[Congressional Record Volume 156, Number 25 (Thursday, February 25, 2010)]
[Senate]
[Pages S793-S794]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA PATRIOT ACT EXTENSION
Mr. FEINGOLD. Mr. President, this is not where I hoped we would be,
8\1/2\ years after the USA PATRIOT Act became law. Congress should not
have passed that law in such haste in 2001 and ought to have enacted
meaningful reforms to it years ago. That is why I voted against the
PATRIOT Act in the first place, and it is why, Congress after Congress,
year after year, I have sponsored and cosponsored bills and amendments
to enact changes that would protect the rights of innocent Americans
while also ensuring that the government has the authorities it needs to
protect national security.
So needless to say, it is far from ideal that the three expiring
provisions are being extended for 1 year. But my hope is that Congress
will take the opportunity presented by the 1-year extension to finally
enact the meaningful changes to the PATRIOT Act that I have been
advocating for years. It is well past time to place appropriate checks
and balances on authorities like national security letters, whose abuse
the inspector general has documented repeatedly; ``sneak and peek''
searches, which allow government agents to search Americans' homes
without telling them until well after the fact; and section 215 orders,
which authorize the government to secretly obtain records about
Americans without connections to terrorists or spies.
I will continue to fight for these reforms, just as I did a few
months ago in the Senate Judiciary Committee. Our committee took up the
USA PATRIOT Act Sunset Extension Act in October 2009, and Senator
Durbin and I pushed for improvements on a variety of issues. Some of
those amendments were successful, such as the amendment shortening the
presumptive time period for delayed notice of a ``sneak and peek''
search warrant from 30 days to 7 days and the amendment requiring that
the Attorney General issue procedures governing the acquisition,
retention, and dissemination of records obtained via national security
letters, NSLs. There are other provisions in that bill that I strongly
support, as well, including new inspector general audits, a sunset for
the first time on the NSL authorities, and changes to the NSL and
section 215 gag orders to help bring them in line with the first
amendment.
But in key ways, that bill fell short, and as a result I voted
against it in committee. Most importantly, it did not contain
critically important protections for the government's use of section
215 orders and NSLs. Senator Durbin offered amendments that would have
required that the government be able to demonstrate some connection--
however tenuous--to terrorism before obtaining an individual's
sensitive business records using these authorities. But those
amendments were rejected.
This was in some respects mystifying. The Senate Judiciary Committee
passed this same standard for section 215 orders unanimously in 2005,
and the Senate adopted it by unanimous consent that year, although it
was not in the conference report that ultimately became law. The
arguments that led the Senate to pass this standard in 2005 still
apply. The ``relevance'' standard in current law is still dangerously
overbroad and the burden of proof should be on its proponents to
explain why a more focused standard, unanimously supported by the
Senate in 2005, cannot serve as an effective counterterrorism and
national security tool.
I recall during the debate in 2005 that proponents of section 215
argued that these authorities had never been misused. They cannot make
that case now. Section 215 has been misused. I cannot elaborate, but I
believe that the public deserves some information about this. I and
others have also pressed the administration to declassify some basic
information about the use of section 215, and it has declined. I hope
that the administration will reconsider and that more information will
be declassified before this reauthorization process is completed. I do
appreciate that the administration has offered to provide information
about this to Members of the Senate beyond those of us who serve on the
Intelligence and Judiciary Committees. But that is just a start. We
must find a way to have an open and
[[Page S794]]
honest debate about the nature of these government powers, while still
protecting national security secrets, and under current conditions that
simply isn't possible.
Congress and the American people do, however, have a great deal of
information about how the national security letter authorities have
been abused by the FBI. In a series of incredibly detailed audits--
audits that the Judiciary Committee chairman worked so hard to require
in the 2006 PATRIOT Act reauthorization legislation--the Department of
Justice Office of Inspector General has documented years of misuse. In
his first report, in 2007, the inspector general found--as he put it--
``widespread and serious misuse of the FBI's national security letter
authorities.'' His most recent report documents even more instances of
the FBI inappropriately obtaining telephone records, through the use of
so-called ``exigent letters'' and other informal requests for telephone
billing records that violated the requirements of the Electronic
Communications Privacy Act, ECPA.
So I will continue to press for improvements to the PATRIOT Act.
Indeed, last year I and nine other Senators introduced the JUSTICE Act,
which takes a comprehensive approach to fixing our surveillance laws.
It permits the government to conduct necessary surveillance but within
a framework of accountability and oversight. It ensures both that our
government has the tools to keep us safe and that the privacy and civil
liberties of innocent Americans will be protected. These are not
mutually exclusive goals. We can and must do both.
Since the PATRIOT Act was first passed in 2001, we have learned some
important lessons. Perhaps the most important is that Congress cannot
grant the government overly broad authorities and just keep its fingers
crossed that they won't be misused or interpreted by aggressive
executive branch lawyers in as broad a way as possible. It is no longer
possible for proponents of the PATRIOT Act to argue that it has never
been abused. It has. Congress cannot and must not ignore its
responsibility to put appropriate limits on government authorities--
limits that allow agents to actively pursue criminals, terrorists and
spies but that also protect the privacy of innocent Americans.
We also now know that lawyers in the Office of Legal Counsel looked
for every possible loophole in statutory language to justify what I
believe were clearly illegal wiretapping and interrogation programs.
That should also teach us that we must be extraordinarily careful in
how we draft these laws: We must say exactly what we mean and leave no
room for reinterpretation.
I hope that this extension will allow Congress an opportunity to do
just that--to get this right once and for all.
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