[Congressional Record (Bound Edition), Volume 150 (2004), Part 5]
[Senate]
[Pages 6748-6764]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                SAFE ACT

  Mr. DURBIN. Mr. President, I rise today to urge my colleagues to 
cosponsor S. 1709, the Security and Freedom Ensured Act, the SAFE Act, 
which Senator Larry Craig and I have introduced with several of our 
colleagues from both sides of the aisle.
  The SAFE Act is a narrowly tailored bill that would revise several 
provisions of the USA PATRIOT Act. It would safeguard the rights of 
innocent Americans without impeding law enforcement's ability to fight 
terrorism. The SAFE Act is supported by a broad coalition of 
organizations and individuals from across the political spectrum.
  I challenge any of my colleagues to find the broad base of political 
support for virtually any bill that we have found for the SAFE Act.
  I voted for the PATRIOT Act. I believed then and I still believe that 
the act made many reasonable and necessary changes in the law. However, 
the PATRIOT Act contains several provisions that do not adequately 
protect innocent Americans from unwarranted Government surveillance. 
The FBI now has broad authority to obtain a ``John Doe'' roving wiretap 
which does not identify the person or place being tapped. The FBI has 
authority now to conduct sneak-and-peek searches and to seize personal 
records.
  The PATRIOT Act was passed at a critical moment in the history of the 
United States. It was a moment of tragedy and fear. Now with more than 
2 years of hindsight and experience, it is time to revisit this law.
  I can recall--and I am sure all who followed this debate can 
remember--how we felt after September 11. Just a few steps away from 
this Chamber, I was meeting in a room with Senator Daschle and a group 
of Senators and we saw on television the images which every American 
has seared in their memory. Then someone suggested a bomb had gone off 
at the Pentagon. We gathered by the windows and looked down this 
beautiful Mall toward the Washington Monument and saw black smoke 
billowing across the Potomac, unaware at that moment another airplane 
had struck that building, killing many innocent Americans.
  It was a time of great concern and great anxiety and great unity. The 
administration came to us and said to the Congress, Give us the tools 
to find the people responsible for this terrible American tragedy. Give 
us what we need to protect Americans and to fight the war on terrorism.
  In a rare showing of bipartisan support, Democrats and Republicans 
came together and addressed some of the most difficult and complicated 
questions about Government authority and individual freedom we have had 
to address in our history. I am proud to say in a short period of time 
there was a bipartisan consensus, a consensus which tried to work out 
the best way to meet the requirements of the administration and to make 
America safe.
  Many of these provisions were worrisome. We were not certain whether 
we had gone too far in giving the Government more authority and 
Americans fewer freedoms than necessary. So we included in the PATRIOT 
Act sunset provisions. Basically, what that means is that over some 
period of time, a year or two, these provisions would expire and be 
subject to renewal and reapproval by Congress. Of course, at that point 
we would be forced to assess their impact.
  Interestingly, since that day, from some quarters, the volume has 
grown in support of basically eliminating the sunset provisions and 
saying this will be permanent law and we will not revisit it. However, 
many have looked at the PATRIOT Act, including Senator Craig and 
myself, and feel there are four specific areas of the Act that should 
be amended by our SAFE Act. Senator Craig, a Republican, and myself, as 
a Democrat, reached across the partisan divide to work together on this 
bill. It is quite an unusual political marriage. Senator John Sununu,

[[Page 6749]]

also a cosponsor, joked that when Senator Craig and Senator Durbin 
introduce a bill together, it proves one thing: One of them must not 
have read it.
  Well, that is not true. We have both read the SAFE Act. Our 
cooperation on this piece of legislation speaks volumes about the need 
to make changes in the PATRIOT Act.
  Some claim because we are at war, the American people want the 
Government to keep them safe, no matter what. I think they are wrong. 
The American people care very deeply about their freedoms. They are 
watching Congress carefully and they are concerned that perhaps in some 
areas we went too far in passing the PATRIOT Act. I have heard from a 
lot of my constituents. 275 communities in 39 states have passed 
resolutions expressing concern about the provisions of the PATRIOT Act. 
These communities represent close to 50 million Americans. Almost one 
out of every six Americans has, through their elected representatives 
in their communities, expressed some concern about the provisions of 
the PATRIOT Act.
  Let me be very frank about the bill itself. The PATRIOT Act was over 
130 pages long. It is very complicated. Most Americans have not read 
every word of it. Many Americans who may not be able to explain the 
exact details of the PATRIOT Act still are concerned it is restricting 
their freedoms unnecessarily.
  Some argue this means we should not take the American people so 
seriously because they cannot cite specific sections of the bill. I 
disagree. There is no reason to dismiss these public concerns. And this 
is no excuse for inaction. The burden of proof is not on the American 
people when the Government seeks to take away their rights and 
liberties. The burden of proof is on the Government.
  What is clear is the American people want us to strike a balance, 
give the FBI and law enforcement and intelligence agencies the powers 
they need to fight terrorism but also to protect American liberty. That 
is what the SAFE Act would do.
  An unusual thing has occurred with the introduction of this bill. I 
have been on Capitol Hill for over two decades working in the House and 
in the Senate. I have never seen this happen before. The Bush 
administration announced with the introduction of the bill they would 
veto it. The bill has not been considered before a committee. It has 
not been subject to amendment in committee. It has not been debated in 
committee. It has not come to the floor of the House or the Senate, nor 
has it been subject to debate and amendment there. There is no final 
work product, only the initial offering by Senator Craig and myself.
  Based on that and that alone, the Bush administration has said they 
are going to oppose this bill and they are going to veto this bill. I 
have never seen anything quite like that.
  The Justice Department argues our bill would eliminate some PATRIOT 
Act powers and make it even more difficult to effectively fight 
terrorism. Frankly, these objections do not hold water. The SAFE Act 
neither repeals any provision of the PATRIOT Act nor amends pre-PATRIOT 
Act law. In fact, the SAFE Act retains the expanded powers created by 
the PATRIOT Act while placing important checks on these powers.
  Senator Craig and I wrote a letter responding in detail to the 
Justice Department's objections to the bill and their threat to veto 
the bill, which has not even passed either the House or the Senate.
  I ask unanimous consent that this letter be printed in the Record.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                Washington, DC, February 23, 2004.
     Hon. Orrin G. Hatch,
     Chairman, Senate Committee on the Judiciary, Hart Senate 
         Office Building, Washington, DC.
       Dear Mr. Chairman: We write to request that you schedule a 
     hearing in the Judiciary Committee as soon as possible on S. 
     1709, the Security and Freedom Ensured (SAFE) Act, a 
     narrowly-tailored, bipartisan bill that would amend several 
     provisions of the USA PATRIOT Act (P.L. 107-56). We would 
     also like to take this opportunity to respond to concerns the 
     Justice Department has raised regarding the SAFE Act.
       We voted for the PATRIOT Act and believe now, as we did 
     then, that the PATRIOT Act made many reasonable and necessary 
     changes in the law. However, the PATRIOT Act contains several 
     provisions that create unnecessary risks that the activities 
     of innocent Americans may be monitored without adequate 
     judicial oversight.
       This concern is shared by a broad coalition of 
     organizations and individuals from across the political 
     spectrum. In fact, 257 communities in 38 states--representing 
     approximately 43.5 million people--have passed resolutions 
     opposing or expressing concern about the PATRIOT Act. Groups 
     as politically diverse as the ACLU and the American 
     Conservation Union have also endorsed changes in the law.
       In his State of the Union address, the President called for 
     reauthorization of the PATRIOT Act. Given the bipartisan 
     concerns about the most controversial provisions of the law, 
     however, this will not happen unless these provisions are 
     revisited. Congress, in fact, made oversight of the PATRIOT 
     Act implicit by sunsetting over a dozen sections of the bill 
     at the time of its passage.
       S. 1709, the SAFE Act, was drafted with this oversight in 
     mind. It was drafted to clarify and amend in a minor way the 
     PATRIOT Act's most troubling provisions so that whole or even 
     piecemeal repeal of the law would be unnecessary. It was 
     drafted to safeguard the liberties of law-abiding citizens 
     while preserving the law enforcement authorities essential to 
     a successful war on terror.
       The Administration unfortunately has threatened to veto the 
     SAFE Act. The Justice Department argues that the SAFE Act 
     would ``eliminate'' some PATRIOT tools and ``make it even 
     more difficult to mount an effective anti-terror campaign 
     than it was before the PATRIOT Act was passed.''
       We respectfully disagree with the Justice Department's 
     objections to our reasoned and measured effort to mend the 
     PATRIOT Act. The SAFE Act neither repeals any provision of 
     the PATRIOT Act, nor impedes law enforcement's ability to 
     investigate terrorism by amending pre-PATRIOT Act law. 
     Rather, the SAFE Act retains the expanded powers created by 
     the PATRIOT Act while restoring important checks and balances 
     on powers including roving wiretaps, ``sneak and peek'' 
     warrants, compelled production of personal records, and 
     National Security Letters.


                            Roving Wiretaps

       The SAFE Act would place reasonable checks on the use of 
     roving wiretaps for intelligence purposes. Normally, when the 
     government seeks a warrant authorizing a wiretap, its 
     application must specify both the target (the individual) and 
     the facilities (the telephone or computer) that will be 
     tapped. Roving wiretaps, which do not require the government 
     to specify the facilities to be tapped, are designed to allow 
     law enforcement to tract targets who evade surveillance by 
     frequently changing facilities. Before the PATRIOT Act, 
     roving wiretaps were only permitted for criminal, not 
     intelligence, investigations. The PATRIOT Act authorized the 
     FBI to use roving wiretaps for intelligence purposes for the 
     first time.
       Using roving wiretaps for intelligence purposes is 
     important. Unfortunately, the PATRIOT Act did not include 
     sufficient checks to protect innocent Americans from 
     unwarranted government surveillance. Under the PATRIOT Act, 
     the FBI is not required to determine whether the target of 
     the wiretap is present at the place being wiretapped, as it 
     is for criminal wiretaps.
       The Intelligence Authorization Act of 2002 made another 
     dramatic change in the law. The FBI is now permitted to 
     obtain a ``John Doe'' roving wiretap for intelligence 
     purposes, an authority not authorized in any other context. A 
     ``John Doe'' roving wiretap does not specify the target of 
     the wiretap or the place to be wiretapped. In other words, 
     the FBI can obtain a wiretap without saying whom they want to 
     wiretap or where they want to wiretap.
       The Justice Department defends this authority by noting 
     that even if the target of the wiretap is not identified, a 
     description of the target is required. The law does not 
     require the description to include any specific level of 
     detail, however. It could be as broad as, for example, 
     ``white man'' or ``Hispanic woman.'' Such a general 
     description does not adequately protect innocent Americans 
     from unwarranted government surveillance.
       The SAFE Act would retain the PATRIOT Act's authorization 
     of roving wiretaps for intelligence purposes but impose 
     reasonable limits on this authority. Law enforcement would be 
     required to ascertain the presence of the target before 
     beginning surveillance and identify either the target of the 
     wiretap or the place to be wiretapped. The FBI would not be 
     able to obtain ``John Doe'' roving wiretaps, thereby ensuring 
     that the government does not surveil innocent Americans who 
     are not the target of the wiretap.
       The Justice Department argues that ``John Don'' roving 
     wiretaps are necessary because there may be circumstances 
     where the government knows a target's physical description 
     but not his identity. If the government

[[Page 6750]]

     is tracking a suspect closely enough to utilize a wiretap, it 
     is unlikely his or her identity will be unknown to them. In 
     this unusual circumstance, the SAFE Act would permit the 
     issuance of a ``John Doe'' wiretap which would not identify 
     the target but rather the facilities to be wiretapped. If the 
     government wished to obtain a roving wiretap, they could do 
     so by identifying the target. It is important to note that 
     the government is not required to identify the target by his 
     or her actual name. The government, for example, could 
     identify the target by an alias. This level of detail should 
     be required to make clear who is being targeted to prevent 
     innocent people with no relationship to the target from being 
     spied upon.


                      ``sneak and peek'' searches

       The SAFE Act would impose reasonable limits on the issuance 
     of delayed notification (or ``sneak and peek'') search 
     warrants. A sneak and peek warrant permits law enforcement to 
     conduct a search without notifying the target until sometime 
     after the search has occurred. The Justice Department argues 
     that sneak and peek warrants for physical evidence ``had been 
     available for decades before the PATRIOT Act was passed,'' 
     but such warrants were never statutorily authorized before 
     the passage of the PATRIOT Act. Too, though some courts have 
     permitted sneak and peek warrants in limited circumstances, 
     the Supreme Court has never ruled on their constitutionality.
       In codifying sneak and peek warrants, Section 213 of the 
     PATRIOT Act did not adopt limitations on this authority that 
     courts had recognized. For example, courts have required a 
     presumptive seven-day limit on the delay of notice. Section 
     213 requires notice of the search within ``a reasonable 
     period,'' which is not defined. According to the Justice 
     Department, this has resulted in delays of up to 90 days, and 
     of ``unspecified duration lasting until the indictment was 
     unsealed.''
       Section 213 authorizes issuance of a sneak and peek warrant 
     where it finds that providing immediate notice of the warrant 
     would have an ``adverse result,'' as defined by 18 U.S.C. 
     Section 2705. Section 2705, which allows delayed notice for 
     searches of stored wire and electronic communications, 
     defines adverse result very broadly, including any 
     circumstances ``otherwise seriously jeopardizing an 
     investigation or unduly delaying a trial.'' This catch-all 
     provision could arguably apply in almost every case. A sneak 
     and peek search of a home involves a much greater degree of 
     intrusiveness than a seizure of wire or electronic 
     communications, so this broad standard for delaying notice is 
     inappropriate. Section 213 also does not limit delayed 
     notification warrants to terrorism investigations, and unlike 
     many surveillance-related PATRIOT Act provisions, does not 
     sunset.
       Last year, an overwhelming majority in the House of 
     Representatives voted to repeal Section 213. The SAFE Act 
     would not go nearly this far. It would place modest limits on 
     the government's ability to obtain sneak and peek warrants, 
     while still permitting broad use of this authority.
       The SAFE Act would still authorize a sneak and peek warrant 
     in a broad set of specific circumstances: where notice of the 
     warrant would endanger the life or physical safety of an 
     individual, result in flight from prosecution, or result in 
     the destruction of or tampering with the evidence sought 
     under the warrant. Importantly, it would eliminate the catch-
     all authorization of sneak and peek authority in any 
     circumstances ``otherwise seriously jeopardizing an 
     investigation or unduly delaying a trial.'' It would require 
     notification of a covert search within seven days, but would 
     authorize unlimited additional seven-day delays so long as 
     any circumstance that would justify a delay of notice 
     continues to exist. According to the Justice Department, 
     ``the most common period of delay'' under Section 213 is 
     seven days, so a seven-day limit with court-authorized 
     extensions is not overly onerous but would prevent abuse.
       The Justice Department states that the SAFE Act imposes 
     restrictions on the issuance of sneak and peek warrants that 
     could tip off terrorists, and ``thus enable their associates 
     to go into hiding, flee, change their plans, or even 
     accelerate their plots.'' To the contrary, the SAFE Act would 
     authorize issuance of a sneak and peek warrant in all of 
     these circumstances. If notice of the warrant could lead 
     terrorists or their associates to hide or flee, a court could 
     delay notice to prevent flight from prosecution. If notice of 
     the warrant could lead terrorists or their associates to 
     change or accelerate their plots, a court could delay notice 
     to prevent the resulting danger to life or physical safety. 
     The Constitution protects the sanctity of our homes, and we 
     should only allow this sanctity to be breached in such 
     serious circumstances.


                Compelled Production of Personal Records

       The SAFE Act would place reasonable checks on the 
     government's authority to compel production of library and 
     other personal records. Section 215 of the PATRIOT Act 
     permits law enforcement to obtain such records without 
     individualized suspicion and with minimal judicial oversight. 
     Before the PATRIOT Act, FISA authorized the FBI to seek a 
     court order for the production of records from four types of 
     businesses: common carriers, public accommodations 
     facilities, physical storage facilities, and vehicle rental 
     facilities. In order to obtain such records, the FBI was 
     required to state specific and articulable facts showing 
     reason to believe that the person to whom the records relate 
     was a terrorist or a spy. If a court found that there were 
     such facts, it would issue the order.
       Under FISA as modified by Section 215, the FBI is 
     authorized to compel production of ``any tangible things 
     (including books, records, papers, documents, and other 
     items)'' not just records, from any entity, not just the four 
     types of businesses previously covered. The FBI is only 
     required to certify that the records are ``sought for'' an 
     international terrorism or intelligence investigation, a 
     standard even lower than relevance. The FBI need not show 
     that the documents relate to a suspected terrorist or spy. If 
     the FBI makes the required certification, the court no longer 
     has the authority to examine the accuracy of the 
     certification or ask for more facts to support it; the court 
     ``shall'' issue the order. Defenders of Section 215 
     frequently assert that the issuance of an order for records 
     requires court approval, but this type of court approval 
     amounts to little more than a rubber stamp. The PATRIOT Act 
     gives the government too much power to seize the personal 
     records of innocent Americans who are not suspected of 
     involvement in terrorism or espionage.
       The SAFE Act retains the PATRIOT Act's expansion of the 
     business records provision to cover ``any tangible things'' 
     and any entity. It would reinstate the pre-PATRIOT Act 
     standard for compelling production of business records, which 
     requires individualized suspicion. The FBI would be required 
     to certify that there are specific and articulable facts 
     giving reason to believe that the person to whom the records 
     relate is a terrorist or a spy. A court would be required to 
     issue the order if it found that there are such facts. The 
     SAFE Act would thus prevent broad fishing expeditions which 
     waste scarce government resources, are unlikely to produce 
     useful information, and can infringe upon privacy rights.
       The Justice Department argues that this standard is 
     inappropriate because it is higher than the relevance 
     standard under which federal grand juries can subpoena 
     records. This ignores some crucial distinctions. The 
     recipient of a grand jury subpoena can challenge the subpoena 
     in court and tell others, including those whose records are 
     sought, about the subpoena. In contrast, the recipient of a 
     Section 215 subpoena cannot challenge the subpoena in court 
     and is subject to a gag order. The scope of a federal grand 
     jury is limited to specific crimes, while an intelligence 
     investigation is not so limited.
       Finally, it is very important to note that, in the more 
     than two years since the passage of the PATRIOT Act, Section 
     215 has never been used. If the authority has never been used 
     during this time of great national peril, it is difficult to 
     understand how imposing some reasonable checks on it could 
     cripple the war on terrorism. Indeed, the government offers 
     no examples, real or imagined, in which the SAFE Act's 
     revisions of Section 215 would hinder counterterrorism 
     efforts.


                       national security letters

       The SAFE Act would impose reasonable limits on the issuance 
     of National Security Letters (NSLs). Section 505 of the 
     PATRIOT Act allows the FBI to use NSLs to obtain personal 
     records without individualized suspicion. An NSL is a 
     document signed by an FBI agent requiring disclosure of 
     financial, credit and other personal information and 
     requiring the recipient not to disclose the request to the 
     individual whose records are being sought. It does not 
     require judicial or grand jury approval.
       Before the PATRIOT Act, the FBI could issue an NSL to 
     obtain records from a wire or electronic communication 
     service provider by certifying that it had reason to believe 
     that the person to whom the records relate is a terrorist or 
     a spy. The approval of FBI headquarters was required.
       Section 505 of the PATRIOT allows the FBI to issue an NSL 
     simply by certifying that the records are ``sought for'' a 
     terrorism or intelligence investigation, regardless of 
     whether the target is a suspect. Headquarters approval is no 
     longer required. Unlike many other surveillance-related 
     PATRIOT Act provisions, the expanded NSL authority does not 
     sunset.
       The SAFE Act would retain the PATRIOT Act's lower standard 
     for the issuance of NSLs and its delegation of issuing 
     authority to field offices. It would simply clarify that a 
     library is not a ``wire or communication service provider,'' 
     which from the plain meaning of the words, it is not. The FBI 
     could still obtain information regarding e-mails or other 
     communications that took place at libraries by issuing an NSL 
     to the library's wire or communication service provider.
       The Justice Department states that the SAFE Act would 
     ``extend a greater degree of privacy to activities that occur 
     in a public place than to those taking place in the home.'' 
     We disagree. The SAFE Act would simply ensure that the FBI 
     issues the NSL to the service provider, which is the 
     appropriate recipient, rather than a community library, which 
     is ill-equipped to respond to such a request.

[[Page 6751]]




                      expanding the sunset clause

       The SAFE Act would expand the sunset clause of the PATRIOT 
     Act to ensure Congress has an opportunity to review 
     provisions of the bill that greatly expand the government's 
     authority to conduct surveillance on Americans. Many of the 
     PATRIOT Act's surveillance provisions sunset on December 31, 
     2005. The SAFE Act would sunset four additional surveillance 
     provisions: Sections 213, 216, 219, and 505.
       We have already discussed Sections 213 (sneak and peek 
     warrants) and 505 (national security letters). Section 216 
     allows the use of surveillance devices known as pen registers 
     and trap and trace devices to gather transactional 
     information about electronic communications (e.g., e-mail) if 
     the government certifies the information likely to be 
     gathered is ``relevant'' to an ongoing criminal 
     investigation. The information the government gathers is 
     ``not to include the contents'' of communications, but 
     content is not defined. Section 219 permits a federal judge 
     in any district in the country in which ``activities related 
     to terrorism may have occurred'' to issue a nationwide search 
     warrant in a terrorism investigation. The target of such a 
     search warrant has no ability to challenge the warrant in 
     their home district. The SAFE Act would simply give Congress 
     an opportunity to assess the effectiveness of these four 
     provisions before deciding whether or not to reauthorize 
     them.
       The Justice Department argues that Congress should not 
     expand the sunset to these authorities because they will all 
     be needed by the FBI for ``the foreseeable future.'' Even if 
     this is true, it is no reason not to give Congress the chance 
     to review the usefulness of these powers. If they are needed 
     for the fight on terrorism, we will surely renew them.
       Throughout American history, during times of war, civil 
     liberties have been restricted in the name of security. We 
     therefore have the responsibility to proceed cautiously. 
     During the Civil War, President Lincoln suspended habeas 
     corpus, and during World War II, President Roosevelt ordered 
     the detention of Japanese Americans in internment camps. We 
     must be vigilant in our defense of our freedoms. But we also 
     must ensure that law enforcement has sufficient authority to 
     combat the grave threat of terrorism. We must strike a 
     careful balance between the law enforcement power needed to 
     combat terrorism and the legal protections required to 
     safeguard American liberties. That is what the SAFE Act would 
     do.
       While we are disappointed that the Administration has 
     expressed disagreement with the SAFE Act, we view this as an 
     opportunity for increased public discussion of one of the 
     most important issues of our day. Accordingly, we request 
     that you schedule a hearing on the SAFE Act as soon as 
     possible. Thank you for your time and consideration.
           Sincerely,
     Larry E. Craig,
       U.S. Senator.
     Richard J. Durbin
       U.S. Senator.

  Mr. DURBIN. Mr. President, let me cut through some of the rhetoric 
and tell you what the SAFE Act does.
  The SAFE Act would place reasonable checks on what are known as 
roving wiretaps. Typically, when the Government seeks a warrant 
authorizing a wiretap, its application must specify the individual and 
the phone that will be tapped. A recommendation on roving wiretaps came 
to us in the PATRIOT Act because of the obvious: There was a time and 
place in America when people had one telephone at work, one telephone 
at home, and if the Government sought to tap that telephone to find out 
what was going on, it was pretty obvious which telephone lines needed 
to be tapped. Now we live in a different world where people carry 
around phones in their pockets. People may have several phones.
  So the Government asked for additional authority to focus on those 
who were engaged in telephone conversations on numerous different 
telephone lines. Roving wiretaps do not require the Government to 
specify the phone being tapped. They are designed to allow law 
enforcement to track targets that evade surveillance by frequently 
changing phones.
  Before the PATRIOT Act, they were only permitted for criminal 
investigations, not intelligence investigations. The PATRIOT Act 
authorized the FBI to use roving wiretaps for intelligence purposes for 
the first time. I supported this. I thought it was a reasonable 
expansion of wiretap authority because it is important that 
intelligence investigators have that authority.
  Unfortunately, the PATRIOT Act did not include the same limits on 
these powers that exist for criminal investigations. These limits would 
have protected innocent Americans from unjustified surveillance. It is 
a basic tenet of law that if you are going to tap a conversation, the 
Government has to be specific enough so as to protect innocent people. 
We should not allow the Government at any given time to impose a 
wiretap on a phone that anybody might use. The Government should be 
specific, protecting in the process the privacy of innocent people, 
while clearly targeting those with a wiretap who could be guilty of a 
crime or guilty of activities that are treasonous.
  Under the PATRIOT Act, the FBI is not required to determine whether 
the target of the wiretap is physically present at the location being 
wiretapped before beginning the wiretap, as it is for criminal 
wiretaps. The ascertainment requirement, as it is known, ensures 
innocent Americans are not wiretapped unnecessarily, especially when 
the FBI wiretaps a public telephone.
  The FBI is now permitted to obtain a John Doe roving wiretap for 
intelligence purposes, a sweeping authority never before authorized by 
Congress. A John Doe roving wiretap does not specify the person or the 
phone to be wiretapped. In other words, the FBI can obtain a wiretap 
without telling a court whom they want to wiretap and where they want 
to wiretap. This is a virtually limitless power.
  The SAFE Act, which we have introduced, would continue to authorize 
roving wiretaps for intelligence purposes but would impose reasonable 
limits, the same limits that exist for criminal investigations. Law 
enforcement would be required to determine whether the target of the 
wiretap is physically present before beginning the wiretap. The FBI 
would not be able to obtain ``John Doe'' roving wiretaps. These 
protections would ensure that the Government does not wiretap innocent 
Americans.
  Secondly, the SAFE Act would impose reasonable limits on sneak-and-
peek searches. Sneak-and-peek searches are conducted secretly by the 
FBI with no notice to the target until some time after the search.
  You have all seen the scene on television--maybe you are familiar 
with it from your community--where there is a knock on the door and a 
law enforcement official says: I have a warrant to search your home. 
Well, that is the usual course of events in criminal investigations. It 
is much different when it comes to sneak-and-peek searches.
  The Justice Department argues that warrants for sneak-and-peek 
searches ``had been available for decades before the PATRIOT Act was 
passed,'' but such warrants were never authorized by Congress before 
the passage of the PATRIOT Act. Some courts permitted sneak-and-peek 
warrants in limited circumstances, although the Supreme Court has never 
ruled on their constitutionality.
  In authorizing sneak-and-peek warrants, section 213 of the PATRIOT 
Act did not include checks and limitations on the power of the 
Government so as to protect innocent Americans. Courts have required 
the FBI to notify the target of the search within 7 days of the search. 
Section 213 of the PATRIOT Act, however, requires notice of the search 
only within ``a reasonable period,'' which is not defined. According to 
the Justice Department, this has resulted in delays of notice of up to 
90 days, and of ``unspecified duration.''
  Section 213 authorizes sneak-and-peek searches where a court finds 
that providing immediate notice of the search would have an adverse 
result. ``Adverse result'' is defined broadly. It includes 
circumstances ``seriously jeopardizing an investigation or unduly 
delaying a trial.'' This catch-all provision could arguably apply in 
almost every case.
  Unlike many other PATRIOT Act provisions that give new surveillance 
powers to the FBI, the sneak-and-peek authority does not sunset. It is 
permanent law.
  According to a recent poll, 71 percent of Americans disapprove of the 
current sneak-and-peek provision in the PATRIOT Act. Last year, an 
overwhelming, bipartisan majority in the House of Representatives voted 
to repeal this section of the PATRIOT Act. The SAFE Act that we 
introduce would

[[Page 6752]]

not go nearly that far. It would place reasonable limits on the FBI's 
ability to conduct sneak-and-peek searches, while still permitting 
broad use of this authority.
  The SAFE Act would still authorize sneak-and-peek searches in a broad 
set of specific circumstances. However, it would eliminate the catch-
all provision that allows sneak-and-peek searches in any circumstances.
  The SAFE Act would require notification of a covert search within 7 
days but would authorize a court to allow unlimited additional 7-day 
delays upon application by the Government. According to the Justice 
Department, ``the most common period of delay'' under section 213 is 7 
days, so this limit that we establish is not unreasonable.
  The SAFE Act would also sunset the sneak-and-peek authority, giving 
Congress an opportunity to take a hard look at a provision in the law 
that is so widely unpopular in the United States.
  The third area has received a lot of attention, and it relates to the 
compelled production of library and personal records.
  The SAFE Act would place reasonable limits on the FBI's authority to 
compel production of library and personal records. Before the PATRIOT 
Act, the FBI was authorized to seek a court order for the production of 
records from four types of businesses--common carriers, such as 
airlines and trains and buses; public accommodations, such as hotels 
and restaurants; storage facilities; and car rental companies. In order 
to obtain records, the FBI was required to convince a court it had 
reason to believe that the person to whom the records related was a 
terrorist or a spy.
  Under section 215 of the PATRIOT Act, the FBI can compel production 
of ``any tangible things,'' not just records, from any entity, not just 
the four types of businesses previously covered. The FBI, under the 
PATRIOT Act, is only required to certify that the records are ``sought 
for'' a terrorism or intelligence investigation, a standard even lower 
than relevance. The FBI is not required to show that the documents 
relate to a suspected terrorist or spy.
  Now, those who defend section 215 frequently claim the FBI must 
obtain court approval to compel production of records, but if you read 
section 215, you will see that the type of court approval which is 
authorized is a rubber stamp.
  The PATRIOT Act gives the Government too much power to seize the 
personal records of innocent Americans who are not suspected of 
involvement in any terrorism or espionage. This could lead to broad 
fishing expeditions which waste scarce Government resources, are 
unlikely to produce useful information, and can infringe upon privacy 
rights.
  The SAFE Act would retain the PATRIOT Act's expansion of the records 
provision to cover ``any tangible things,'' as I said earlier, and any 
entity. But it would reinstate the pre-PATRIOT Act standard for 
obtaining records, which requires individualized suspicion and 
increased judicial oversight. The FBI would be required to convince a 
court that it has reason to believe that the person to whom the records 
relate is a terrorist or a spy. This would protect innocent Americans 
and prevent fishing expeditions by the Government.
  It is very important to note that in the more than 2 years since the 
passage of the PATRIOT Act, section 215--compelling records, as I have 
described--has never been used. If the authority has never been used 
during this time of great national concern and peril, it is difficult 
to understand how imposing some reasonable checks could harm the war on 
terrorism.
  The fourth and last section of the SAFE Act relates to national 
security letters. The SAFE Act would impose reasonable limits on the 
issuance of these letters. An NSL, as they are known, is a document 
signed by an FBI agent requiring disclosure of financial, credit, or 
other personal information. It can be issued to a wire or electronic 
communication provider. The recipient of an NSL is subject to a gag 
order and cannot disclose the request to the individual whose records 
are being sought. An NSL does not require judicial or grand jury 
approval.
  Before the PATRIOT Act, the FBI could issue such a letter to obtain 
records by certifying it had reason to believe that the person to whom 
the records relate is a terrorist or spy. The approval of FBI 
headquarters was required.
  Section 505 of the PATRIOT Act allows the FBI to issue a national 
security letter by certifying that the records are ``sought for'' a 
terrorism or intelligence investigation, regardless of whether the 
target is a suspect. FBI headquarters approval is no longer required.
  Unlike many other surveillance-related PATRIOT Act provisions, this 
expanded NSL authority does not sunset under the law of the PATRIOT 
Act.
  The SAFE Act would retain the PATRIOT Act's lower standard for the 
issuance of NSLs and its delegation of issuing authority to FBI field 
offices.
  It would simply clarify that a library is not a ``wire or 
communication service provider,'' which, from the plain meaning of the 
words, it is not. The FBI could still obtain information regarding e-
mails and other communications originating from library computers by 
issuing a national security letter to the library's wire or 
communication service provider.
  The SAFE Act would simply ensure that the FBI issues the national 
security letter to the service provider, which is the appropriate 
recipient, rather than a community library, which is not equipped to 
respond to such a request.
  We would also sunset this NSL authority, giving Congress another 
opportunity to take a look at it.
  We have the responsibility to give the Government the power it needs 
to keep us safe, but at the same time we have a responsibility to the 
Constitution, which we have all sworn to uphold and defend, to 
zealously protect the personal freedoms and liberties of American 
citizens.
  Geoffrey Stone, a professor and former dean at the University of 
Chicago Law School, made this observation:

       In time of war . . . we respond too harshly in our 
     restriction of civil liberties, and then, later, regret our 
     behavior. It is, of course, much easier to look back on past 
     crises and find our predecessors wanting, than it is to make 
     wise judgments when we ourselves are in the eye of the storm. 
     But that challenge now falls to us.

  We must meet this challenge head on. As we reflect on the course of 
history, there has hardly been a time in the history of the Nation when 
we faced great threats to our safety and security when the Government 
did not overreach.
  The greatest President, I think, who ever served us, Abraham Lincoln, 
from my State of Illinois, during the course of the Civil War, 
suspended the writ of habeas corpus, basically gathering into prison 
suspects without any charges. It was clearly in violation of the 
language of the Constitution. It was a power he assumed as Commander In 
Chief, and many have questioned it in the years that have followed.
  During World War I, when there was real concern about outside threats 
to our country, we established the Alien and Sedition Acts, laws passed 
by Congress and signed by the President which, on reflection, went too 
far.
  In World War II, we had the Japanese internment camps. We took 
perfectly innocent Japanese Americans, simply because of their 
ancestry, and put them in these settlement camps for lengthy periods of 
time, even while the children would leave the camps to serve in the 
Armed Forces.
  During the cold war, a war that went on for decades and cost this 
Nation billions of dollars and created great anxiety, the McCarthy 
hearings and the questions of patriotism that were raised indicate that 
again we had gone entirely too far. The list continues. Sadly, it 
continues when we reflect on what we have done since September 11.
  There is always a tension in our society between security and 
freedom. Those who want more security often argue that the Government 
needs more power and more authority, and individuals must give up those 
freedoms. Many of us believe that in surrendering our freedoms, we are 
surrendering our heritage to the terrorists. The freedoms which were so 
carefully guarded

[[Page 6753]]

and so zealously pursued by so many generations, freedoms which we have 
won with the lives of Americans in conflict time and time again, should 
be carefully guarded as well.
  I hope we will understand that the burden of proof is not on 
individual Americans to come forward and prove to the Government they 
have a right to their freedoms and liberties. When the Government seeks 
to take away the freedom and liberty of an American citizen, it is the 
burden of the Government to prove that is necessary.
  With the SAFE Act, Senator Craig and I have taken four very specific 
and discrete elements of the PATRIOT Act and we have said that by 
changing these, we will still keep America safe, but we will prevent 
intrusive Government activity into the privacy of individuals.
  We can search the Constitution from the beginning to the end, through 
every amendment, and never see the word ``privacy'' in it, but courts 
have said repeatedly that that is what government should be all about--
protecting our privacy, only invading it in times when it is absolutely 
necessary to protect our safety in our community or our security as a 
Nation. The PATRIOT Act ended up being an allocation of power to the 
Government that went far beyond what was necessary for the security of 
our Nation and in fact invaded our rights and liberties.
  We need to meet this challenge head on. It is possible to combat 
terrorism and to protect our freedoms. We can be safe and free. The 
SAFE Act demonstrates that. I urge my colleagues to join Senator Craig 
and myself as cosponsors.
  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. REED. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                IN MEMORY OF JUSTICE FLORENCE K. MURRAY

  Mr. REED. Mr. President, on Sunday, March 28, 2004, Rhode Island, the 
judicial community and the entire Nation lost a great pioneer who was a 
superb jurist and a powerful inspiration. Retired Supreme Court 
Associate Justice Florence Kerins Murray passed away after decades of 
breaking new ground for women in the United States. She was 87 years 
old.
  Justice Murray, the first woman appointed to the Rhode Island 
Superior and Supreme Courts, was a lifelong resident of Newport.
  The daughter of John and Florence Kerins, Murray attended Rogers High 
School in Newport and went on to attend Syracuse University, where she 
would later serve on the Board of Trustees and was the only woman in 
the 1942 graduating class at Boston University Law School where she 
would become a member of the board of visitors.
  Throughout her life Justice Murray sought ways to serve the 
community. She began her professional career as a teacher in a one-room 
schoolhouse on Prudence Island, in Narragansett Bay. Later, she joined 
the Women's Army Corps and was promoted to lieutenant colonel before 
leaving the service in 1947. Again, Murray broke ground when she was 
the youngest woman to achieve that rank at the time.
  Upon leaving the Army, she opened a one-woman law firm above a 
grocery store on Thames Street. She was the only female lawyer in 
Newport when she opened her firm. She later practiced law with her now-
deceased husband, Paul F. Murray, who went on to serve as U.S. Attorney 
for Rhode Island from 1977 to 1981. Paul and Florence had a son Paul M. 
Murray.
  Continuing her traditions of giving back to her community and public 
service, Murray served as both a State Senator from Newport and member 
of the city's School Committee.
  Murray was the only woman in the Rhode Island Senate during her years 
in the State House from 1948-1956.
  While there, she sponsored legislation to abolish wage differences 
based on gender and for equal pay for teachers throughout the State. 
She also introduced a bill making it easier for a parent to get child 
support if a former spouse leaves the State, and another that led to 
the creation of State facilities for the care and treatment of 
alcoholics.
  In 1956, Murray was sworn in as the State's first female superior 
court judge. She became the first female chief judge of the superior 
court in 1978, and when she was elected by the General Assembly to the 
State Supreme Court in November 1979, she became the first woman on 
that bench. She authored more than 500 opinions during her time on the 
Supreme Court before retiring in 1996.
  Supreme Court Justice Maureen McKenna Goldberg, who was appointed to 
Murray's seat on the high court upon her retirement, praised her ``for 
having broken down so many barriers that were previously closed to 
women. I believe her greatest accomplishment is that, before she boldly 
marched into uncharted territory, she paused, turned around and 
beckoned the rest of us to follow.''
  During her four decades on the bench, Murray displayed an incredible 
work ethic and modest demeanor. In a 1997 interview with the Providence 
Journal she spoke about how she approached her job, ``I haven't got any 
special attributes. I just do a job as well as I can do it, and I seek 
to keep myself well-informed about whatever my field of work is.''
  When she was not at work, Murray found dozens of other ways to 
contribute. She was a member of the Rhode Island Heritage Hall of Fame, 
a recipient of a Citizen of the Year Award from the Rhode Island Trial 
Lawyers Association, and a Judge of the Year Award from the National 
Association of Women Judges.
  The American Bar Association honored her in 2002 for pioneering work, 
in the late 1950s, that led to the establishment of Rhode Island's 
Family Court.
  She served on numerous judicial and civic boards over the years, 
among them, Salve Regina College and Bryant College and she founded the 
Newport Girls Club.
  In her retirement, Murray was appointed by President Clinton to serve 
on the board of directors of the State Justice Institute and remained 
active in National Judicial College affairs.
  Murray was honored in 1990 when the Newport Court House was renamed 
the Florence K. Murray Judicial Complex. It was an excellent and 
fitting way to honor a great woman.
  And when we honor Justice Murray, we must remember to honor the 
greatness of her achievements. Not because she was a woman, but because 
her accomplishments were spectacular for any person, man or woman.
  My deepest condolences go out to her friends and family, especially 
her son, Paul. Justice Murray was an incredible woman who was bound by 
no barriers. She was a patriot and a pioneer, a public servant and a 
mother. In her quest to improve herself, she improved the world around 
her. We will miss her dearly.
  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. CRAIG. 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. CRAIG. Mr. President, are we on particular legislation at this 
moment?
  The PRESIDING OFFICER. We are on a motion to recommit S. 1637, the 
JOBS bill.
  Mr. CRAIG. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                SAFE Act

  Mr. CRAIG. Mr. President, I have come to the floor, as my colleague 
from Illinois did a few moments ago, to talk about the USA PATRIOT Act 
and where we are with this issue that the American people have 
recognized as important for a variety of reasons.
  We all know that following the attack on American soil on September 
11,

[[Page 6754]]

2001, we produced the USA PATRIOT Act to allow the law enforcement and 
intelligence communities of this country to move forward and do a 
variety of things. For the first time, we stepped into some arenas of 
law that many citizens of our country looked at at the time and said, 
be careful if you go there for you may well be intruding upon what are 
fundamental and constitutional rights of privacy with the American 
people.
  I voted for the PATRIOT Act at that time, and I did so speaking to 
the fact that I thought it was necessary that we move expeditiously to 
allow our law enforcement community to operate for the purpose of 
national security. I said at that time that this was not a perfect law. 
In fact, 253 communities and 37 States later, representing 
approximately 43.5 million people, have passed resolutions opposing or 
expressing concern about the PATRIOT Act. Groups as politically diverse 
as the ACLU and the American Conservative Union endorse changes in the 
law.
  In his State of the Union Address, the President called for 
reauthorization of the PATRIOT Act. Given the bipartisan opposition to 
the law at this moment as it currently stands, there are many of us who 
believe it is necessary to make some adjustments in the law as we move 
toward reauthorization. Congress, in fact, made oversight of the 
PATRIOT Act implicit by sunsetting over a dozen sections of the bill at 
the time of its passage.
  The Senator from Illinois and I drafted S. 1709 with this oversight 
in mind. It was drafted to clarify and amend in a minor way the PATRIOT 
Act's most troubling provisions so that the whole or even piecemeal 
repeal of the law would be unnecessary. It was drafted to safeguard the 
liberties of law-abiding citizens while preserving the law enforcement 
authorities essential to a successful war on terror.
  Late last month, however, the Department of Justice issued a letter 
objecting to the very legislation, objecting to it before there had 
even been a hearing on it. Specifically, they objected to the SAFE Act 
on grounds that it would ``eliminate'' some PATRIOT tools and even 
``make it more difficult'' to fight terrorism than before enactment of 
the PATRIOT Act.
  Let me be emphatic: the SAFE Act in no way repeals any provision of 
the PATRIOT Act, nor impedes law enforcement's ability to investigate 
terrorism by amending pre-PATRIOT Act law. My name would not be on a 
bill that accomplished those things.
  What the SAFE Act does do is clarify and slightly modify several 
provisions, particularly those related to the use of surveillance and 
the issuance of search warrants, to restore the judicial oversight 
requisite to healthy law enforcement.
  Specifically, the SAFE Act would impose two reasonable safeguards on 
the use of roving wiretaps for intelligence purposes.
  Before the PATRIOT Act, roving wiretaps were only permitted for 
criminal, not intelligence, investigations. The PATRIOT Act authorized 
the FBI to use roving wiretaps for intelligence purposes for the first 
time.
  The Intelligence Authorization Act of 2002 further permitted the FBI 
to obtain ``John Doe'' wiretaps in an intelligence investigation 
without specifying either the target or the location of the wiretap.
  Law enforcement is only required to provide a physical description of 
the target, such as 5'7", Middle Eastern descent or something else 
equally as vague, so as to, in my opinion, be meaningless. In order to 
protect the private conversations of people wholly unrelated to the 
investigation, the SAFE Act simply requires that law enforcement 
specify either the target or the location of the wiretap and ascertain 
the presence of the target before initiating the surveillance.
  Far from eliminating the roving wiretap, S. 1709 only makes the 
requirements for a roving wiretap for intelligence surveillance conform 
to the requirements for roving wiretaps under the criminal code. Does 
this tie law enforcement's hands in the way the Justice Department so 
described it? Hardly so.
  In the case of sneak-and-peek warrants, before the PATRIOT Act, there 
was no statutory authority for delayed notice warrants for physical 
evidence, although covert searches of oral and wire communications for 
intelligence purposes were allowed. The Supreme Court never ruled on 
the constitutionality of sneak-and-peek warrants for physical evidence, 
and the Federal circuit courts were divided on the issue.
  Despite this, the PATRIOT Act granted Federal law enforcement broad 
authority to obtain sneak-and-peek warrants for physical evidence where 
a court finds ``reasonable cause'' that providing immediate notice of 
the warrant would have an adverse result, including seriously 
jeopardizing an investigation or unduly delaying a trial,''--a very 
broad standard.
  The SAFE Act, our amendment to the PATRIOT Act, reasonably limits 
when a court may issue a sneak-and-peek warrant for physical evidence 
to situations where notice of the warrant would:
  (1) endanger the life or physical safety of an individual;
  (2) result in flight from prosecution; or,
  (3) result in the destruction of or tampering with evidence sought 
under the warrant.
  Though the Department of Justice argues that scenarios such as a 
suspect's associates fleeing, going into hiding, or accelerating their 
plots would be excluded from the sneak-and-peek authority, these 
clearly fall within the reasonable limits of the SAFE Act.
  The Department of Justice also misrepresents the authority of the 
sneak-and-peek provision when it says that the SAFE Act would 
``restrict the ability of courts to extend the period of delay'' for a 
delayed-notice warrant. Although S. 1709 requires notice of a covert 
search within 7 days rather than a reasonable period, it authorizes 
unlimited 7-day delays if the court finds that notice of a warrant 
would continue to endanger the life or physical safety of an 
individual, result in flight from prosecution, or result in the 
destruction of or tampering with the evidence sought under the warrant.
  Far from restricting the courts, the SAFE Act restores what I believe 
is the proper level of judicial oversight in the process.
  I believe the Department of Justice also misrepresented the 
modifications the SAFE Act would make to section 215 of the PATRIOT 
Act, which permits law enforcement to obtain a vast array of business 
records with minimal judicial oversight.
  Before the PATRIOT Act, FISA search orders were available for only 
certain travel-related ``business'' records--not library or personal 
records--where the FBI had ``specific and articulable facts'' 
connecting the records to a foreign agent.
  These orders are available for any and all records, including library 
records, by simply certifying that the records are sought for an 
international terrorism or intelligence investigation, a standard even 
lower than relevance. The court does not even have the authority to 
reject this certification under current law.
  Though the Department of Justice describes the SAFE Act standard as a 
``much more rigorous'' standard, FISA search orders would still be 
available for any and all records, but only when the FBI has ``specific 
and articulable facts'' connecting the records to a foreign agent.
  Far from ``raising the standard'' to a new level, S. 1709 reinstates 
the proper pre-PATRIOT standard for obtaining a FISA order for business 
records, and even maintains the PATRIOT Act's expanded definition of 
business records.
  Likewise, the Department of Justice argues that section 5 of the SAFE 
Act would impose an ``entirely new limitation'' on the use of National 
Security Letters.
  Before the PATRIOT Act, the FBI could issue a National Security 
Letter to obtain personal records by certifying that it had reason to 
believe that the person to whom the records relate is a foreign power 
or agent of a foreign power.
  Current law allows the FBI to obtain sensitive personal records, 
without judicial approval, simply by certifying

[[Page 6755]]

that they are sought for a terrorism or intelligence investigation, 
regardless of whether the target is a suspect.
  While national security letters are only to be used to obtain name, 
address, length of service, and local and long distance toll billing 
records, available information indicated that the Justice Department is 
using them to obtain other kinds of records, including library records. 
Contrary to the assertions of the Department of Justice, the SAFE Act 
maintains the greatly expanded definition of ``financial records,'' and 
even makes such records available without individual suspicion. S. 1709 
only reasonably exempts libraries and Internet terminals from National 
Security Letter orders.
  While I am disappointed that the Administration has expressed 
disagreement with the SAFE Act, I view this as an opportunity to 
increase the public discussion on one of the most important issues of 
the day.
  I know Attorney General John Ashcroft. John and I are personal 
friends. I am not worried about how John Ashcroft will enforce the law. 
But administrations change. The law lasts, and it is imperative that it 
embodies a smooth balance of liberty and justice.
  I am not seeking to repeal any provision of the PATRIOT Act but 
rather to salvage it by making necessary, albeit minor, amendments to 
it in order to safeguard individual liberties while preserving the very 
important law enforcement authorities it grants. Privacy is a hallmark 
of our constitutional system--the right of the individual within that 
system--and what we attempt to do by the SAFE Act, S. 1709, is to 
assure that when we reauthorize the PATRIOT Act, we guarantee that 
those rights are preserved.
  I yield the floor.
  Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues 
Senator Craig and Senator Durbin in calling for hearings on this 
important legislation to amend the PATRIOT Act.
  After the vicious attacks of September 11, there was a broad 
consensus in Congress about what needed to be done. We all recognized 
the need to give law enforcement and intelligence officials stronger 
powers to investigate and prevent terrorism, to provide officials with 
effective ways to stop terrorists from entering our country, and to 
achieve greater coordination between the law enforcement and the 
intelligence communities. At the same time, we understood the critical 
importance of protecting the basic rights and liberties of our citizens 
and others residing legally in the United States and maintaining 
America's long tradition of welcoming immigrants from around the world.
  The challenge we faced, then as now, was how to strike the right 
balance between law enforcement and civil liberties.
  Many of us were concerned that some of the changes initially 
requested by the administration did not strike the right balance. We 
made significant improvements to the PATRIOT Act during Senate 
negotiations, but we also recognized the need to follow the 
implementation of these new powers carefully. That is why the 4-year 
sunset provision is such an important part of the legislation. By 
passing the sunset provision, Congress committed itself to revisiting 
the PATRIOT Act after 4 years, in a non-election year, and making a new 
and better-informed assessment of which powers should be retained, 
which should be revised, and which should be eliminated.
  Since the enactment of this law, there has been increasing bipartisan 
concern about its effect on civil liberties in this country. Two 
hundred fifty-seven communities in 38 States representing over 40 
million citizens, have passed resolutions opposing or expressing 
concern about the PATRIOT Act.
  Clearly, we must do more to protect the basic rights and civil 
liberties of law-abiding Americans. The bipartisan Security and Freedom 
Ensured Act is narrowly written to correct some of the PATRIOT Act's 
most controversial provisions: it would protect innocent people from 
surveillance, by requiring ``roving wiretap'' warrants to identify 
either the target of the wiretap or the place to be wiretapped; it 
would impose reasonable limits on the Government's ability to carry out 
``sneak and peek'' search warrants, by requiring notice of such a 
covert search to be given within 7 days after the search, unless the 
notice would endanger a person's life or result in the destruction of 
evidence or a suspect's flight from prosecution; and it would protect 
library and bookstore records from ``fishing expedition'' searches of 
the records, while still allowing the F.B.I. to follow up on legitimate 
leads.
  None of these changes would amend pre-PATRIOT Act law in any way. 
None would impede the ability of law enforcement and intelligence 
officials to investigate and prevent terrorism. To the contrary, the 
SAFE Act would retain the expanded powers created by the PATRIOT Act, 
while restoring the constitutional safeguards that are indispensable to 
our democracy. These safeguards are a continuing source of our 
country's strength, not luxuries or inconveniences to be jettisoned in 
times of crisis.
  Unfortunately, the administration does not agree. Our proposal has 
not yet received a hearing in the Judiciary Committee, yet the 
administration has already threatened to veto it. Rather than comply 
with the sunset provision specifically written into the PATRIOT Act 
itself, President Bush has sought to make an election-year issue out of 
it by calling on Congress to reauthorize the Act now. Rather than seek 
to promote understanding, the Attorney General and other officials have 
chosen to defend the PATRIOT Act by speaking only before audiences 
sympathetic to their views. In Boston and other cities, citizens with 
questions and concerns about the PATRIOT Act have been shut out.
  I urge my colleagues not to accept this cynical election-year 
strategy. In the House, Chairman Sensenbrenner has rejected calls for 
reauthorizing the PATRIOT Act this year, and we should do the same in 
the Senate. We should conduct additional hearings in the Judiciary 
Committee on the many important civil liberties issues that have been 
raised since September 11, including the administration's unprecedented 
and troubling ``enemy combatant'' policy, under which U.S. citizens are 
incarcerated without counsel or judicial review. Attorney General 
Ashcroft should appear to defend these and other policies. And we 
should hold hearings specifically on the bipartisan SAFE Act proposed 
by Senator Craig and Senator Durbin.
  We should also hold hearings on the need for legislation to protect 
the civil liberties of immigrants. The detention provisions in the 
PATRIOT Act have led to the unfair detention of innocent people. 
Massive registration programs have fingerprinted, photographed and 
interrogated over 80,000 innocent Arab and Muslim students, visitors, 
and workers. ``Voluntary interview'' programs have made criminal 
suspects out of Muslims legally residing in the U.S. In our pursuit of 
terrorist suspects, our Government cannot be allowed to ride roughshod 
over the basic rights and liberties of immigrants.
  In a speech in 1987, Justice William Brennan observed that the United 
States had repeatedly failed to preserve civil liberties during times 
of national crisis--from the Alien and Sedition Acts of 1798, to the 
internment of Japanese Americans during World War II--only to later 
realize ``remorsefully . . . that the abrogation of civil liberties was 
unnecessary.'' As we continue to face the crisis of terrorism today, we 
should do all we can to avoid the errors of the past. The 
administration and Congress should work together in a spirit of 
bipartisanship and shared purpose, to bring terrorists to justice, to 
enhance our security, and to preserve and protect our Constitution.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Pennsylvania is 
recognized.


            Pregnancy and Trauma Care Access Protection Act

  Mr. SPECTER. Madam President, I support legislation which would 
address certain serious problems faced today by doctors, hospitals, and 
other medical professionals who provide obstetrical and gynecological 
services

[[Page 6756]]

and emergency or trauma care services, and at the same time provide 
balance to fairly treat people who are injured in the course of such 
medical treatment.
  While most of the attention has been directed to OB/GYN and ER 
malpractice verdicts, the issues are much broader involving medical 
errors, insurance company investments, and administrative practices.
  I support caps on noneconomic damages so long as they do not apply to 
situations such as the paperwork mixup leading to the double mastectomy 
of a woman or the death of a 17-year-old woman in a North Carolina 
transplant case where there was a faulty blood type match, or 
comparable cases in OB/GYN or the ER trauma services area.
  An appropriate standard for cases not covered could be analogous 
provisions in Pennsylvania law which limit actions against governmental 
entities in the limited tort context which exclude death, serious 
impairment of bodily functions, and permanent disfigurement or 
dismemberment.
  Beyond the issue of caps, I believe there could be savings on the 
cost of OB/GYN or ER trauma malpractice insurance by eliminating 
frivolous cases by requiring plaintiffs to file with the court a 
certification by a doctor in the field that it is an appropriate case 
to bring to court. This proposal, which is now part of Pennsylvania 
State procedure, could be expanded federally, thus reducing claims and 
saving costs.
  While most malpractice cases are won by defendants, the high cost of 
litigation drives up malpractice premiums. The proposed certification 
would reduce plaintiffs' joinder of peripheral defendants and cut 
defense costs.
  Further savings could be accomplished through patient safety 
initiatives identified in the report of the Institute of Medicine.
  On November 29, 1999, the Institute of Medicine issued a report 
entitled ``To Err Is Human: Building a Safer Health System.'' The IOM 
report estimated that anywhere between 44,000 and 98,000 hospitalized 
Americans die each year due to avoidable medical mistakes. However, 
only a fraction of these deaths and injuries are due to negligence. 
Most errors are caused by system failures.
  The Institute of Medicine issued a comprehensive set of 
recommendations, including the establishment of a nationwide mandatory 
reporting system, incorporation of patient safety standards in 
regulatory and accreditation programs, and the development of a 
nonpunitive culture of safety and health care organizations. The report 
called for a 50-percent reduction in medical errors over 5 years.
  The Appropriations Subcommittee on Labor, Health and Human Services, 
and Education, which I chair, held three hearings to discuss the 
Institute of Medicine's findings and explore ways to implement the 
recommendations outlined in the IOM report. For fiscal year 2001, the 
subcommittee bill contained $50 million for a patient safety initiative 
and directed the Agency for Health Care Research and Quality to develop 
guidelines on the collection of uniform error data; establish a 
competitive demonstration program to test best practices, and to 
research ways to improve provider training. In fiscal year 2002 and 
2003, $55 million was included to continue these initiatives. In this 
year, fiscal year 2004, we increased the amount provided for patient 
safety to $79.5 million.
  We have received an interim report informing us the creation of a 
positive safety culture at hospital and health care facilities in which 
employees believe they would not be punished for reporting errors has 
caused reporting rates of such errors to increase. The emerging 
positive culture also includes the involvement of key leaders, both 
administrative and clinical, in patient safety procedures. This has 
helped professionals move ahead to improve patient safety and the 
establishment of patient safety committees, development and adoption of 
safe protocols and procedures and enhanced technology as a tool where 
carefully implemented to reduce errors and approve safety, for example, 
through the use of computerized physician order entry.
  There is evidence that increased OB/GYN and ER trauma insurance 
premiums have been caused at least in part by insurance company losses, 
the decline in the stock market of the past several years, and the 
general ratesetting practices of the industry. As a matter of insurance 
company calculations, premiums are collected and invested to build up 
an insurance reserve where there is considerable timelag between the 
payment of the premiums and litigation which results in a verdict of 
settlement. When the stock market has gone down, for example, that has 
resulted in insufficient funding to pay claims and the attendant 
increase in insurance premiums. A similar result occurred in Texas on 
homeowners insurance where cost and availability of insurance premiums 
became an issue because companies lost money in the market and could 
not cover the insured losses on their accounts.
  In structuring legislation to put a cap on jury verdicts, due regard 
should be given to the history and development of trial by jury under 
the common law where reliance is placed on average men and women which 
comprise a jury to reach a verdict resulting from the values and views 
of the community.
  Jury trials in modern tort cases descend from the common law jury 
trial in trespass, drawn from and intended to be representative of the 
average members of the community in which the alleged trespass 
occurred. This coincides with the incorporation of negligence standards 
of liability into trespass actions.
  This representative jury right in civil actions was protected by 
consensus among the State drafters of the United States Constitution's 
Bill of Rights. The explicit trial-by-jury safeguards in the seventh 
amendment to the Constitution were an adaptation of these common-law 
concepts harmonized with the sixth amendment clause that local juries 
be used in criminal trials. Thus, from its inception in common law 
through inclusion in the Bill of Rights today, the jury in tort 
negligence cases is meant to be representative of the judgment of 
average members of the community, not of elected representatives.
  The right to have a jury trial to decide one's damages has been 
greatly circumscribed in recent decisions by the U.S. Supreme Court. An 
example is the analysis the Court has recently applied to limit 
punitive damage awards. In recent cases, the Court has shifted its 
seventh amendment focus away from two centuries of precedent in 
deciding Federal appellate review of punitive damage awards will be 
decided on a de novo basis and a jury's determination of punitive 
damages is not a finding of fact for purposes of the reexamination 
clause of the seventh amendment which provides ``no fact tried by a 
jury shall be otherwise reexamined in any court of the United States, 
than according to the rules of the common law.''
  Thus, in the year 2003, the Court reasoned that any ratio of punitive 
damages to compensatory damages greater than 9 to 1 would likely be 
considered unreasonable and disproportionate, although that is subject 
to certain exceptions and constitutes an unconstitutional deprivation 
of property in non-personal injury claims. Plaintiffs will inevitably 
face a vastly increased burden to justify a greater ratio and appellate 
courts have far greater latitude to disallow or reduce such awards, 
although increased awards can be permitted under the Supreme Court 
decision. These decisions may have already, in effect, placed caps on 
some jury verdicts in malpractice cases which may involve punitive 
damages.
  Consideration of the many complex factors on the Senate floor on the 
pending legislation will obviously be very difficult in the absence of 
a markup in committee or the submission of a committee report and a 
committee bill. The pending bill is the starting point for analysis, 
discussion, debate, and amendment. I am prepared to proceed with the 
caveat there is much work to be done before the Senate would be ready, 
in my opinion, for the consideration of final passage.

[[Page 6757]]

  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Madam President, I wish to speak as if in morning 
business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                SAFE Act

  Mr. SUNUNU. Madam President, I rise to speak on the issue of the 
PATRIOT Act and to follow up on the remarks earlier this afternoon by 
Senator Craig of Idaho. I have joined Senator Craig in cosponsoring the 
SAFE Act, a piece of legislation that would make certain modifications 
to the PATRIOT Act. I will not go into all of the details of the 
legislation, as Senator Craig did. However, I do want to highlight a 
couple of the main provisions of the legislation to outline our 
thinking in crafting these provisions and underscore why I think we 
need to take a step back, look at the PATRIOT Act in its totality and 
try to make it work better and try to strike a better balance the 
protection of the civil liberties we all cherish as Americans and the 
tools we do believe are necessary for law enforcement and intelligence 
agencies to conduct the war against terror.
  It is unfortunate some people have come out with a knee-jerk reaction 
calling for the repeal of the PATRIOT Act. Before the PATRIOT Act our 
laws did not reflect or foresee a day and age with cellular phones, 
satellite phones, and a high-speed Internet. There are a lot of very 
important provisions of the PATRIOT Act that do update our law 
enforcement capabilities in a way that reflects changes in technology. 
Protecting civil liberties while giving law enforcement the ability to 
operate as technology and new threats to our security emerge is 
critical to winning the global war on terror.
  We can draw an appropriate line to protect civil liberties in a few 
specific areas. First, let's look at sneak-and-peek warrants, or a 
delayed notification search warrant. Senator Craig spoke at length 
about the provision in the SAFE Act that would modify the PATRIOT Act 
to say instead of requiring notification within a reasonable amount of 
time, which is clearly an arbitrary definition. Instead, we ought to 
have a set time limit that notification of a search warrant executed 
without notice has to be provided within 7 days of the execution of the 
warrant.
  Now, if there is a threat to safety, or risk of flight, or a risk of 
damage to the investigation, the SAFE Act allows law enforcement 
officials to go back to the judge and extend that notification another 
7 days. And that can continue indefinitely. This approach--specifying a 
time limit on the warrant and providing for more judicial review--is 
much clearer and more respectful of civil liberties. For anyone to 
suggest adding clarity in the law for notification undermines the 
capacity of law enforcement to continue to do their job, I think, is a 
level of rhetoric that does not serve an important debate such as this 
very well.
  Second, we added clarification to the provision in the PATRIOT Act 
that deals with a roving wiretap. The SAFE Act would require law 
enforcement to specify either the suspect to be put under surveillance 
through a roving wiretap--an order that follows that suspect as they 
use different cell phones, and other means of communication--or specify 
a particular location to be monitored. Specify the suspect or specify 
the location. Changing the PATRIOT Act to require such specification 
would add clarity to ensure the PATRIOT Act is not misused and 
minimizes the likelihood that innocent parties would be unknowingly 
tapped. And again, such a change would only improve the PATRIOT Act as 
it would protect those who are not targets of investigation but it 
still give law enforcement the ability to conduct this kind of a roving 
wiretap.
  Third, another provision of the SAFE Act applies sunset provisions to 
a number of different sections of the PATRIOT Act that do not sunset 
over time. When we talk about a sunset provision in the U.S. Congress, 
we are talking about a specific period during which the legislation is 
in force, but after that period--it might be a 2-year or 3-year or 4-
year period--the law sunsets, and it needs to be reenacted or 
reauthorized by Congress.
  I think sunsets are healthy. They are good because they force 
Congress to rethink and reargue a piece of legislation and examine how 
the legislation has been used and problems that might exist with it. I 
think we are much more likely to make improvements to legislation if we 
have to reauthorize it at different periods in the future.
  I do not understand why anyone would say a sunset provision weakens 
legislation. It does not. It simply requires us to renew them at a 
future date. I do not know why law enforcement would be afraid of a 
sunset provision. I do not know why the Justice Department would be 
afraid of a sunset provision. If there is value to the law, it is 
helping law enforcement do their job, and all the while it is 
appropriately protecting civil liberties, the law will be reauthorized 
and improved over time.
  I cannot think of any reason the provisions of the SAFE Act that add 
clarity to the time frame for notification and judicial review of a 
sneak and peak warrant, that add specification to the person or place 
targeted for a wiretap, or that sunset provisions to a law--should be 
opposed on the grounds that they somehow threaten our ability to 
conduct the war on terrorism. Quite to the contrary, the provisions of 
the SAFE Act go a long way toward ensuring individual civil liberties 
are protected, that the ability to misuse or abuse the law is 
minimized, that law enforcement continues to have what it needs to 
prosecute the war on terrorism and that Congress has to affirm and 
reauthorize legislation over time. I only see the SAFE Act as 
strengthening the PATRIOT Act.
  So I join with Senator Craig, Senator Durbin, Senator Feingold, 
Senator Crapo, other members of the Senate and the wide range of 
citizen groups who have all endorsed and supported the SAFE Act. I hope 
when we begin deliberations and discussions about renewing and 
extending the PATRIOT Act, these substantive yet modest, thoughtful 
modifications are a vital part of that debate that is undertaken in 
this Chamber.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Madam President, what is the pending business?
  The PRESIDING OFFICER. The motion to recommit the JOBS bill is 
pending.
  Mr. DAYTON. Thank you, Madam President. I will speak to that motion, 
please.
  Madam President, today, we voted actually a second time on that 
motion to invoke cloture to recommit this pending bill to the Finance 
Committee--a vote that failed. So, in other words, we essentially voted 
not to recommit the bill to the committee of origin.
  I emphasize that fact because in my State of Minnesota Democrats are 
being accused of blocking action on this bill. That simply is not true. 
We are ready and willing to act on this legislation right now, in fact, 
as we were last week before it was pulled off the floor by the 
Republican leader.
  So people watching might ask themselves, why was it pulled back then? 
Why have we been faced with these repeated attempts to send the bill 
back to committee? The reason is because the Republican caucus does not 
want to have to vote on the pending amendment, which is the Harkin 
amendment, which would protect the rights to overtime pay for some 8 
million Americans--police officers, firefighters, nurses, laborers; 
hard-working Americans who want to continue to receive overtime pay 
when they work their extra hours, whether it be for the sake of public 
safety, whether it is needed to fill shifts on hospital wards in order 
to keep them open to patients, or whether it is in order to earn extra 
income to improve their own lives and the lives of their families.
  These 8 million Americans are not asking for any special favors, such 
as are provided in the underlying bill. They are not trying to get 
special tax breaks or avoid paying taxes on their

[[Page 6758]]

foreign income, as are the beneficiaries of the underlying bill. They 
simply want to be able to earn the American dream, by working harder, 
by working longer hours, paying their taxes but then coming out ahead 
because of the overtime provisions.
  But this administration has said no, the same administration that 
wants to eliminate taxes on so-called unearned income, dividend income. 
They settled for cutting the rate in half but wanted to eliminate it 
initially. In other words, they want to make not working more lucrative 
and also want to make working harder less lucrative.
  Now, what kind of family value is that? You work more and you earn 
less because the Bush administration cares more about the corporations 
that want to add to their profits by paying their workers less money. 
That is why they moved millions of American jobs overseas. That is why 
they have eliminated millions of American jobs.
  Madam President, 8.5 million of our fellow Americans are out of a job 
today. And now these same corporations, which have, by the way, been 
enjoying record high-profit increases in each of the last 2 years, want 
to make even more money by paying less money to the people who are 
still working. And the administration is going to help them do it.
  In fact, the Secretary of Labor unilaterally, by herself, revoked the 
overtime benefit protections for 8 million Americans. We, their elected 
representatives, are not even being allowed to vote on that matter to 
express our approval or disapproval--in this case, my strong 
disapproval--of that revocation of their overtime benefit protections.
  Why not? Why can't we vote on protecting 8 million American workers? 
Well, the Republican Conference leader said: Where is the discernible 
gain to our Members from voting on this and other Democratic 
amendments?
  I don't know about the gain to colleagues who don't want to support 
overtime pay, but I will tell you about the gain or the loss to those 8 
million American workers, depending on whether this measure passes or 
fails.
  That is their overtime pay that has been taken away by the unilateral 
action of the Secretary of Labor. That is their earned income that has 
been taken away. That is their new home, their college education, 
family vacation, prescription drugs they need to buy for elderly 
relatives.
  We in the U.S. Senate are being denied even the right to vote because 
it is politically inconvenient for some of the Republican caucus.
  There is also a huge gain or loss for millions of other Americans who 
are out of work by the fate of another Democratic amendment to extend 
unemployment benefits to the 1.1 million Americans who have exhausted 
theirs at the present time. That number includes an estimated 20,000 of 
my fellow Minnesotans. They are also hard-working men and women who, 
through no fault of their own, lost their jobs and have been looking 
for work and unable to find it in the terrible jobs climate of the last 
couple years.
  Two-thirds of those out-of-work adults have children. An estimated 
622,000 children are affected in those families that have exhausted 
their unemployment benefits. When that happens, it is estimated that 
over two-thirds of those families lose their health coverage, so the 
children do not have health care coverage any longer. Over half those 
families, it is estimated, fall below the poverty level as a result of 
losing their unemployment benefits. It is unbelievably heartless and 
cruel to deny them this extension. Yet again we are unable to get a 
vote in the Senate on extending unemployment benefits to those 
Americans.
  Since we are unable to get these votes on our amendments to this JOBS 
Act, you might ask yourself, what is so precious about this bill, what 
is so perfect about it that the leader is denying us a chance to change 
it in any way? You would naturally assume that because it is called the 
JOBS bill, it is about actually providing jobs to fellow Americans, but 
that is not the case.
  This is about providing $114 billion in tax breaks to large and 
mostly profitable American corporations, to very wealthy American 
investors. Thirty-nine billion of these tax breaks would go to their 
foreign business operations to allow them to reduce taxes paid in this 
country on foreign profits, to allow them to postpone the payment on 
earned income abroad; in other words, to provide them with additional 
tax breaks for expanding their foreign business operations and 
providing jobs overseas.
  Some of those jobs might in fact be American jobs taken away from 
people in this country and sent elsewhere or they might be jobs that 
are going to be created through an expanded business operation that 
could have been created here in the United States except for the 
advantages of doing so elsewhere--meaning again that foreign workers 
get those jobs rather than Americans at a time when we have 8.5 million 
Americans who are out of work and another million and a half Americans 
who are so-called marginally attached to the labor force, who have 
given up looking for work, and another 4.5 million Americans who are 
working part time not by choice but because it is the only work they 
can find.
  In other words, over 10 percent of our workforce is either unemployed 
or underemployed right now, and we are providing foreign tax breaks 
worth $39 billion, additional foreign tax breaks, in this measure to 
these companies or to the investors in them.
  I will have an amendment I will offer that would address this matter 
and take these foreign tax breaks out of the bill, because if we are 
going to provide tax incentives, as other parts of the bill do, let's 
at least provide those incentives to American companies for producing 
jobs in the United States. Let's tie every single one of the tax 
advantages in this legislation to the provision of new jobs, ideally 
manufacturing jobs but provable new or additional jobs in the United 
States to Americans now, not as the measure provides for tax breaks 
that are going to accelerate in the years 2009 to 2012. Those are not 
going to result in the creation of new jobs in this country now. We are 
giving tax advantages to companies, some of which can certainly benefit 
from it, but many have been part of the 20-percent increases in 
corporate profitability in each of the last 2 years.
  I am glad American corporations are profitable. We need them to be 
profitable in order to create jobs. But the fact is that at least in 
the manufacturing sector--and up until now in just about any other 
sector--improved profitability has not resulted in new job creation in 
the last couple of years. It didn't result in new job creation last 
month. So if we are going to provide tax reductions for U.S. 
manufacturing companies or anyone else, let's make darn sure those 
reductions are going to result in jobs, the creation of new jobs or the 
adding of jobs where formerly people had been laid off or cut back. 
Let's translate those tax breaks into what this bill calls itself, a 
JOBS Act, jobs for Americans.
  Finally, I want to address the fact that as part of this gambit today 
to supposedly recommit the bill to the committee where it already was 
referred out, one of the ways in which we were supposedly going to be 
induced to do so was some part of the former Energy bill, we were told, 
was going to be added to the bill that reappeared out of the Finance 
Committee. I appreciate very much the work that has been done by that 
committee, in particular by Chairman Grassley of Iowa, who has been 
stalwart in terms of providing additional tax incentives for energy 
production, particularly the biofuels, ethanol, and biodiesel fuels. He 
was instrumental also in changing the formula on the highway trust fund 
that penalized States such as Minnesota for their ethanol consumption. 
I would like to join with the majority leader and others who would like 
to advance this Energy legislation forward.
  Since the bill was not recommitted to the Finance Committee, I have 
drafted an amendment I intend to introduce to add some of the energy 
provisions to the pending bill, ones that would reinstate the renewable 
fuels standard Senator Daschle, the Democratic leader, was instrumental 
in adding and keeping through the conference committee a year ago, 
legislation to

[[Page 6759]]

expand the American consumption of ethanol and biodiesel fuels over the 
next 10 years, the electric reliability section, which is beneficial to 
smaller utilities throughout Minnesota and elsewhere in the Nation, and 
then the package of tax incentives which Chairman Grassley, ranking 
member Baucus, and others voted out of the Senate Finance Committee 
that provide alternative fuel incentives, the small ethanol producer 
tax credit, the tradability of these credits by those co-ops and others 
that otherwise can't take advantage of them, the tax credit for 
biodiesel that parallels the credit provided for ethanol production.
  These are important measures that would do what the bill itself 
purports to do, which is to add jobs and provide enormous economic 
benefits to a State such as Minnesota, to farmers in terms of income, 
to the production plants for ethanol and biodiesel fuels.
  Those are real jobs amendments, real jobs provisions, those that are 
going to provide tax credits for business activities, those that are 
going to result directly in additional jobs for America and in an 
alternative fuel for America that can reduce our dependence on foreign 
oil; that can take some of the $115 billion a year we send out of the 
country to foreign countries such as Saudi Arabia and elsewhere to 
import foreign oil into this country; $115 billion that, if it were 
going into the pockets of American farmers and multiplying those 
dollars throughout communities, would result in an economic 
revitalization of rural America the likes of which we have not seen in 
decades and which we couldn't create any other way, not through all the 
Government programs you want to imagine, just through the free market, 
through increased profitability for American agriculture, through the 
creation of cleaner burning fuels that are available right now and 
could be produced right now in quantities to significantly replace the 
gasoline that is consumed all over this country.
  That is a real jobs amendment, one I will be introducing and hope we 
can consider as part of the JOBS Act, so we can make that bill live up 
to its name, one that will actually provide jobs for Americans rather 
than corporate tax giveaways for those who don't need them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. VOINOVICH. Madam President, I want to comment on the remarks of 
the Senator from Minnesota this evening before the Senate and indicate 
many of us who voted against the Harkin amendment were also as 
concerned about some of the things the Senator of Minnesota talked 
about, in terms of the benefits that accrued to working men and women 
in the United States of America.
  I made it clear at that time, when I voted against the Harkin 
amendment, I felt the Department of Labor should be able to move 
forward with their recommendations on a law that hasn't been changed 
since 1978, and that if what my colleagues on the other aisle have 
indicated is true, many of us would join them in having those rules 
overturned by the Members of the Senate.
  I am pleased to say those rules have been finished by the Department 
of Labor and they are now at OIRA, which is in the Office of Management 
and Budget, being reviewed by John Graham. I am hopeful they will be 
back to the Department of Labor within the next 30 days, so we will 
know specifically what it is those rules are going to recommend in 
terms of changes in the law. Hopefully, they are not going to reflect 
what I have heard on the floor of the Senate over the last couple of 
months about eliminating overtime for 8 million workers.
  The other thing I want to point out is there are many of us on this 
side of the aisle who are very much in favor of extending unemployment 
benefits, and I joined with many colleagues to try to get cloture on 
that amendment several weeks ago. I hope in the next couple of weeks we 
will be able to get that passed on the Senate floor. There are hundreds 
of workers in my State--and I am sure also in Minnesota--anxiously 
waiting for those benefits. In my State, we have too many people who 
are unemployed. Quite frankly, too many people in my State are worried 
about whether they are going to have a job. So some of the things the 
Senator talked about, I hope, will be dealt with during the next couple 
of weeks.
  Mr. DAYTON. If the Senator will yield, I thank the Senator for the 
update on the overtime situation. I look forward to improved provisions 
from the Secretary of Labor. I thank the Senator also for his 
involvement and support to extend unemployment benefits. I know people 
in his State of Ohio, my State of Minnesota, and many States 
desperately need that. So I thank him.
  Mr. VOINOVICH. Madam President, I also share the Senator's enthusiasm 
about the ethanol guarantee in the Energy bill. There are many other 
provisions in that bill many of us are concerned about. I think it 
represents the first real energy policy this country has had. Again, 
hopefully, we can work it out so that can get done along with the other 
provisions. He is right; that bill has some real job-creation aspects 
to it, particularly in the area of ethanol. We have several companies 
now that are thinking about building ethanol plants in Ohio, and I 
think one of the things the American public doesn't understand is it is 
going to provide less reliance on foreign oil and, in addition, it will 
limit some of the environmental problems we have from gasoline, with 
some other very good and important aspects to all of our brothers and 
sisters.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  (The remarks of Mr. Voinovich pertaining to the introduction of S. 
2292 are printed in today's Record under ``Introduction of bills and 
joint resolutions.'')
  Mr. VOINOVICH. I thank the Chair, and 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. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Security and Freedom Ensured Act

  Mr. FEINGOLD. Madam President, I join my colleagues Senators Craig 
and Durbin in urging the administration and Congress to support the 
SAFE Act. The SAFE Act is a much needed bill that amends a few 
provisions of the USA PATRIOT Act in a reasonable way to preserve our 
constitutional rights and protections while still protecting our Nation 
against terrorism.
  More than 2 years after the PATRIOT Act passed so overwhelmingly, 
without close scrutiny by Congress, I am delighted that there is now 
growing support for close examination of application of the law and for 
changes to the law to ensure that, as we fight terrorism, we also 
protect the civil liberties of Americans.
  There is reason for hope. In Congress and in communities across the 
country, the American people are beginning to realize that the PATRIOT 
Act went too far.
  In Congress, there is bipartisan support for changes to the law. I am 
pleased to join my Republican colleagues, Senators Craig, Crapo, 
Sununu, and Murkowski, as a cosponsor of the SAFE Act.
  Over 275 communities and four States have now passed resolutions 
expressing opposition to certain provisions of the PATRIOT Act.
  Mr. President, the attacks of September 11, 2001, presented a new and 
unique challenge to this country. I can think of nothing more important 
than responding to that terrible challenge and protecting Americans 
against terrorism. As I said during debate on the PATRIOT Act and 
continue to say today, I believe most of the Act's provisions were 
necessary and proper, such as increasing the number of border patrol 
agents and allowing the FBI access to voicemails as a part of wiretaps.
  But we must be sure that, in conducting the fight against terrorism, 
the country's highest priority, we also respect the civil rights and 
liberties of all Americans. History shows that

[[Page 6760]]

America should not let fear, however justified, cause us to sacrifice 
our liberty or the liberty of others in the name of national security. 
The Palmer raids, the McCarthy hearings, the internment of Japanese-
Americans, these are all events that have been judged poorly through 
the lens of history. Today, we are again faced with a grave threat but 
we can and must face it without potentially abusing the power of the 
Federal Government or trampling fundamental constitutional rights and 
protections.
  I am pleased that Members of Congress and the American people are 
beginning to realize the values at stake. There is healthy debate 
across the country in city councils, State legislatures, town hall 
gatherings, and in Congress, on how best to preserve a free and open 
society and to protect our Nation against future terrorist attacks.
  In contrast, the administration does not seem interested in engaging 
in a good faith dialogue with the American people and Members of 
Congress about our legitimate concerns and reasonable proposals.
  Instead, the President has prematurely called for lifting the sunset 
on certain provisions of the PATRIOT Act that are due to expire. 
Congress has a responsibility to exercise oversight and demand 
accountability from the agencies using authority granted to them by 
Congress. Nearly 2 years before some provisions of the PATRIOT Act will 
sunset, the administration should be engaging in good faith discussions 
and negotiations on how it is using the powers it has and how best to 
protect our country from terrorism while also protecting the civil 
liberties of our citizens.
  I am pleased that both Senator Hatch and Representative 
Sensenbrenner, the Chairmen of the Senate and House Judiciary 
Committees, respectively, have disagreed with the President and have 
stated that close scrutiny of the PATRIOT Act will be undertaken before 
Congress will consider lifting the sunset provisions. I commend them 
for taking this position. It is the right thing to do and the proper 
role of Congress.
  In addition to prematurely calling for lifting the sunset provisions, 
the administration has already threatened to veto the SAFE Act if it is 
enacted. That is unfortunate, and very unusual. The administration has 
issued a veto threat of a bill that was introduced just a few months 
ago and has not even had a hearing yet. Thousands of bills are 
introduced each year. The administration could spend a lot of time 
issuing veto threats for every one it disagrees with. Obviously, it is 
worried about this one. But veto threats at this early stage do not 
contribute to a productive dialogue, and they certainly will not deter 
the growing bipartisan interest in reevaluating the PATRIOT Act.
  I would like to take a moment to talk about the SAFE Act and why it 
is a reasonable proposal.
  As my colleagues Senators Craig and Durbin have discussed, the SAFE 
Act makes important modifications to enhance judicial review of the 
FBI's roving wiretap and so-called ``sneak and peek'' search 
activities.
  I would like to comment on another important modification to the 
PATRIOT Act contained in the SAFE Act, the section 215, or business 
records, fix.
  Prior to the PATRIOT Act, the Government could compel the production 
of only certain business records in connection with a counter-
intelligence or international terrorism investigation, namely, hotel, 
rental car, airline, and storage facility records. This was a narrow 
set of records, and so it made sense to change the law. I agree with 
that change, to allow the FBI access to more categories of business 
records.
  But the PATRIOT Act went too far because it also weakened the ability 
of the courts to exercise their proper role as a check on the executive 
branch, and it took away the requirement of individualized suspicion. 
The PATRIOT Act changed the standards for allowing the FBI access to 
such records. Prior to the PATRIOT Act, investigators had to state, in 
their application to the secret FISA court, specific and articulable 
facts giving reason to believe that the person to whom the records 
pertained was a suspected terrorist or spy. If a court agreed, it would 
issue the order.
  The PATRIOT Act, however, vastly expanded this power so that 
investigators no longer have to show ``specific and articulable 
facts.'' Now, investigators need only state that the records are 
``sought for'' a counter-intelligence or international terrorism 
investigation. Upon receiving the application for a court order, the 
judge must--must--issue the order. He or she does not have discretion. 
The judge cannot review the merits of the request. For example, a judge 
cannot review facts to determine whether the scope of the request is 
reasonable. So long as the FBI asserts that the records are ``sought 
for'' a foreign intelligence investigation, the judge must issue the 
order.
  The SAFE Act sponsors and I, as well as librarians, privacy 
advocates, and an increasing number of Americans, believe this 
provision of the PATRIOT Act goes too far. We recognize that there is 
enormous potential for abuse if the FBI is allowed access to personal 
information, such as medical records, library records, or newspaper or 
magazine subscription records, all with no meaningful judicial review 
and without a requirement of some showing that the records pertain to a 
suspected terrorist or spy.
  The SAFE Act would simply re-insert a pre-PATRIOT Act standard so 
that he role of the judge as a check on the executive branch is real 
and effective. Like the standard prior to the PATRIOT Act, under the 
SAFE Act the FBI would need to state specific and articulable facts to 
support its application. The SAFE Act simply restores the judicial 
oversight that existed prior to the PATRIOT Act, giving the court the 
power to ensure that the Federal Government is not engaging in a 
fishing expedition at the expense of innocent Americans. This is a 
reasonable response to protect both our security and our privacy.
  The administration has not shown how this prudent safeguard would 
harm the fight against terrorism or impair its ability to get access to 
information it needs to protect the country.
  I might add that according to the administration, as of last 
September, almost 2 years since enactment of the PATRIOT Act, the 
administration claims it had not yet used section 215 of the PATRIOT 
Act. It is unclear whether they have used it since that time, and I 
have recently sent the Attorney General a letter asking him whether it 
has been used. But regardless of whether it has been used zero times or 
a handful of times, it is nevertheless difficult to understand how re-
inserting an important judicial check would harm the fight against 
terrorism.
  I urge the administration to reconsider its position on the SAFE Act. 
The American people have thoughtfully expressed their fears and wishes. 
They want the Federal Government to protect them against terrorism, but 
they also want the Federal Government to be respectful of the 
Constitution every step of the way.
  With passage of the SAFE Act, we can reassure the American people 
that we are working to protect their rights and liberties, as well as 
their safety. I urge my colleagues and the administration to support 
the SAFE Act.
  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. 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.
  The majority leader.
  Mr. FRIST. I thank the Chair.
  (The remarks of Mr. Frist and Mr. Hatch pertaining to the 
introduction of S. 2290 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. GRAHAM of Florida. Mr. President, I will withhold at the request 
of the leader.
  The PRESIDING OFFICER. The Democratic leader.

[[Page 6761]]


  Mr. DASCHLE. Mr. President, let me thank the distinguished Senator 
from Florida. This will only take a moment, but I yield the floor to 
accommodate the majority leader.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, I thank our colleague from Florida. He has 
been sitting patiently. I already interrupted another Senator, but this 
will be very brief.
  Mr. President, over the next few minutes, I want to outline what the 
plans will be over tonight and tomorrow, briefly.


                 Unanimous Consent Agreement--H.R. 3108

  First, Mr. President, I ask unanimous consent that at 11 a.m., on 
Thursday, April 8, the Senate proceed to the conference report to 
accompany H.R. 3108, the pension equity bill. I further ask consent 
that there then be 4 hours equally divided for debate between the two 
leaders or their designees. Finally, I ask unanimous consent that 
following the use or yielding back of time, the Senate proceed to vote 
on adoption of the conference report, with no intervening action or 
debate.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. FRIST. Mr. President, tomorrow we will have morning business. We 
will say more about that. Then at 11 o'clock, we will proceed to this 
conference report for up to 4 hours. I am not sure we will use that 
entire 4 hours, but there will be up to 4 hours equally divided on this 
very important bill, followed by a vote.
  On a separate issue we have been addressing all day--actually the 
last several weeks--the FSC/ETI or JOBS bill, we are making real 
progress. As mentioned shortly after the vote earlier this afternoon, 
we are working on a list of amendments, a finite list of amendments, 
that would be agreed to by both the Democratic side and the Republican 
side.
  We made real progress. I was very hopeful we would be able to, around 
this time, come back and say: This is the list; this is exactly how we 
are going to handle it. But we will continue to work over the next 
several hours and do want to announce that progress. We will have more 
to say either later tonight but more probably early first thing in the 
morning.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I want to confirm what the majority 
leader has reported. I think we have made real progress. We are not 
quite there, but I think we will be there. I can say, with great pride 
and satisfaction, I appreciate very much the cooperation of virtually 
every member of our caucus. I thank them for that cooperation and would 
hope perhaps by sometime tomorrow morning we will be able to reach an 
agreement.
  I ask the majority leader if he anticipates any more rollcall votes 
tonight, given where we are with regard to the current schedule.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, in response, through the Chair, we will 
have no more rollcall votes tonight. Assuming we will be able to reach 
an agreement on a finite list on the FSC/ETI bill, I would expect we 
would not have votes on Friday of this week either.
  Again, I thank our colleague from Florida. That will be the last 
interruption, I promise.
  The PRESIDING OFFICER. The Senator from Florida.


                   Cost of Prescription Drug Benefit

  Mr. GRAHAM of Florida. Mr. President, there is a recurring pattern in 
this town. An issue comes to our attention. It is red hot. It creates a 
great deal of controversy. Two months later it is forgotten. My effort 
tonight is going to be to resurrect one of those issues because I think 
is it not only extremely important, but it is also urgent that we give 
it attention.
  The issue is the administration's cost estimate of the Medicare 
Modernization and Improvement Act and the circumstances surrounding the 
failure to release that cost estimate to the Congress. As I said, this 
is old news, but let me just refresh some people's memories.
  As early as the summer of 2003, the administration's actuaries, the 
people who work for the administration in the Department of Health and 
Human Services, projected that the 10-year cost of the Medicare 
legislation, which among other things provided a prescription drug 
benefit, would be $534 billion over a 10-year period. It is also old 
news that Mr. Rick Foster, Chief Actuary of the Medicare Program, was 
ordered by the administrator of the Centers for Medicare and Medicaid 
Services--at that time Mr. Thomas Scully--to withhold critical 
actuarial data from Congress and that failure to abide by this order 
might well result in Mr. Foster being fired.
  What is yet to be news are the reasons for the months' long delay in 
disclosing that estimate to the American public and to the Congress. It 
has now been 10 weeks since we found out the Medicare bill that we had 
represented to us as costing $400 billion over 10 years would actually 
cost $534 billion, according to the administration's own actuaries--10 
weeks. We have had no explanation for the reasons for the delay, 
despite the following quote by Secretary Thompson, the Secretary of the 
Department of Health and Human Services, on March 16 of this year. What 
did the Secretary say?

       There seems to be a cloud over this department because of 
     this. We have nothing to hide. So I want to make darn sure 
     that everything comes out.

  Along with other members of the Finance Committee, I have asked the 
chairman and the ranking member to hold a hearing on the cost estimate 
and the reasons for its late disclosure. Given his strong track record 
on Medicare oversight, I am confident these two fine Senators will do 
so.
  I want to be clear about a couple of things:
  One, it is not the cost per se that is troubling to me. In a moment 
of full disclosure, I voted for a prescription drug benefit that cost 
more than $400 billion. I voted for a prescription drug benefit that 
cost more than $534 billion. But I was voting for a prescription drug 
benefit that would at least provide a reliable Buick-style benefit to 
our seniors. What has now happened is we have learned that we passed a 
Yugo-like prescription drug benefit and are now paying Cadillac prices 
for it.
  The second thing I wish to be clear about, some of my colleagues have 
suggested that the only estimate that matters is the Congressional 
Budget Office because Congress is legally required to rely on the CBO 
numbers. You may recall, as a youth, reading some Charles Dickens 
books, including possibly Oliver Twist. In that book, when confronted 
with a similar argument, Mr. Bumble said:

       If the law supposed that, the law is an ass, an idiot.

  Mr. Bumble's perspective on the law aside, it is indeed true that 
Congress uses CBO numbers as our official scorekeeper, and I am not 
suggesting that at this point we alter that process. At the same time I 
don't think anyone would disagree that it is in America's best interest 
and the best interest of Congress to have as much information as 
possible before we vote on significant pieces of legislation. That 
would clearly include the insights of the person most knowledgeable 
about the likely cost of this program--the actuary of the very 
department that will have the responsibility for administering the 
program.
  In fact, it seems information was deliberate, purposefully withheld 
from the Congress. That action of withholding was contrary to past 
practices. Moreover, it appears to directly violate the spirit of the 
Balanced Budget Act of 1997 which confirmed the independence of the 
Chief Actuary and the desire of Congress to have access to his relevant 
cost projections.
  The fact that the official cost has appropriately been determined by 
CBO is not the point, nor is the point the fact that there was a 
difference in the cost estimates between the Congressional Budget 
Office and the Department's actuaries. We know that different analysts 
will frequently arrive at different conclusions. The point is this: the 
enormous magnitude of the difference and the efforts apparently taken 
by this administration to keep that huge

[[Page 6762]]

difference hidden from public and congressional scrutiny. That is the 
point.
  The point is the Chief Actuary had information that would have been 
valuable to us, Republicans and Democrats alike, in our deliberations 
long before we took our vote on the final conferenced version of the 
Medicare prescription drug legislation. This information was 
deliberately withheld.
  The fact is, if the White House had released to the public and the 
Congress its own actuary's estimate of the cost of this Yugo 
prescription drug benefit, the legislation would clearly not have 
passed.
  The Finance Committee has a particular obligation to investigate this 
deception. As a member of that committee, I understand we have an 
obligation to seniors who are depending on an affordable, quality 
prescription drug benefit. We have an obligation to taxpayers who will 
be paying for that benefit. We have an obligation to our fellow 
colleagues to whom we declared, we represented that this plan would not 
cost more than $400 billion, cross my heart and hope to die.
  We have an obligation to get answers to these questions:
  What did the President know regarding the much higher cost estimated 
by his own actuaries and when did he know it? For someone from 
Tennessee, that might be a familiar question.
  If the President did not know that one of his stated priorities was 
estimated by his actuaries to far exceed the cost ceiling for this 
Medicare change--$400 billion over 10 years--who within his 
administration failed to notify him of this extraordinary cost overrun?
  Third, what actions, if any, were taken by the Department of Health 
and Human Services, the Office of Management and Budget, or the White 
House itself to prevent the timely and accurate reporting of 
information to Congress on the cost of this Medicare bill?
  Finally, who has the President held accountable for this deception 
and what sanctions have been imposed?
  These are ``rational, critical, important to the Congress and the 
public to know the answers'' questions. One of the immediate impacts we 
are going to have because of this withholding is that the Congress, the 
Senate, now the House, have recently passed budget resolutions. These 
budget resolutions cover fiscal year 2005, which begins October 1 of 
this year, running through fiscal year 2009. In that budget resolution, 
as passed by the Senate, the baseline cost of the new Medicare 
prescription drug provisions and other matters that were included in 
that legislation is $165 billion over 5 years. The number, as 
determined by the administration's own Office of the Actuary in the 
Department of Health and Human Services, is $231 billion.
  Mr. President, what are we going to do when we face the question of 
funding this prescription drug benefit--what I suspect to be likely 
closer to its true cost, $231 billion, as opposed to $165 billion, 
CBO's number. Are we going to have to have a point of order with 60 
votes every time we exceed the clearly inadequate number in order to 
provide the benefit that we are now running millions of dollars worth 
of television ads telling the seniors of America they are about to get 
a new benefit, without any changes in the Medicare Program?
  The Finance Committee needs to closely examine these different 
numbers. I suggest a couple of places to start. Approximately 25 
percent of the difference between CBO and the actuaries is in one area, 
and that is what will be the effect of increasing the number of persons 
who are enrolled in health management organizations. This legislation 
not only dealt with prescription drugs, but it also substantially 
increased the funding for HMOs and insurance companies in order to 
create an atmosphere that would induce new Medicare beneficiaries to 
change their form of service from fee for service to traditional 
Medicare and to join an HMO.
  In fact, the CBO estimated it would cost an additional $14 billion to 
do that. The administration estimates it will cost $46 billion. You 
might ask why does it cost more. I thought the purpose of using an HMO 
for Medicare beneficiaries was it would save money. It was supposed to 
get people into a more organized health care system; it was supposed to 
encourage HMOs to provide preventive services so people would not get 
as sick, and they would have a higher quality of life and less health 
care costs.
  Well, I am shocked, and I am certain most Members of Congress are 
shocked, to find the administration finds it will cost $46 billion more 
to provide health care services to those persons who are induced by the 
benefits of this legislation to join an HMO than if they stayed where 
they were. So one question we need to know is, why are we scaring 
seniors into HMOs, when this is clearly harmful to the financial 
structure of the Medicare Program?
  The second point I hope the Finance Committee will review is the 
prohibition inserted into this legislation against the administrator of 
the program and the Secretary of the Department of Health and Human 
Services, negotiating on behalf of Medicare beneficiaries to get the 
best possible prices for prescription drugs. We have an almost 
analogous situation, except the circumstances are reversed. The 
Secretary of the Veterans' Administration is directed to negotiate for 
the prescription drugs his largest hospital system in the world 
provides. Guess what. He has negotiated so well the cost of 
prescription drugs in a VA hospital is less than half of what it would 
be if you bought the same drugs at retail at a local drugstore.
  Can you believe the Congress of the United States has passed a 
provision that prohibits the head of Health and Human Services from 
getting the same good prices for our seniors?
  Let me say, as an aside, we have seen some extremely distressing 
numbers from the trustees of the Medicare Program. In fact, they 
released a report within the last 30 days which indicated there has 
been a 7-year shortening in the term--the years in which Medicare will 
go insolvent. As recently as last year, it was estimated the program 
would go insolvent in 2026. In 1 year, they have reduced that to 2019. 
So we have a system that, we are being told by our best experts, in a 
little more than 15 years is going to be insolvent. It seems to me 
there ought to be a sense of urgency to get every possible relief we 
can to this program so we do not deny the promise that has been made to 
the American people, to the working men and women, when they reach 
retirement age.
  I believe one thing we can do immediately, in addition to reviewing 
this issue of health maintenance organizations, is to give to the 
Secretary of HHS and the administrator of the Medicare Program the 
authority to negotiate for the hospital portion of prescription drugs. 
We have passed a new prescription drug benefit for outpatients. But 
since the beginning of Medicare, Medicare has paid for prescription 
drugs that were dispensed in a hospital setting. We ought to do 
everything we can, in light of the fact that 100 percent of the trust 
funds for Medicare goes for part A--the hospital part--to lower the 
cost of the hospitals. One immediate way we can do it is by assisting 
the hospitals in the same way VA assists its hospitals, to lower the 
cost of their prescription drugs.
  I am hopeful the Finance Committee will hold a hearing on this 
important issue before the Memorial Day recess. This would give us an 
opportunity to fully understand the differences between the two 
estimates, the implications of those differences, and the process by 
which we learned at such a late date the administration was going to 
project such an enormous difference. And most important, as a Congress, 
we need to understand what happened and how the Congress can correct 
the consequence of this deception.


                                jobs act

  Ms. SNOWE. Mr. President, I rise today to support the Jumpstart Our 
Business Strength Act, a bill that provides much-needed tax relief to 
our Nation's manufacturing base in a manner that will not only protect 
but will create jobs. Without question, passing this bipartisan 
legislation will provide a major boost to the manufacturing sector of 
our economy.

[[Page 6763]]

  Indeed, this legislation is necessary because our country's 
manufacturers are in desperate need of help. Not only has America been 
hard hit by slow worldwide growth, but also has sustained significant 
job losses during the last few years.
  Although the economic statistics for March are a positive 
improvement, there remains cause for concern when one considers the 
profound erosion of U.S. manufacturing jobs in recent years. The damage 
this sector has sustained is nothing short of stunning. From July 2000 
through July 2003, nearly 2.8 million U.S. manufacturing jobs were 
eliminated. Incredibly, New England lost more than 214,000 
manufacturing jobs in the decade between June 1993 and June 2003.
  According to the National Association of Manufacturers, between 
January 2001 through January 2004, manufacturing employment in our 
Nation declined by 16 percent. In New England, there was a 20 percent 
decrease in manufacturing employment during that same time period. This 
means that between January 2001 and January 2004, New England's 
manufacturing sector employment declined by an alarming 28 percent 
faster rate than it did nationally.
  My home State of Maine has been shedding manufacturing jobs at an 
alarming rate over the past decade--and all the more so in the past two 
years. From January 1993 through June 2003, a 10\1/2\ year period, 
Maine lost 18,900 manufacturing jobs. More specifically, from July 2000 
to June 2003, Maine has lost 17,300 manufacturing jobs--the highest 
loss of any State during that time period.
  In addition to passing this legislation to reverse these trends, we 
are also here to replace the Foreign Sales Corporation/Extraterritorial 
Income, FSC/ETI, rules. Congress enacted these rules to make U.S. 
exporters more competitive overseas by reducing their maximum income 
tax rate on export income from 35 percent to about 29.75 percent. This 
incentive is necessary to offset the disadvantage that U.S. exporters 
face vis-a-vis foreign competitors who benefit from a territorial tax 
regime. Nevertheless, the World Trade Organization, WTO, determined 
that the FSC/ETI rules provide an impermissible export subsidy, meaning 
Congress must repeal those rules or face over $4 billion in trade 
sanctions. Those sanctions began to take effect March 1.
  At the same time, repealing these rules will result in a nearly $50 
billion tax increase on the manufacturing sector over the next ten 
years. Consequently, we need to replace the FSC/ETI regime with an 
appropriate substitute that not only complies with WTO rules but, more 
importantly, protects our own manufacturing base.
  Our objectives should therefore be clear: not only must we pass 
legislation to comply with international trade law, but more 
importantly, we need to offer our country's manufacturers with a 
solution that will jumpstart their production and create jobs, and we 
must do so right now. Were we to neglect this duty to ensure that our 
nation's manufacturers are simply given the chance to compete on a 
level playing field with foreign competitors, we would only be 
compound-
ing the current situation--a result with which I am sure very few 
persons, particularly those workers who have lost their jobs would be 
pleased.
  Our task, then, is to identify the best way to ``reallocate'' the $50 
billion in revenues that replacing the FSC/ETI rules will generate and 
ensure that those funds continue to benefit their original 
beneficiary--namely our manufacturers. For that reason, I am pleased 
that the main component of this bill provides direct tax relief to the 
manufacturing sector of our economy. By permitting manufacturers to 
exclude from tax a portion of their income earned directly from 
manufacturing operations that employ U.S. workers and are located in 
the United States, we will continue to ensure that our Nation's 
manufacturers are on a level playing field with foreign competitors, 
and we will accelerate the overall economic recovery that is so 
desperately needed and that is already underway.
  This legislation, therefore, provides poignant, targeted tax relief 
directly into the sector of our nation's economy that needs it most. In 
short, this income tax rate reduction for manufacturers will reduce 
their cost of doing business and increase their ability to compete in a 
global economy. Consequently, these businesses will be able to reinvest 
this savings directly into their operations, thereby increasing 
productivity and creating jobs.
  To achieve these results, it is essential that this tax relief must 
be available for all manufacturers--regardless of entity 
classification. As such, I along with several Senators worked hard 
during the Finance Committee's markup to insist that this bill apply to 
small businesses that operate in the form of S-corporations, 
partnerships, limited liability companies, and sole-proprietorships. 
With small business manufacturers constituting over 98 percent of our 
Nation's manufacturing enterprises, employing 12 million people, and 
supplying more than 50 percent of the value-added during U.S. 
manufacturing, it is imperative that we not turn our backs on these 
hard working taxpayers.
  Despite the significance that small businesses play in our country's 
economy, and despite the fact that not every manufacturer operates as a 
corporation, some contend that in place of this bill's targeted 
manufacturing relief, a more appropriate course of action would be to 
provide an across-the-board 2 percent tax cut for all domestic 
corporations--regardless if they are manufacturers.
  I find this alternative problematic for two reasons. First, this 
proposition forgets the reason why we are here in the first place--
namely to reallocate tax cuts that Congress provided specifically for 
domestic manufacturers in an effort to maintain their international 
competitiveness. Doesn't it make sense to ensure that all 
manufacturers, which are the primary beneficiaries of the FSC/ETI 
rules, continue to be the primary beneficiary of its replacement 
legislation, particularly when the manufacturing sector of our economy 
is already struggling to compete and preserve jobs?
  After all, the main goal of this bill is to increase the 
competitiveness of our manufacturing base and stop the current job loss 
trend, meaning legislation that is not necessarily focused exclusively 
on manufacturing sector might fall short of this goal. Rather, the 
focus must remain on promoting domestic job creation, and the 
legislation before us accomplishes this task much more effectively than 
would an across-the-board tax cut that is exclusive to corporations.
  In addition, an across-the-board corporate rate cut limits this tax 
relief to only corporations--something that is simply unacceptable as 
small businesses, many of which are S-corporations, limited liability 
companies, partnerships, and sole-proprietorships, are the true engine 
that drives this economy and are responsible for a majority of domestic 
job creation. Indeed, small businesses account for 97.5 percent of 
Maine businesses . . . 98 percent of America's manufacturing enterprise 
. . . and contribute three-quarters of all new jobs nationwide. It is 
therefore imperative that this legislation, which is intended to 
``Jumpstart Our Business Strength,'' include all manufacturers, 
particularly all small businesses, so that we continue this upward 
trend and reinvigorate America's entrepreneurial spirit.
  Along those lines, I am also pleased that Chairman Grassley 
incorporated several other of my provisions during the Finance 
Committee's markup of this bill. For example, current law permits small 
businesses to expense, rather than depreciate, up to $100,000 spent on 
equipment used in their trade or business. While this provision 
encourages capital investments and stimulates economic growth, the 
current phase-out limits the number of small businesses that can 
qualify.
  My provision already in this bill increases the phase out threshold--
thereby increasing the number of eligible small businesses for this 
much-needed tax relief. In turn, these taxpayers will be provided with 
greater incentive to expand their operations that will not

[[Page 6764]]

only increase productivity but ultimately create jobs.
  Another one of my provisions included in this legislation is based on 
my bill S. 885--The Small Business Investment Company Capital Access 
Act of 2003. In short, this bill provides that certain government-
guaranteed debt capital of Debenture Small Business Investment 
Companies, SBICs, is excluded from the definition of ``debt'' for 
purposes of the unrelated businesses taxable income rules.
  This change is necessary because under current law, potential tax-
exempt investors such as pension funds and universities are dissuaded 
from investing in small businesses due to the tax liability that would 
result from the SBICs. By eliminating this problem and expanding the 
capital available for SBICs to invest in the nation's small businesses 
at the modest rate of $1 million per year, this provision has the 
potential to result in $500-$600 million of new capital investments in 
SBICs, which in turn will create thousands of jobs each year.
  Furthermore, this bill includes specific provisions at my urging that 
will benefit greatly many taxpayers in my home State of Maine. In 
committee, I worked to ensure that the tax relief in this bill was 
extended to ``unprocessed softwood timber.'' The Softwood Lumber 
industry, like paper and steel, has faced unfair trade from countries 
that subsidize their products and dump them on the U.S. market. For 
that reason, combined with the fact that this legislation is intended 
to benefit manufacturers in general and not only exporters, it is 
essential that this legislation extend this tax relief to the timber 
industry.
  Similarly, I urged Chairman Grassley to include a provision in this 
legislation that would classify gains resulting from the sale or 
exchange of timber as capital rather than ordinary. The crux of this 
provision is to change the way in which capital gains are calculated 
for timber by taking the amount of gain and subtracting three percent 
for each year the timber was held. This change is necessary because 
although individuals pay a maximum capital gains rate of 15 percent, 
corporations must still pay a 35 percent rate. As such, this change 
will reduce the rate of tax for corporations that sell timber, 
therefore making the U.S. forest products industry more competitive 
internationally and preserving domestic jobs.
  In addition to these provisions that already are included in the 
bill, I am working with Chairman Grassley on an amendment that I have 
filed that will not only spur economic growth but that will also go a 
long way in bolstering our national security. Currently, navy 
shipbuilders are treated unfairly by the tax code because they are 
required to pay tax based on an expected percentage of their profits. 
This treatment is problematic because oftentimes, they do not receive 
payment for several years, meaning the income tax has an overly 
burdensome effect on their cash flow and their overall production.
  My amendment would change this treatment by placing navy shipbuilders 
on equal treatment with commercial shipbuilders in allowing them to pay 
40 percent of their estimated income tax during the contract and the 
remaining 60 percent upon completion of the contract so long as the 
contract does not exceed 8 years. Importantly, this amendment does not 
in any way affect the amount of tax that navy shipbuilders will pay; 
rather, it simply affords a more equitable payment schedule to allow 
these taxpayers to satisfy more of their tax obligation at a time in 
which they have cash in hand. I hope that in working with the chairman, 
we will find a way to address this unfair disparity that is harming our 
Nation's naval shipbuilders.
  Accordingly, I believe that the bill before us strikes the proper 
balance of providing needed tax relief to the taxpayers in our economy 
who need it most. It has taken a great deal of work to get us where we 
are today, yet I firmly believe that providing targeted, affordable tax 
relief to the manufacturing sector of our economy is certainly the 
right path to choose in repealing the FSC/ETI rules.
  The key here is that this bill simply reallocates the revenue that 
repealing the FSC/ETI rules will raise and distributes it directly to 
the primary beneficiaries of those rules--our country's manufacturers, 
which is indeed appropriate as the manufacturing base is in dire need 
of help.
  While the legislation also simplifies the international tax code and 
contains other miscellaneous tax cuts designed to create jobs, it does 
so without increasing the federal budget deficit because it contains 
tax offsets that will thwart taxpayers' participation in illegal tax 
shelters and abusive leasing transactions. Consequently, unlike 
previous tax bills, this legislation is revenue neutral. Therefore, not 
only is this bill affordable, but it is much needed in order to bolster 
our manufacturing base and enhance the competitiveness of the U.S. 
based businesses.
  Thank you, Mr. President.


                        medical liability reform

  Mr. CHAFEE. Mr. President, earlier today I voted in favor of invoking 
cloture on the motion to proceed to S. 2207, the Pregnancy and Trauma 
Care Access Protection Act. My vote was not an endorsement of S. 2207 
as it was introduced in the Senate. In fact, I have concerns about 
various aspects of the bill--including the $250,000 cap on noneconomic 
damages--and I anticipate supporting amendments to S. 2207 if the 
Senate has an opportunity to fully debate this legislation.
  However, I do believe that reform of the medical liability system 
should be considered as part of a comprehensive response to surging 
medical malpractice premiums that endanger Americans' access to quality 
medical care by causing doctors to leave certain communities or to 
cease offering critical services, such as obstetrical care. For this 
reason, I voted for cloture on S. 2207 in an effort to move the debate 
forward.
  The PRESIDING OFFICER. The majority leader is recognized.

                          ____________________