[Congressional Record Volume 157, Number 74 (Thursday, May 26, 2011)]
[Senate]
[Pages S3367-S3372]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SMALL BUSINESS ADDITIONAL TEMPORARY EXTENSION ACT OF 2011
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to concur in the House
message to accompany S. 990, which the clerk will report by title.
The assistant legislative clerk read as follows:
A motion to concur in the House amendment to the bill (S.
990) to provide for an additional temporary extension of
programs under the Small Business Act and the Small Business
Investment Act of 1958, and for other purposes, with an
amendment.
Pending:
Reid motion to concur in the amendment of the House to the
bill, with Reid amendment No. 347, of a perfecting nature.
Reid amendment No. 348 (to amendment No. 347), to change
the enactment date.
Reid motion to refer the message of the House on the bill
to the Committee on Small Business and Entrepreneurship with
instructions, Reid amendment No. 349, to change the enactment
date.
Reid amendment No. 350 (to (the instructions) amendment No.
349), of a perfecting nature.
Reid amendment No. 351 (to amendment No. 350), of a
perfecting nature.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 10 a.m. will be equally divided and controlled between the two
leaders or their designees.
Mr. REID. Mr. President, I suggest the absence of a quorum and ask
unanimous consent that the time be equally divided.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. McCONNELL. Mr. President, I will proceed on my leader time.
As we all know, the war on terror did not end last month when
American forces shot and killed Osama bin Laden in Abbottabad.
General Clapper, the Director of National Intelligence, wrote to me
yesterday to explain that this is a moment of elevated threat to our
country and that the intelligence community is
[[Page S3368]]
working to analyze the information gained at the Bin Laden compound.
Al-Qaida and its associate groups remain a threat to the United States.
And our intelligence community, military and law enforcement
professionals still need the tools that enable them to gather and share
intelligence in this fight.
That is why all Americans should be reassured today in knowing that
these dedicated men and women will continue to have those tools. I have
no doubt that the 4-year PATRIOT Act extension that Members of both
parties have agreed to will safeguard us from future attacks, and that
everything we agreed to in this extension is necessary for this fight.
As FBI Director Bob Mueller has said, all the authorities it contains
are critical. Every one requires the prior approval of an independent
Federal judge. Nothing in this extension has ever been found to be
unconstitutional. And most of these authorities have not even been
challenged in court--ever.
The Senate Intelligence Committee has conducted aggressive oversight
of the programs authorized by these expiring provisions. Over the past
decade, we have seen how terrorists have proved themselves adaptable,
how they have altered their tactics and methods to strike us at home.
By extending this invaluable terror-fighting tool, we are staying ahead
of them.
Now is not the time to surrender the tools authorized by this act, or
to make them more difficult to use. It was absolutely imperative that
we renew these authorities under the PATRIOT Act. They have enabled
others to keep us safe for nearly a decade. Our law enforcement
professionals have been able to use tools just like them in traditional
criminal cases for years. We should be relieved and reassured to know
they won't expire this week.
A Looming Crisis
Mr. President, last June, the Chairman of the Joint Chiefs of Staff,
ADM Mike Mullen, made an observation that may have surprised some
people. A day after Democrats here in the Senate refused to allocate
tens of billions of dollars in unemployment assistance unless the costs
could be added to an already unsustainable debt--he said that, in his
view, the biggest threat to our national security is our debt.
A few months earlier, the President himself identified the debt as a
looming crisis. He pointed out that almost all of our long-term debt
relates to the cost of Medicare and Medicaid. And he said, ``if we
don't get control of that, we can't get control over our budget.'' He
was right.
But the co-chair of the President's debt commission may have put it
best just 6 weeks ago. Speaking about the consequences of the fiscal
path we're on, Erskine Bowles said simply:
It's the most predictable crisis in history. The most predictable
crisis in history--and that was a Democrat talking. And yet Democrats
in the Senate don't even want to talk about it.
Yesterday, here in the Senate, Democrats rejected every single
proposal we have seen on our Nation's fiscal future. They took a pass.
They have chosen to ignore this crisis just like they ignored the last
one.
Three years ago, as the financial crisis approached, the senior
Senator from New York was holding press conferences trying to link the
war in Iraq to what passed for an economic slowdown at the time. The
majority leader was postponing votes that we all knew would fail so
Democrats who were running for President could be here to vote on them.
Now, in the face of a looming crisis we all admit is coming--they are
doing the same thing.
This crisis is staring us right in the face. The Democrats
themselves--from the President on down--say they see it. Yet, once
again, they are so focused on the next election they refuse to do
anything to upset the status quo. They are more concerned about their
own jobs than preventing a economic catastrophe that could affect
everybody's job. They want to wait this out--while they hammer anybody
who proposes a solution. They rejected their own President's budget.
They rejected three Republican budgets. And they have not even bothered
to offer a budget of their own. They're just marking time, treading
water.
So I think Democrats have lost the right to express concern about
this crisis. Until they propose some solution of their own, they are
part of the problem.
The American people didn't send us here to hide in a corner until the
next election. They sent us here to act on their behalf, and this is
their message: If you see a crisis coming, you better do something
about it.
Mr. President, I suggest the absence of a quorum, and I ask unanimous
consent that the time during the quorum call be charged equally to both
sides.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Cloture Motion
By unanimous consent, pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will report.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the motion to
concur in the House amendment to S. 990, with amendment No.
347.
Harry Reid, Jack Reed, Carl Levin, Jeanne Shaheen, Mark
R. Warner, Richard Blumenthal, Kent Conrad, Kirsten E.
Gillibrand, Dianne Feinstein, Bill Nelson, John D.
Rockefeller IV, Joseph I. Lieberman, Barbara A.
Mikulski, Charles E. Schumer, Debbie Stabenow, Thomas
R. Carper, Mark L. Pryor.
The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call has been waived.
The question is, Is it the sense of the Senate that the debate on the
motion to concur in the House amendment to S. 990 with amendment No.
347, offered by the Senator from Nevada, Mr. Reid, shall be brought to
a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Connecticut (Mr.
Blumenthal) and the Senator from New York (Mr. Schumer) are necessarily
absent.
I further announce that, if present and voting, the Senator from New
Jersey (Mr. Menendez) and the Senator from New York (Mr. Schumer) would
vote ``yea.''
=========================== NOTE ===========================
On page S3401, May 26, 2011, in all columns, the following
appears: ``I further announce that, if present and voting, the
Senator from New York (Mr. SCHUMER) would vote ``yea.''
The online Record has been corrected to read: ``I further
announce that, if present and voting, the Senator from New Jersey
(Mr. MENENDEZ) and the Senator from New York (Mr. SCHUMER) would
each vote ``yea.''
========================= END NOTE =========================
Mr. KYL. The following Senator is necessarily absent: the Senator
from Kansas (Mr. Roberts).
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The yeas and nays resulted--yeas 79, nays 18, as follows:
[Rollcall Vote No. 81 Leg.]
YEAS--79
Akaka
Alexander
Ayotte
Barrasso
Bennet
Blunt
Boozman
Boxer
Brown (MA)
Burr
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Mikulski
Moran
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Rockefeller
Rubio
Sessions
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Warner
Webb
Whitehouse
Wicker
NAYS--18
Baucus
Begich
Bingaman
Brown (OH)
Cantwell
Cardin
Heller
Leahy
Lee
Merkley
Murkowski
Paul
Sanders
Shaheen
Tester
Udall (CO)
Udall (NM)
Wyden
NOT VOTING--3
Blumenthal
Roberts
Schumer
The ACTING PRESIDENT pro tempore. On this vote, the yeas are 79, the
nays are 18. Three-fifths of the Senators duly chosen and sworn having
voted in the affirmative, the motion is agreed to.
Cloture having been invoked, the motion to refer the House message
falls.
Mr. REID. Mr. President, I suggest the absence of a quorum.
[[Page S3369]]
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WYDEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. WYDEN. Mr. President, I ask unanimous consent that I be permitted
to engage in a colloquy between Senators Udall, Feinstein, and Merkley.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. WYDEN. Mr. President, I am going to talk for just a couple of
minutes about the issue of secret law that Senator Udall and I, as we
are both members of the Intelligence Committee, have been working on
for quite some time. Then I am going to yield to our friend, the
distinguished chairwoman of the Intelligence Committee, Senator
Feinstein, for a colloquy.
What this issue is all about is this: I believe there are two PATRIOT
Acts in America. The first is the text of the law itself, and the
second is the government's secret interpretation of what they believe
the law means.
As an example, several years ago Americans woke up to learn that the
Bush administration had been secretly claiming for years that
warrantless wiretapping was legal. This disclosure greatly undermined
the public's trust in the Department of Justice and our national
intelligence agencies, and it took Congress and the executive branch
years to sort out the situation.
I believe the American people will also be extremely surprised when
they learn how the PATRIOT Act is secretly being interpreted, and I
believe one consequence will be an erosion of public confidence that
makes it more difficult for our critically important national
intelligence agencies to function effectively. As someone who served on
the Intelligence Committee for 10 years, sitting right next to Senator
Feinstein, I don't want to see that happen.
Let me yield now to Senator Udall. He will also have brief remarks,
and any colleagues who want to speak, and then Senator Feinstein will
lead us in the discussion of how we will be moving forward. So I yield
to Senator Udall who has been an invaluable member on the Intelligence
Committee. He and I have worked on this since the day he joined our
committee, and I am so appreciative of his involvement.
Mr. UDALL of Colorado. Mr. President, I thank the Senator from Oregon
for his kind words. I also wish to echo his remarks about the
leadership of the chairwoman of the Intelligence Committee and her
focus on keeping our country safe and our citizens protected.
I also wish to make the point that, as my colleague from Oregon, I
also oppose reauthorization of the expiring provisions in the PATRIOT
Act without significant reforms. I believe it is critical that the
administration make public its interpretation of the PATRIOT Act so
Members of Congress and the public are not kept in the dark.
Mrs. FEINSTEIN. Mr. President, I wish to thank both Senator Wyden and
Senator Udall for their comments. We did have a meeting last night. We
did discuss this thoroughly. The decision was that we would enter into
this colloquy, so I will begin it, if I may.
These Senators and I, along with the junior Senator from Oregon, Mr.
Merkley, the Senator from Colorado, Mr. Mark Udall, and the Senator
from Rhode Island, Mr. Whitehouse met last night to discuss this
amendment, the legal interpretation of the Foreign Intelligence
Surveillance Act provisions and how these provisions are implemented.
I very much appreciate the strong views Senator Wyden and Senator
Udall have in this area, and I believe they are raising a serious and
important point as to how exactly these authorities are carried out. I
believe we are also all in agreement that these are important
counterterrorism authorities and have contributed to the security of
our Nation.
Mr. WYDEN. Mr. President, I have enormous respect for my special
friend from California, the distinguished chairwoman of the
Intelligence Committee. I have literally sat next to her for more than
a decade. We agree on virtually all of these issues, but this is an
area where we have had a difference of opinion.
I have said I wouldn't support a long-term reauthorization of the
PATRIOT Act without significant reforms, particularly in this area. I
am especially troubled by the fact that the U.S. Government's official
interpretation of the PATRIOT Act is secret, and I believe a
significant gap has developed now between what the public thinks the
law says and what the government secretly claims it says. That is why I
and my colleagues from Oregon and Colorado and New Mexico have proposed
an amendment that would make these legal interpretations public.
Mr. UDALL of Colorado. Mr. President, let me say once again, as does
my colleague from Oregon, I oppose reauthorization of the existing
provisions of the PATRIOT Act that we have been debating on the Senate
floor without significant reforms. I also have to say I believe it is
critical that the administration make public its interpretation of the
PATRIOT Act so Members of Congress and our public are not kept in the
dark. That is the important work we have in front of us, and we have a
real opportunity to accomplish those goals.
Mrs. FEINSTEIN. Mr. President, if I may respond, I have agreed that
these are important issues and that the Intelligence Committee, which
is charged with carrying out oversight over the 16 various intelligence
agencies of what is called the intelligence community, should be
carried out forthrightly. I also believe the place to do it is in the
Intelligence Committee itself. I have said to these distinguished
Senators that it would be my intention to call together a hearing as
soon as we come back from the Memorial Day break with the intelligence
community agencies, the senior policymakers, and the Department of
Justice to make sure the committee is comfortable with the FISA
programs and to make changes if changes are needed. We will do that.
So it would be my intention to have these hearings completed before
the committee considers the fiscal year 2012 intelligence authorization
bill so that any amendments to FISA can be considered at that time.
The fact is, we do not usually have amendments to the intelligence
authorization bill, but I believe the majority leader will do his best
to secure a future commitment if such is needed for a vote on any
amendment. I have not agreed to support any amendment because at this
stage it is hypothetical, and we need to look very deeply into what
these Senators have said and pointed out last night with specificity
and get the response to it from the intelligence committee, have both
sides hear it, and then make a decision that is based not only on civil
liberties but also on the necessity to keep our country safe. I believe
we can do that.
I am very appreciative of their agreement to enter this colloquy.
Mr. WYDEN. Mr. President, I thank the distinguished chairwoman of the
Intelligence Committee for proposing this course of action for
addressing the secret law issue. Obviously, colleagues would like more
information on that, and they are going to be in a position to know
that the Intelligence Committee is going to be examining it closely. I
will just describe the next steps from there.
Senator Udall and I have discussed this issue with Senator Reid.
Senator Reid indicated to the chairwoman and myself and Senator Udall
that we would have an opportunity through these hearings--and, of
course, any amendments to the bill would be discussed on the
intelligence authorization legislation, which is a matter that
obviously has to be classified--but if we were not satisfied, if we
were not satisfied through that process, we would have the ability to
offer an amendment such as our original one on the Senate floor.
Of course, the chairwoman would still retain full rights to oppose
it, but we would make sure if this issue of secret law wasn't fixed and
there wasn't an improved process to make more transparent and more open
the interpretation of the law--not what are called sources and methods
which are so important to protect our people--we would have an
opportunity, if it wasn't corrected in the intelligence community, to
come to the floor.
[[Page S3370]]
Senator Reid has just indicated to all of us that he would focus on
giving us a vote if we believed it was needed on another bill--not the
intelligence authorization--before September 30. So there is a plan to
actually get this fixed, and that is what is key.
At this time I yield to the Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, as we begin to end this
important colloquy, I wish to acknowledge the leadership of Senator
Wyden on this important matter. I also wish to acknowledge the
involvement of the Senator from New Mexico, who is presiding at this
moment in time, and the Senator from Oregon, Mr. Merkley, and the
Senator from Rhode Island, Mr. Whitehouse, who has been very involved
in bringing this case to the attention of all of us. I wish to also
thank my good friend from California, the chairwoman of the committee.
She has shown a great willingness to work with everybody and to listen.
I have to say I expect that once the committee examines this issue
more closely, I think many more of our colleagues will want to join us
in reforming the law in this area. I think this is important. I do
think we can find the right balance between protecting civil liberties
and protecting the health and welfare of the American citizens.
Mr. WYDEN. Mr. President, let me just make one last comment. I also
wish to express my appreciation to Senator Merkley, who has been an
extraordinarily outspoken advocate of our civil liberties and our
privacy in striking a good balance between fighting terror and
protecting the rights of our people, and I have so appreciated his
leadership on this issue.
Let me sum up. First, I am very grateful to our chairwoman and
pleased with this agreement. The chairwoman has indicated she believes
those of us who want to reform secret law have raised a serious and
important issue. Those are her words. We are grateful for that because
we obviously believe very strongly about it. The chairwoman has said we
will hold hearings promptly to examine the secret law issue, give
serious consideration to looking at reforms in the fiscal year 2012
intelligence authorization bill, and then, per our conversations with
the majority leader, if Senator Udall and I believed it had not been
corrected on the intelligence authorization bill, we would have the
right to offer--and certainly the chairwoman could oppose it--an
amendment on the floor of the Senate on an unrelated bill. Senator
Reid, to his great credit, in an effort to try to resolve this and move
it along, said to the three of us that he would be working to do that.
Again, our thanks to the chairwoman and all of my colleagues on the
floor, including Senator Merkley, who is not a member of the committee
and knows an incredible amount about it and certainly showed that last
night in our discussions and was very helpful. I wish to yield to him.
So with the cooperation the chairwoman has shown all of us who are
trying to change this and the efforts of Senator Reid to make sure if
we didn't work it out we could come back to the floor again, I withdraw
the Wyden-Udall amendment for the time being. It ought to be clear to
everybody in the Senate that we are going to continue to prosecute the
cause of making more open and accountable the way the government
interprets this law in making sure that the American people have the
confidence that the way it is being interpreted is in line with the
text of the legislation.
I withdraw at this time the Wyden-Udall amendment, and I yield the
floor.
The ACTING PRESIDENT pro tempore. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I am deeply appreciative of the dialogue
that has just taken place. It was William Pitt in England who commented
that the wind and the rain can enter my house, but the King cannot.
It captured the spirit and understanding of the balance between
personal privacy, personal freedoms, and issues of the Crown regarding
maintenance of security. It was this foundation that came in for our
fourth amendment of our Constitution that lays out clear standards for
the protection of privacy and freedoms.
So as we have wrestled with the standard set out in the PATRIOT Act,
a standard that says the government may have access to records that are
relevant to an investigation--now, that term is, on its face, quite
broad and expansive, quite a low standard, if you will. But what
happens when it is interpreted out of the sight of this Chamber, out of
the sight of the American people? That is the issue my colleague has
raised, and it is a very important issue.
I applaud the chair of the Intelligence Committee for laying out a
process whereby we all can wrestle with this issue in an appropriate
venue and have a path for amendments in the committee or possibly here
on the floor of the Senate because I do think it is our constitutional
responsibility to make sure the fourth amendment of the Constitution is
protected, the privacy and freedoms of citizens are protected.
I say thank you to the Senator from Colorado; my senior colleague,
who has led this effort from Oregon; my colleague from New Mexico, who
is the Acting President pro tempore; and the chairwoman from
California.
Mrs. FEINSTEIN. Mr. President, I thank my colleagues very much. I
believe this concludes our colloquy.
I thank the Acting President pro tempore, and we yield the floor.
Mr. CARDIN. Mr. President, I rise to explain why I voted against the
motion to invoke cloture on S. 990, the legislative vehicle for S.
1038, the reauthorization of the USA PATRIOT ACT. I opposed cloture
because I believe the Senate has an obligation to consider substantive
amendments to improve the PATRIOT Act.
We are all aware that at the end of this week three provisions of the
PATRIOT Act will expire. The three provisions are business records,
roving wiretaps, and ``lone wolf'' terrorists.
I understand there is a delicate balance we must strike here between
preventing and disrupting future terrorist attacks in the United States
and protecting our cherished constitutional rights and civil liberties.
We must make sure that our law enforcement and intelligence
professionals have the tools they need at their disposal to stop future
terrorist attacks. At the same time, we must insure that our government
uses our scarce resources wisely, and that it safeguards the very
rights and liberties that are guaranteed by our Constitution to all
Americans.
The current legislation before the Senate simply extends the existing
PATRIOT Act authorities for 4 more years, until 2015, without any
changes to the authorities given to the government or oversight of
their use by Congress and the courts.
I think we can improve this legislation, as Congress seeks to strike
the proper balance that I have mentioned. I have studied this issue
closely as the former chairman of the Terrorism and Homeland Security
Subcommittee of the Senate Judiciary Committee. The Judiciary Committee
has held numerous hearings on the implementation of the new PATRIOT Act
authorities. We have received testimony from government witnesses,
including the inspector general of the Justice Department, on the
improper use of some of the PATRIOT Act authorities, and
recommendations to improve the PATRIOT Act.
Congress put these sunsets into this law for a reason. I have
supported these sunsets for the PATRIOT Act and the FISA Amendments
Act. A sunset means that a law will not just continue on autopilot
without any changes. Congress uses sunsets when giving extraordinary
authorities to the executive branch so that we have a check and balance
on the use of this power by the government. The separation of powers
also gives the courts a large role in reviewing and approving certain
government investigatory and surveillance activity under the PATRIOT
Act.
A sunset means that the executive branch has to come back to Congress
and ask for an extension of authority. Congress then has a
responsibility to look at how the law has been carried out, and make
any needed improvements in the law, before again extending the
authorities in the law.
Without any action by Congress, a sunset leads to the expiration of
the law in question, as the authorities in the law will lapse. As a
result, when sunsets are involved I have found the executive branch is
more forthcoming with Congress in terms of sharing information and
providing classified
[[Page S3371]]
briefings to Congress on how they use the authorities in question.
That is why I voted to oppose cloture. The Senate should have the
ability to consider substantive amendments to the PATRIOT Act, and not
simply extend the authorities as is, with no changes, for another 4
years.
And the Senate already has a package of reforms ready for
consideration, after careful deliberation in committee. Earlier this
week, I was pleased to cosponsor an amendment offered by the
distinguished chairman of the Judiciary Committee, the Senator from
Vermont, Mr. Leahy. In the 111th Congress, I was also pleased to
cosponsor similar legislation offered by Chairman Leahy. The Senate
Judiciary Committee favorably reported this legislation to the full
Senate in March 2011, as S. 193, the USA PATRIOT Act Sunset Extension
Act of 2011.
Broadly speaking, the Leahy amendment would increase judicial and
congressional review of surveillance authorities that sweep in U.S.
citizens, and would expand oversight and public reporting to ensure
that Americans can monitor the use of these authorities.
The Leahy amendment requires the government to meet a higher burden
of proof when seeking business records from Americans, under the so-
called section 215 orders. The amendment would require the government
to show that the documents sought are relevant to an authorized
investigation and are linked to a foreign group or foreign power.
Current law merely requires the government to show the records are
relevant to an authorized investigation. Under the amendment, the
government must meet an even higher burden of proof to obtain
bookseller or library records.
The Leahy amendment also makes it easier for Americans to challenge
the government when business records are sought. The amendment strikes
the 1-year waiting period before a recipient can challenge a
nondisclosure order for section 215 orders, and also strikes the
conclusive presumption in favor of the government on nondisclosure of
such an order.
For the first time, this Leahy amendment would also write into law a
sunset provision and greater oversight of the use of national security
letters, NSLs, by the government. This would therefore add a fourth
sunset to the PATRIOT Act. This provision would shift the burden to the
government to seek a court order for an NSL nondisclosure order, and
allows the recipient of such an order to challenge it at any time.
Under the Leahy amendment, Congress will require a new series of
audits to ensure protection of privacy and vigorous oversight of the
new authorities given to the government. The Justice Department
inspector general would conduct audits of the use of three surveillance
tools: orders for tangible things; pen registers and trap and trace
devices; and NSLs. The scope of such audits includes a comprehensive
analysis of the effectiveness and use of the investigative authorities
provided to the government, including any improper or illegal use of
such authorities.
Finally, the Leahy amendment requires enhanced court review and
oversight of minimization procedures, which are designed to protect the
privacy of innocent and law-abiding Americans. The amendment requires
increased public reporting on the use of NSL's and FISA authorities by
the government, including an annual unclassified report on how FISA
authorities are used and their impact on the privacy of United States
persons.
We now approach the 10th anniversary of the 9/11 terrorist attacks on
this Nation. The United States recently conducted a military and
intelligence operation which led to the killing of the al-Qaida
mastermind of the attacks, Osama bin Laden. America still faces threats
to its security every day, and I thank our brave men and women in the
United States military and our intelligence community for working
tirelessly to keep America safe.
In my view, the Leahy amendment strikes the proper balance of giving
our law enforcement and intelligence professionals the tools they need
to prevent and disrupt future terrorist attacks, while simultaneously
protect our civil liberties. The amendment includes important new
protection for law-abiding Americans, and requires more vigorous
oversight by Congress and the courts as the government uses these new
powers.
Although I hope that the Leahy amendment will still be made in order,
it is important that we do not allow the PATRIOT Act authorities to
expire. It is important for our law enforcement and intelligence
agencies to have these tools at their disposal as they seek to prevent
and disrupt future terrorist attacks in the United States.
Mr. RUBIO. Mr. President, the PATRIOT Act has been an indispensable,
life-saving tool for the law enforcement and intelligence communities
that work tirelessly to protect our Nation from terrorist attacks. In
these dangerous times, the PATRIOT Act should give a little more peace
of mind to millions of Americans and give those seeking to do us harm
good reason to rethink their diabolical plans.
Earlier this year, I voted to extend the PATRIOT Act. Today, I
reaffirm my support for reauthorizing key PATRIOT Act provisions for an
additional 4 years.
Our Nation's security has and will always be a top priority for me.
As a member of the Senate's Select Committee on Intelligence, I am
aware of the constant threat our Nation faces from terrorists and
individuals who hate us and want to impose their radical view of the
world at all costs. Any changes or limits on the PATRIOT Act would only
give these extremists an opening to strike us.
While some may disagree on this issue, I simply cannot allow those
tasked with protecting our people from being deprived of these vital,
lawful means to help prevent an attack.
Mr. LEAHY. Mr. President, I am disappointed that we have not been
able to work out an agreement that will allow consideration of my
amendment to the pending USA PATRIOT Act sunset extension legislation.
I think that a bipartisan majority of the Senate would have supported
our improvements. We have missed an opportunity to move forward to help
keep our Nation secure while also strengthening our commitment to our
core constitutional principles of individual liberty and privacy.
The amendment I sought to offer represented a commonsense and
reasonable package of reforms that would have improved the law,
expanded civil liberties and privacy protections, and better ensured
proper oversight and accountability. This amendment earned the
cosponsorship of Senator Paul and a dozen others since we began debate
on Monday, including Senators Cardin, Bingaman, Coons, Shaheen, Wyden,
Franken, Gillibrand, Harkin, Durbin, Merkley, Boxer, and Akaka. I thank
these Senators for recognizing that the Senate should do better than
merely extend the expiring provisions of the USA PATRIOT Act for
another 4 to 6 years without a single improvement or reform.
Over the past 2 years, the Senate Judiciary Committee has diligently
considered how to make improvements to current law. The language in our
amendment was the product of more than a year and a half of extensive
negotiations with Republicans and Democrats, the intelligence
community, and the Department of Justice. The committee reported a
bipartisan bill last Congress and another similar bill in the current
Congress. The bipartisan amendment that we sought to bring to the
Senate preserved the ability of the government to use the PATRIOT Act
surveillance tools, while promoting transparency, accountability, and
oversight. It was not everything that everyone wanted but it was a
commonsense package of improvements that should have been adopted.
The Attorney General and others have repeatedly assured us that the
measures to enhance oversight and accountability, such as audits and
public reporting, would not sacrifice ``the operational effectiveness
and flexibility needed to protect our citizens from terrorism'' or
undermine ``the collection of vital foreign intelligence and
counterintelligence information.'' In fact, the Attorney General has
consistently said that the Senate Judiciary Committee-passed bill
struck ``a good balance'' by extending PATRIOT Act authorities while
adding accountability and civil liberties protections.
One of the improvements we need to make is to repair a constitutional
infirmity in the current law. The so-
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called Doe v. Mukasey fix is needed to address a first amendment
problem with the national security letter statutes, and should not have
been controversial in any way. Similarly, no one can seriously contend
that periodic audits by an inspector general of past operations
presented any operational concerns to law enforcement or intelligence
gathering. These are vital oversight tools that everyone should have
supported.
As it stands now, the extension of the PATRIOT Act provisions does
not include a single improvement or reform, and includes not even a
word that recognizes the importance of protecting the civil liberties
and constitutional privacy rights of Americans. We could have provided
the necessary tools to law enforcement and the intelligence community,
but could have done so while faithfully performing our duty to protect
the constitutional principles and civil liberties upon which all
American rely.
Today's Washington Post included an editorial that urged the Senate
to extend the PATRIOT Act authorities but also to include ``additional
protections meant to ensure that these robust tools are used
appropriately.'' The editorial observed that the bill ``would be that
much stronger'' if it included the oversight and auditing requirements
included in our amendment. That is why Senator Paul and a dozen other
Senators had sponsored the amendment. That is why Senator Lee voted for
them this year in the Judiciary Committee. And I would note that
Senator Kyl and Senator Cornyn supported them in the last Congress.
I ask unanimous consent to have printed in the Record a copy of
today's editorial from the Washington Post entitled, ``A Chance to Put
Protections in the PATRIOT Act.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, May 25, 2011]
A Chance to Put Protections in the Patriot Act
(By the Editorial Board)
Congress appears poised to renew important counterterrorism
provisions before they are to expire at the end of the week.
That much is welcome. But it is disappointing that lawmakers
may extend the Patriot Act measures without additional
protections meant to ensure that these robust tools are used
appropriately.
The Patriot Act's lone-wolf provision allows law
enforcement agents to seek court approval to surveil a non-
U.S. citizen believed to be involved in terrorism but who may
not have been identified as a member of a foreign group. A
second measure allows the government to use roving wiretaps
to keep tabs on a suspected foreign agent even if he
repeatedly switches cellphone numbers or communication
devices, relieving officers of the obligation of going back
for court approval every time the suspect changes his means
of communication. A third permits the government to obtain a
court order to seize ``any tangible item'' deemed relevant to
a national security investigation. All three are scheduled to
sunset by midnight Thursday.
House and Senate leaders have struck a preliminary
agreement for an extension to June 2015 and may vote on the
matter as early as Thursday morning. This agreement was not
easy to come by. Several Republican senators originally
wanted permanent extensions--a proposition rebuffed by most
Democrats and civil liberties groups. In the House,
conservative Tea Party members, who worried about handing the
federal government too much power, earlier this year bucked a
move that would have kept the provisions alive until
December. Congressional leaders were forced to piece together
short-term approvals to keep the tools from lapsing.
The compromise four-year extension is important because it
gives law enforcement agencies certainty about the tools'
availability. But the bill would be that much stronger if
oversight and auditing requirements originally included in
the version from Sen. Patrick J. Leahy (D-Vt.) were permitted
to remain. Mr. Leahy's proposal, which won bipartisan
approval in the Senate Judiciary Committee, required the
attorney general and the Justice Department inspector general
to provide periodic reports to congressional overseers to
ensure that the tools are being used responsibly. Mr. Leahy
has crafted an amendment that includes these protections, but
it is unlikely that the Senate leadership will allow its
consideration.
At this late hour, it is most important to ensure that the
provisions do not lapse, which could happen as a result of a
dispute between Senate Majority Leader Harry M. Reid (D-Nev.)
and Sen. Rand Paul (R-Ky.) over procedural issues. If time
runs out for consideration of the Leahy amendment, Mr. Leahy
should offer a stand-alone bill later to make the reporting
requirements the law.
The ACTING PRESIDENT pro tempore. The Senator from Oregon is
recognized.
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