliminates these problems. Rather than incorporating the
procedural-default doctrine and all of its baggage, it starts fresh; it
bars all claims not raised and decided on the merits unless one of
three narrow exceptions applies. It does not matter under chapter 154
that a Federal court thinks that the State's rules are not ``adequate''
or are not sufficiently ``independent,'' because the adequacy and
independence of the State rule no longer are the basis for barring
review of the claim in Federal court. Under chapter 154, that basis
will be section 2264, which employs its own standard and exceptions.
And under that section, no longer will the labyrinthine body of caselaw
governing the Supreme Court's certiorari jurisdiction over cases
decided on State-law grounds be applied to every State capital
conviction on Federal collateral review.
Section 2264 also eliminates the overused ``ineffective assistance
gateway'' that is a frequent feature of chapter 153 litigation. Under
chapter 153, litigants often seek to recast claims that they know are
defaulted as claims of ineffective assistance of counsel. They argue
that the default should be excused because State trial or appellate
counsel was ineffective. Chapter 154 does not include this exception.
If a claim of ineffective assistance of trial or appellate counsel
itself was raised and decided on the merits in State court, that same
claim can be raised in Federal court. But otherwise, chapter 154
charges petitioners with the acts of their attorneys. The whole point
of chapter 154 is to persuade States to establish mechanisms for
providing defendants with qualified postconviction counsel. If a State
has opted in to chapter 154, the petitioner presumptively received
qualified counsel at all stages of his State proceedings, and
opportunities to litigate issues of counsel competency should be scaled
back. If the factual predicate of a claim could have been discovered
through the exercise of due diligence, then per paragraph (3) of
section 2264(a), regardless of what the attorney did or did not do,
that claim does not qualify for an exception to the main rule of
2264(a) and it cannot be raised in Federal court.
It also bears mention that section 507 includes a retroactivity
provision that my Arizona colleague, Congressman Flake, thought
particularly important. New section 2265(a)(2) provides that the date
that a State established the mechanism by which it qualifies for
chapter 154 ``shall be the effective date of the certification under
this subsection.'' This was intended to ensure that if a State
established a mechanism for providing qualified counsel to capital
defendants on postconviction review prior to the formal designation of
a State as chapter-154 eligible--or even prior to the enactment of
chapter 154--then all capital defendants who received counsel after the
establishment of that mechanism shall be subject to chapter 154, even
if they filed a Federal petition before the State is certified as
chapter-154 eligible.
I had originally thought this provision sufficient to ensure that a
State would receive the full benefits of chapter 154 even for Federal
petitions filed before the State is certified as chapter-154 compliant.
But questions of retroactivity often prove more complicated than they
first appear. Representative Flake raised with me the question of
whether even if a Federal petition filed precertification is deemed
subject to chapter 154, Federal courts could still find that the
procedural benefits of chapter 154 only apply to that case on a going-
forward basis. In other words, the effective-date provision guarantees
that even a prefiling petition is now governed by chapter 154, but
chapter 154's procedural restrictions might be construed to not apply
to what is already in that petition. For States such as Arizona, this
would mean--assuming, of course, that I am correct in predicting that
the U.S. Attorney General will find Arizona 154-eligible--that section
507 does not completely undo the damage done by the Spears case. It is
possible, for example, that in Spears itself or in subsequent cases
that should have been subject to chapter 154, additional claims have
been amended into the petition that would not satisfy 2266(b)(3)(B), or
unexhausted claims already may have been returned to State court for
further exhaustion and the Federal petition stayed.
Given that stay-and-abey sometimes adds 5 years to the time that it
takes to address a Federal petition, Mr. Flake and I decided that it
should be made clear that the whole petition would be subject to
chapter 154, not just new claims and amendments added after the State
is certified as 154 eligible. To that end, subsection (d) was inserted
into the middle of section 507 to ensure that the 154 changes--
including the effective-date provision--would operate against pending
cases. In effect, this provision guarantees the even for a pending
case, the effective date provision applies retroactively and the case
is regarded as always having been subject to chapter 154. Thus once a
State is certified as 154-eligible and a particular petition falls
within that chapter's sweep, the courts should review the whole
petition and treat it as if chapter 154 had been applicable since
before the petition was filed. Claims added via post-answer amendments
should be reviewed for consistency with section 2266(b)(3)(B). If they
do not qualify, they should be struck, just as they would have been if
the petition had been governed by chapter 154 at the time when the
amendment was filed. And most importantly, no unexhausted claim in a
chapter-154 petition may be permitted to serve as a basis for ``stay
and abey.'' Either that claim will satisfy one of the 2264(a)
exceptions, and review of that claim and ``raised and decided'' claims
in the petition will go forward immediately, or the claim will not meet
the exception, it will be dismissed, and review of the rest of the
proper claims in that petition will go forward immediately. In either
event, review of all Federal petitions made subject to chapter 154 will
go forward immediately, though the petitioner may, of course, continue
to simultaneously pursue State review of the unexhausted claim, and the
chapter 154 time deadlines will start running. Per paragraph (d)(2),
that deadline does not run until section 507 is enacted with regard to
a particular State--meaning that it does not run until the State is
certified as chapter-154 eligible pursuant to section 507. Under
section 507, once a petition is made subject to chapter 154, it can no
longer be held in abeyance so that the petitioner can pursue State
exhaustion of unexhausted claims.
Finally, I would like to thank those individuals who have been
important to the enactment of section 507. This group includes Mike
O'Neill and Brett Tolman of Chairman Specter's staff, Mike Volkov of
Chairman Sensenbrenner's staff, and Brian Clifford of Congressman
Flake's staff. I also thank Kent Scheidegger of the Criminal Justice
Legal Foundation, who came up with the idea that became section 507.
Finally, I also thank Chairman Specter, who was willing to accommodate
me on a matter of importance to prosecutors and crime victims in the
State of Arizona by including section 507 in this conference report.
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. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, in a few minutes, the Senate will
conclude a process that began over a year ago by reauthorizing the
PATRIOT Act. I will have a few closing remarks, but first I want to
take this opportunity to thank the extraordinary staff who have worked
on this bill for so long. These men and women, on both sides of the
aisle, have worked extremely hard, and
[[Page S1629]]
they deserve to be recognized. Before I yield the floor, I will
recognize the staff by name.
Mr. President, beginning in November, when we first saw a draft of
the conference report, I have spoken at length about the substance of
this bill. I hoped that when we started the task of reauthorizing the
PATRIOT Act at the beginning of last year, the end product would be
something the whole Senate could support. We had a real chance to pass
a bill that would both reauthorize the tools to prevent terrorism and
fix the provisions that threaten the rights and freedoms of innocent
Americans.
This conference report, even as amended by the bill incorporating the
White House deal that we passed yesterday, falls well short of that
goal. And so, of course, I will vote no.
Protecting the country from terrorism while also protecting our
rights is a challenge for every one of us, particularly in the current
political climate, and it is a challenge we all take seriously. I know
many Senators who will vote for this reauthorization bill in a few
minutes would have preferred to enact the bill we actually passed,
without a single objection, in the Senate in July of last year.
I appreciate that so many of my colleagues came to recognize the need
to take the opportunity presented by the sunset provisions included in
the original PATRIOT Act to make changes that would better protect
civil liberties than did the law we enacted in haste in October 2001.
Nevertheless, I am deeply disappointed we have largely wasted this
opportunity to fix the obvious problems with the PATRIOT Act.
The reason I spent so much time in the past few days talking about
how the public views the PATRIOT Act was to make it clear that this
fight was not about one Senator arguing about the details of the law.
This fight was about trying to restore the public's trust in our
Government. That trust has been severely shaken as the public learned
more and more about the PATRIOT Act which we passed with so little
debate in 2001 and as the administration resisted congressional
oversight efforts and repeatedly politicized the reauthorization
process. The revelations about secret, warrantless surveillance last
year only confirmed the suspicions of many in our country that the
Government is, unfortunately, willing to trample the rule of law and
constitutional guarantees in the fight against terrorism.
The truth is, the negative reaction to the PATRIOT Act has been
overwhelming. Over 400 State and local government bodies passed
resolutions pleading with Congress to change the law. Citizens have
signed petitions, library associations and campus groups have organized
to petition the Congress to act. Numerous editorials have been written
urging Congress not to reauthorize the law without adequate protections
for civil liberties.
These things occurred because Americans across the country recognize
that the PATRIOT Act includes provisions that pose a threat to their
privacy and to their liberty. These are values--values--that are at the
very core of what this country represents and of who we are as a
people.
In 2001, we were viciously attacked by terrorists who care nothing
for American freedoms and American values. We, as a people, came
together to fight back, and we are prepared to make great sacrifices to
defeat those who would destroy us. But what we will not do, and what we
cannot do, is destroy our own freedoms in the process.
Without freedom, we are not America. If we do not preserve our
liberties, we cannot win this war, no matter how many terrorists we
capture or kill. That is why the several Senators who have said, at one
time or another during this debate, things such as, ``Civil liberties
do not mean much when you are dead,'' are wrong about America at the
most basic level. It seems they do not understand what America is all
about. Theirs is a vision that the Founders of this Nation, who risked
everything for freedom, would categorically reject, and so do the
American people.
Americans want to defeat terrorism, and they want the basic character
of this country to survive and prosper. They want to empower the
Government to protect the Nation from terrorists, and they want
protections against Government overreaching and Government
overreacting. They know it might not be easy, but they expect the
Congress to figure out how to do it. They do not want defeatism--
defeatism--on either score. They want both security and liberty. And
unless we give them both--and we can, if we try--then we have failed.
This fight is not over. The vote today will not assuage the deep and
legitimate concerns the public has about the PATRIOT Act. I am
convinced that in the end the Government will respond to the people, as
it should. We will defeat the terrorists, and we will preserve the
freedom and liberty that make this the greatest country on the face of
the Earth.
It has been a particular privilege to work for so long and so closely
with the bipartisan group that developed the SAFE Act. Each Senator is
supported by dedicated and talented staff, and let me mention a few of
them now. For Senator Sununu, Dave Cuzzi. Joe Zogby for Senator Durbin;
Brooke Roberts and Lisa McGrath for Senator Craig; Sam Mitchell with
Senator Salazar; and Isaac Edwards with Senator Murkowski. Let me also
recognize Bruce Cohen, Julie Katzman, and Tara Magner with Senator
Leahy; and Chairman Specter's hardworking team--Mike O'Neill, Brett
Tolman, and Nick Rossi. Other key staff on the Judiciary Committee
include Joe Matal with Senator Kyl; Christine Leonard with Senator
Kennedy; Steve Cash for Senator Feinstein; Paul Thompson with Senator
DeWine; Reed O'Connor with Senator Cornyn; and Bruce Artim with Senator
Hatch; Cindy Hayden with Senator Sessions; Preet Bharara with Senator
Schumer; Chad Groover with Senator Grassley; Eric Rosen with Senator
Biden; Ajit Pai with Senator Brownback; Mary Chesser with Senator
Coburn; Nate Jones with Senator Kohl; and James Galyean with Senator
Graham.
Staff for a number of Senators not on the committee worked very hard
on this bill as well. Let me recognize Brandon Milhorn and Jack
Livingston for Senator Roberts; Mike Davidson, who works for Senator
Rockefeller; Joe Bryan with Senator Levin; Alex Perkins and John Dickas
with Senator Wyden; Steve Taylor with Senator Hagel; Ruchi Bhowmik with
Senator Obama; Mirah Horowitz with Senator Kerry; Caryn Compton with
Senator Byrd; Eric Buehlmann with Senator Jeffords; and Alan Hicks with
Senator Frist. And thanks also to Senator Reid's staffers, Ron Weich
and Serena Hoy, and to our Democratic floor staff--Marty Paone, Lula
Davis, Gary Myrick, Chris Kang, and Mike Spahn for their help over the
past several weeks of this debate.
Finally, let me sincerely thank my own tireless and dedicated staff:
Mary Irvine, Paul Weinberger, Sumner Slichter, Chuck Stertz, Bob
Schiff, Lara Flint, Farhana Khera, Alex Busansky, Sarah Preis, Margaret
Whiting, Molly Askin, John Haffner, Bharat Ramamurti, Avery Wentzel,
Tracy Jacobson, and Molly McNab.
Mr. President, 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.
Mr. FEINGOLD. Mr. President, I yield back my remaining time.
The PRESIDING OFFICER. The time is yielded back.
Mr. FEINGOLD. 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. HATCH. 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. HATCH. Mr. President, I yield myself such time as I may need.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. In more than 4 years since the September 11, 2001, attack
on the United States, the PATRIOT Act has helped to protect our
homeland from subsequent terrorist attack. Reauthorizing this effective
piece of legislation is an important victory in the
[[Page S1630]]
continued war on terror. The PATRIOT Act safeguards freedoms of
American citizens while aggressively curtailing the opportunities
terrorists have to strike. We have added many provisions designed to
ensure that our civil liberties remain unaffected despite the fact that
civil libertarians were completely unable to point to one incident or
provide any example of abuses under the original PATRIOT Act.
As everybody knows, that act was negotiated in the Judiciary
Committee when I was chairman, and I had a lot to do with it, along
with Senator Leahy and others. We found that the original PATRIOT Act
functioned very well in the protection of our country.
The PATRIOT Act has enjoyed robust public support in Utah since its
inception. According to Dan Jones and Associates, our leading pollster
in Utah, every time the firm has polled Utahns in the last 4 years, 60
percent or more have voiced approval of the antiterrorism measure. A
poll of U.S. citizens reported that more than 60 percent of Americans
believed that the Government should do more to protect this country
from attack. Reauthorizing this act is definitely the right thing to do
for our country at a time when we tend to forget that there are people
and governments out there and in here that are committed to wiping the
United States of America off the face of the Earth. I, for one, will
stand up and say: Not on my watch.
We have held hearing after hearing listening to all sides' robust
debate about how to change the PATRIOT Act. We have had some ridiculous
suggestions, we have had some good suggestions, and we have had some
that we have had to take on this bill that really are not very good. My
prayer is that the terrorists will be foiled by our intelligence and
law enforcement agencies before another attack. But we have to give
those agencies the tools to do that. I have a lot of faith in the
ability of law enforcement men and women to do the job effectively. My
hope is that those who have agreed that we can take away some of the
tools afforded these men and women are wrong, that we can prevent
another attack and reduce the ability of law enforcement to prevent
those attacks at the same time.
The additional language that has been demanded in this bill does
exactly that. It has reduced our ability to be able to protect the
Nation under the guise that we had to protect civil liberties that were
never infringed upon in the 4 years that the PATRIOT Act has been in
existence. I particularly commend Senators Specter and Leahy for the
work they have done, Congressman Sensenbrenner in the House, and other
members of the Judiciary Committee in the House. They have worked long
and hard. There have been some provisions that we had to take in order
to get this bill reauthorized to protect the American people that we
wish we didn't have to take. I just hope this bill will work as well as
the original PATRIOT Act which has done so well in keeping us free of
terror ever since 9/11.
I don't think anybody can doubt that. We held some 24 hearings over
the years when I was chairman on the PATRIOT Act. I demanded that every
hearing show us where the act has not acted properly, show us where
there has been a violation, show us where there has been a violation of
civil liberties, show us where somebody who is a noncriminal has been
hurt by the PATRIOT Act. The fact is, not one time in all those
hearings have they been able to come up with one illustration that
people's civil liberties have been interfered with.
We passed a bill that was the Hatch-Dole bill back in, I believe it
was 1996. It was the antiterrorism effective death penalty bill. That
bill took care of domestic terrorism, but our laws were not up to speed
with regard to international terrorism. So the PATRIOT Act was the way
that we got our laws up to speed so that we could work against
international terrorism. All of these provisions in the original
PATRIOT Act we basically have in our anticrime laws. So what we did is,
we had these laws that would enable law enforcement to do a lot of
things to protect us against the Mafia, against child molesters,
against pornographers. We brought the PATRIOT Act up to the level of
those law enforcement tools. That is what the original PATRIOT Act did.
That wasn't good enough for some of our colleagues. So there has been a
lot of screaming and shouting about the PATRIOT Act, even though not
one illustration has been given in the last, really, 5 years that would
indicate that the original PATRIOT Act had interfered with anybody's
just civil liberties.
We need to pass this bill such as it is. We need to pass it and enact
it into law and give our law enforcement the tools they need to be able
to protect us. I just wish we could have reenacted the original PATRIOT
Act. But be that as it may, I compliment the chairman of the Judiciary
Committee and the distinguished ranking member, Senator Leahy, for the
work they have done. I don't think it could have happened without them
and without Chairman Sensenbrenner and others in the House. I express
my regard for them and my regard for this bill and hope everybody will
vote for it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I know some time has been specifically
retained to the Senator from Vermont. Would the Chair be good enough to
tell me how much time that is?
The PRESIDING OFFICER. Fourteen and a half minutes.
Mr. LEAHY. I thank my good friend.
Today's vote marks another stage in reauthorizing the USA PATRIOT
Act. Our goal has always been to mend the PATRIOT Act, not to end it.
To that end we passed a bipartisan bill with better provisions last
July after it was unanimously reported by the Judiciary Committee. I
appreciate the kind words of the Senator from Utah. He voted for that
bill. I voted for that bill. The distinguished chairman of the
committee, Senator Specter, voted for the bill. We have all been
chairman of that committee. The bill came here to the floor of the
Senate, and the Senate voted it out unanimously. That was a good bill.
Then the House-Senate conference was hijacked. Democratic conferees
were excluded at the request of the Bush-Cheney administration, and
congressional Republicans wrote the bill. I worked to get that process
and the bill back on track and, working with Chairman Specter, we were
able to make some progress and get some helpful additions and changes.
But the conference report that was insisted upon by the Bush-Cheney
administration and passed by Republican leaders through the House was
still flawed.
Last December, I worked with a bipartisan coalition of Senators to
oppose final passage of that conference report and create some
additional opportunities for improvements. That led to the Sununu bill
which is in essence an amendment to the conference report. I supported
Senator Sununu's efforts and praised him for it and those who worked
with him. I voted for that bill. It contained some of the improvements
I had pushed for. Our efforts to protect libraries from national
security letters was very important to me. That is why I supported
Senator Sununu's bill in spite of the worsening of the gag rule
provisions insisted upon by the Bush-Cheney administration.
Now we turn to the conference report. Even with the Sununu bill,
which I support, the conference report has not been improved
sufficiently for me to support it. Just as I opposed it last December,
I continue to oppose it. The bill that the Senate will adopt today
falls far too short and impinges too greatly on the liberties of
Americans.
The Founders made a profound choice when they framed the fourth
amendment to our Constitution as a measure to ensure the right of the
people to be secure. The word they used was ``secure.'' The fourth
amendment is, of course, about guaranteeing our privacy rights and the
requirement of the judicial check on the Government invading our homes,
our papers, and our effects. The Founders saw that as the right to be
secure. As the Constitution and the Bill of Rights were written so
carefully, every single word holds meaning. They saw a right to be
secure, and so do I. I believe that Americans' security includes our
national security, our security from terrorism, and also our right to
be secure as Americans. That means exercising the liberties and rights
and freedoms that define us across the world uniquely as Americans.
I do not believe this bill achieves the balance that we could have
and should
[[Page S1631]]
have achieved. The final product would have been better had the Bush-
Cheney administration and congressional Republicans not insisted on
locking Democrats out of the negotiations throughout the process.
Still this bill, through our efforts, in some ways represents an
improvement. It has better sunshine and reporting provisions. I worked
hard to include these new provisions because sunshine, coupled with
sunset provisions, adds up to more accountability in the use of these
Government powers. But some key provisions remain significantly flawed.
I respect those who conclude that on balance the bill's virtues
outweigh its vices. And it has both. But I believe we can and should do
better. I believe America can do better.
I am one who worked diligently on the original PATRIOT Act in the
days following the attacks of 9/11. I was chairman of the Judiciary
Committee. We moved it through in record time. I also voted to
reauthorize and improve a bipartisan version of the act back in July of
2005. I joined with Senator Sununu in leading the effort to ensure that
the provisions did not expire when we reached an impasse last fall.
In the PATRIOT Act, we provided important and valuable tools for the
protection of Americans from terrorism, and I have worked and voted to
preserve them. But I am disappointed that this conference report
represents a missed opportunity to get it right, to recalibrate the
balance better, to respect the liberties and rights of Americans while
protecting us from those who threaten harm.
I am concerned, as all Americans are, with our security. The
Presiding Officer and I and thousands of others come to work every day
in a building that was targeted for destruction by al-Qaida. I cannot
think of anything I will do in my life that makes me more proud than to
be in the Senate and come in this building every day. But I want this
building secure for you, for me, and for everybody who works here. I
know what it means to be targeted. I was a target of a letter laced
with deadly anthrax. I was supposed to open it. A couple of innocent
postal workers who touched the outside of the envelope died before it
reached me, and it was stopped before it got to my desk. It doesn't hit
much closer to home than that.
Many of us recall Benjamin Franklin's wise counsel. He was a man
involved in a revolution against King George III. Had that revolution
failed, he and his compatriots would have been hanged. When he was
working to form a government that would respect liberty and protect
people, he cautioned that those who would give up essential liberties
for temporary security deserve neither liberty or security.
More than 200 years later, we should listen to Benjamin Franklin. We
have to preserve our essential liberties or we do not preserve what
makes us Americans.
The seriously bad parts of this bill are made unacceptable because we
currently have an administration that does not believe in checks and
balances and prefers to do so many things in secret. We now see the
Bush-Cheney administration seeking to twist the authorization for use
of military force against al-Qaida into a justification for the secret,
warrantless wiretapping of Americans' e-mails and telephone calls. We
see them claiming that they need not fulfill their constitutional
responsibility to faithfully execute the laws but can pick and choose
among the laws they decide to recognize. Even the Attorney General
writes to the Judiciary Committee saying their position on the law
evolves. I did not realize there were such legislative Darwinists in
this administration that they believe so strongly in evolution when it
suits their purpose.
Legislative action should be the clear and unambiguous legal footing
for any Government powers. These matters should be governed by law, not
by whim or some shifting conception of the President's inherent
authority that is exercised in secret. Confronted with this
administration's unique claims of inherent and unchecked powers, I do
not believe the restraints we have been able to include in this
reauthorization of the PATRIOT Act are sufficient.
I will continue to work to provide the tools that we need to protect
the American people. I trust that Vermonters will understand that while
I have repeatedly voted to extend and reauthorize the PATRIOT Act, this
permanent measure falls short of what they deserve.
I will continue to work to provide the oversight and checks needed on
the use of Government power. I know the Senate is going to adopt this
measure now, but it is a pale shadow of what it could have been had the
administration not stepped in and told the leadership in the House and
the Senate that they had to get in line and do what the administration
wanted, not what an independent Congress should do. It is not the best
that the greatest democracy on Earth deserves. I will keep fighting for
us to do better.
I will continue to work to improve the PATRIOT Act, and I will work
to provide better oversight over 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 is obtained and used. 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. Much is left to be done.
If Senators work together, much can be accomplished. We will be a
more secure Nation if we do, and also our liberties will be more
secure. Certainly, we owe that to the next generation, to protect the
liberties so many other generations have fought to provide for us.
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. FRIST. 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. FRIST. Mr. President, in a few moments, we will be passing the
PATRIOT Act. By passing it, we will make America safer, while
safeguarding our civil liberties and privacy. America will be safer
because law enforcement will have the tools to track suspected
terrorists and break up terrorist cells before harm is done to innocent
Americans. America will be safer because the conference report goes
beyond the original PATRIOT Act to combat terrorist financing and money
laundering, protect our mass-transportation systems and the railways,
secure our seaports, and fight methamphetamine drug abuse--what has
grown to become the No. 1 drug problem in America--and it does so by
restricting access to the ingredients that make that poisonous drug.
Today we are making a statement that we cannot return to a pre-9/11
structure that could cost innocent Americans their lives. We will not
return to the days of the pre-9/11 bureaucratic wall that blocked
information sharing between law enforcement and intelligence. We cannot
go back. We must go forward.
Due to persistent delays and obstruction by some of my friends on the
other side of the aisle, it has taken far too long to get to today's
vote. By remaining focused on our goals, focused on governing with
meaningful solutions, to act on principles and to make America safer
and security our No. 1 priority, we will prevail today.
I am proud to cast my vote to support the PATRIOT Act, and I urge my
colleagues to do the same.
The PRESIDING OFFICER (Mr. Coleman). Under the previous order, the
hour of 3 p.m. having arrived, the Senate will proceed to vote on the
adoption of the conference report to accompany H.R. 3199.
Mr. FRIST. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the conference report. The clerk will
call the roll.
The bill 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 89, nays 10, as follows:
[[Page S1632]]
[Rollcall Vote No. 29 Leg.]
YEAS--89
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
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
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
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
NAYS--10
Akaka
Bingaman
Byrd
Feingold
Harkin
Jeffords
Leahy
Levin
Murray
Wyden
NOT VOTING--1
Inouye
The conference report was agreed to.
____________________