[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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