[Congressional Record (Bound Edition), Volume 151 (2005), Part 21]
[Senate]
[Pages 27934-27939]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      PATRIOT ACT REAUTHORIZATION

  Mr. SUNUNU. Mr. President, today I come to the floor to speak about 
the pending reauthorization, extension of the PATRIOT Act, the 
legislation passed in the wake of the September 11 attacks. This debate 
is fraught with emotion because we were all outraged at what happened 
on September 11. Everyone in America and around the world shares a 
desire to address the threat of global terrorism, to give law 
enforcement appropriate powers to pursue those terrorists. But we want 
to make sure in doing so we pass legislation that is in keeping with 
the principles on which our country was founded--principles of 
individual liberty and freedom.
  Ultimately, this debate about renewing, extending the PATRIOT Act is 
about police powers, the power that the people, through their elected 
representatives, give to government, give to agents of government. 
Whether it is at the State, local, or Federal level, we give certain 
police powers to government to conduct searches. We give the government 
power to detain individuals. We give the government power to serve 
subpoenas, to confiscate records. We do it because we think ultimately 
it is in the public interest to do so. But just as the Framers 
recognized, we need to provide a balance, to balance these very 
forceful, very powerful tools with personal freedom, civil liberty.
  So as a result, we require the government, or government agents, to 
show cause before they conduct a search. We set standards for evidence 
in a courtroom. They need to meet certain standards of evidence to 
conduct a search, certain standards of evidence to detain an individual 
or a suspect. And, of course, we have the principle of due process, 
trial by jury, and the ability to have an appeal heard in a court of 
law.
  Some people may say: We know that. These are fundamental. These are 
basic to our system of justice. But it is important that we are 
reminded of these basic principles if we are going to get the 
reauthorization and the extension of the PATRIOT Act correct.
  This is not a new set of issues. These are the very issues 
contemplated by the Framers. In many respects, these police powers are 
issues that alarmed the Framers--and I say alarmed because they were so 
concerned about the powers of Government and the powers of the State 
that they wrote specific protections into the Constitution. The fourth 
amendment, protecting from unreasonable search and seizure, 
specifically addresses the threshold of probable cause, that the 
Government shall show probable cause before it conducts search and 
seizure of personal property.
  The fifth amendment protects us from self-incrimination. We have all 
seen enough Perry Mason to understand what it means to invoke one's 
rights under the fifth amendment. It speaks specifically about due 
process and the right to an open, fair due process when one is being 
prosecuted, whether it is for a criminal act or whether we are 
prosecuting one of these powers of search and seizure, a power of the 
State to issue a search warrant.
  The sixth amendment speaks specifically about a right to a trial and 
what it means to have one's case heard before a jury or in a court of 
law. All of these amendments and others, but

[[Page 27935]]

these three in particular, speak directly to balancing the rights of 
individuals and the liberty of individuals with the powers of the 
State.
  The Framers were, quite frankly, very distrustful of Government and 
the power of the Federal Government. I try to be a little less 
pessimistic in my work in the Senate, but I must be frank with my 
colleagues in stating that on this issue, on the PATRIOT Act, I have 
begun this debate more from a position of mistrust and concern about 
the work that had been done in preparation for this reauthorization and 
the position taken by the administration. I will speak to that in a 
moment, but it is important to note that on the Senate side we had 
bipartisan agreement and on the Senate side we had terrific leadership 
by Senator Specter on these issues. He understands this balance 
probably as well as anyone in the Senate. I do not fault his work as a 
chairman and certainly not the work of the Senate as a whole, given 
that we had incorporated a number of protections in our legislation.
  The Justice Department began this process well over a year ago, 
taking the position that we should make all the provisions of the 
PATRIOT Act permanent and we should not make any changes, we did not 
need to make any changes. This is legislation that was passed just 6 
weeks after September 11. I would not say it was passed in haste, but 
it was passed during a very difficult and emotional time in our 
country's history. We had sunsets on 16 provisions in the PATRIOT Act 
for just that reason. We knew there was a lot of uncertainty as to how 
this war on terrorism would progress, what tools law enforcement really 
did need to pursue legitimate terrorist suspects, what we needed to do 
to get our hands around financial records or other financial 
transactions that might lead investigators to uncover terrorist cells 
in America or around the world.
  Anyone who understands the legislative process knows that was not a 
perfect bill, no matter how hard people worked on it. To suggest that 
when it came time for reauthorization there would be no need for 
changes I believe suggests a lack of understanding of the process of 
Congress, the legislative process, and how things get put together on 
Capitol Hill, or lack of understanding about the substance in the bill, 
not understanding all the provisions in the bill and how they did in 
some cases unnecessarily infringe on civil liberties, or perhaps an 
arrogance that leadership, those who were responsible for providing 
leadership within the Justice Department, knew they were not abusing 
any of the provisions in the law so no changes needed to be made. I 
will speak to that argument shortly, but I think it is very 
unfortunate.
  So when one has this kind of legislation, as sweeping in scope as 
this is, and suggests when it comes time to deal with these sunset 
provisions that no changes need to be made, I think shows a lack of 
substantive reflection on the balance between the police powers of the 
State I spoke about and civil liberties on the other hand.
  Two years ago, I joined with a number of my colleagues in introducing 
the SAFE Act: Senators Durbin, Salazar, and Feingold on the Democratic 
side, Senators Craig, Murkowski, and myself on the Republican side. We 
spoke specifically to a few provisions in the PATRIOT Act where we 
thought we could do a better job of protecting civil liberties.
  The 215 section that allows the subpoena of business or library 
records, the national security letter provision--the national security 
letter is a sweeping order issued without the approval of a judge that 
gives investigators access to financial data, to medical data, or to 
other transaction records; the roving wiretap provision that is 
necessary because we have new communication technologies that are more 
mobile than ever but where we still need to do a good job of specifying 
who the target is of that roving wiretap; delayed search warrants--
again, sometimes there is going to be a need for conducting a search 
warrant before notifying a target so that the investigation is not 
jeopardized. But we should have specific provisions written in the law 
for notifying that target after a certain period of time. As it was 
written, there was no period specified for notification.
  Of course, the idea of sunsets is important to civil liberties 
anytime one is dealing with law enforcement legislation, because a 
sunset calls on Congress to come back, look at how a law was used, look 
at how it was implemented, how it affected civil liberties, and make 
appropriate changes.
  I ask unanimous consent to speak for an additional 10 minutes.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I have no objection. I add to that consent 
that I would then follow the distinguished Senator from New Hampshire 
on the same subject.
  Mr. SUNUNU. I so modify my request.
  Mr. ALEXANDER. Reserving the right to object, I ask unanimous consent 
to follow the distinguished Senator from Vermont.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SUNUNU. We introduced the SAFE Act to deal with very specific 
areas where we thought the PATRIOT Act needed to be improved to better 
protect civil liberties. Some would argue that with the PATRIOT Act, as 
it has been rewritten, the conference agreement, that there were only a 
few areas now where there is a disagreement and so we ought to accept 
it as it is. I make a broad argument, though, that simply because we 
are conducting shortcuts on civil liberties in only a few areas is 
simply not an effective argument. I think where civil liberties are 
concerned, as I illustrated with the Framers' concerns, we ought to do 
everything in our power to make sure proper protection is provided.
  A few key points about the weaknesses that remain in the PATRIOT Act, 
and with these weaknesses I will not be able to support the final 
conference report. I certainly will not support moving forward with the 
conference report, in part because I think these are substantive 
problems but also because they are problems that should be easily 
addressed in a reworked conference agreement. The first deals with the 
business and libraries provision, section 215. In section 215 we have 
established a very broad standard, too broad a standard, for 
investigators to get access to sensitive records--whether it is at a 
business or a library; it makes no difference. The standard is that the 
records simply be shown as relevant to an investigation. That does not 
sound inappropriate, but as a legal standard that means records could 
be subpoenaed that have no direct connection to a particular suspect.
  As a result, the records of many innocent Americans, or the burden 
placed on businesses to continually produce records under this 
provision is going to be far too onerous.
  There is also associated with this provision, this business records 
subpoena power, a permanent automatic gag order that prevents you from 
discussing the fact that this order has been issued to you as an 
individual or your business, and there is no judicial review of that 
gag order. I think this is a fundamental flaw in this conference 
report, the idea that you have been served with a permanent gag order 
to restrict your free speech, to restrict you from talking about that 
gag order, and it is permanent and you have no ability to appeal it in 
a court of law.
  I would argue that taking your case, your appeal before a judge is 
fundamental to our system of justice in the United States of America. I 
would further argue that it in no way undermines law enforcement's 
ability to conduct an investigation to give the business or the 
individual the opportunity to appeal that gag order in a court of law. 
The argument that it might cost a little bit extra is ridiculous in the 
face of the need to protect individual civil liberties.
  The system of judicial review for these section 215 subpoenas simply 
is not acceptable. Similarly, the system of judicial review on national 
security letters fails to meet the important test

[[Page 27936]]

of balancing individual civil liberties. There is a very low threshold 
for getting a national security letter. It is not approved by a judge. 
The threshold is merely a ``showing of relevance,'' once again not a 
direct connection to a suspect, which is very problematic. Moreover, 
the threshold for overturning the gag order--again a restriction on the 
ability to even discuss the national security letter--is that you must 
show bad faith on the part of the Federal Government. That is virtually 
impossible. No individual, no business served with a national security 
letter will effectively be able to show bad faith on the part of the 
Federal Government, and therefore they will never have a national 
security letter or its accompanying gag order overturned.
  To have meaningful judicial review you have to have a meaningful 
standard, a reasonable standard of showing in that court of law. I 
think it is fair to say, if we look around the world at different 
governments' attempts to eviscerate the power of due process, this is 
one way to do it--to have judicial review, to ``let people have their 
case in a court of law,'' but set the standard of evidence or the 
standard for overturning an egregious decision so high that the 
government always wins. That is simply not acceptable where American 
civil liberties are concerned.
  Finally, let me turn to a few of the arguments posed or made to 
individuals, such as Senator Leahy or Senator Feingold or me, who have 
brought forward these objections. One argument is what I would describe 
as a very broad argument, that we need to extend the PATRIOT Act, we 
need to fight terrorism, we need to make sure we don't undermine the 
ability of law enforcement in their work to deal with terrorist 
threats. I agree. Senator Leahy--I will take the opportunity to speak 
for my colleague from Vermont. He agrees we need to do all of these 
things. But that is not a substantive argument for not making these 
changes he and I support. We are all for fighting terrorism. We are all 
for extending the PATRIOT Act. I do not oppose the idea of subpoenaing 
business records or even library records or the idea of a national 
security letter. What I oppose is having such a powerful government 
force in place without countervailing protections for civil liberties.
  A second argument is one I mentioned earlier: for the Justice 
Department to say we have not abused any provisions in the current 
PATRIOT Act so just extend them all as written. It doesn't matter to me 
whether it is a Democratic administration or Republican administration, 
the argument that you have not abused a poorly written law is no 
argument at all for extending and making permanent that poorly written 
law. If it does not protect civil liberties, we should modify it. We 
should make sure the protections are there so that no matter who holds 
the reins of power, in the executive or the legislative or the judicial 
branches of Government, those freedoms continue to be protected.
  A third argument is if we do not move forward, if this bill fails to 
get a cloture vote this week and it goes back to conference, it will 
only get worse. Let me get this straight. If you vote against a bill 
that doesn't adequately protect civil liberties, we are going to take 
it back to conference and compromise civil liberties even further? I 
think that is an outrageous argument to make. I think there are some 
people who are making it, or who have made it, who do not intend it to 
be taken that way. But I think it is only fair that it be taken that 
way. That is an inappropriate threat. If the attitude of the conferees 
is they will further restrict civil liberties if they do not get this 
poorly written bill passed, then perhaps no law is better.
  I do not believe that. I think there ought to be a willingness to 
make improvements. Again, there are no specific reasons for how these 
changes that I have described--judicial review of a 215 gag order, a 
better threshold for overturning an NSL there is no substantive 
argument that I have heard for how these would undermine law 
enforcement's ability to pursue terrorists. These arguments simply do 
not hold up.
  Benjamin Franklin, 200 years ago, observed that:

       Those who would give up Essential Liberty to purchase a 
     little Temporary Safety deserve neither Liberty nor Safety.

  Those words are as true today as they were over 200 years ago. There 
is no reason to compromise the right to due process, the right to a 
judicial review, to fair and reasonable standards of evidence, in the 
pursuit of our security and the pursuit of terrorists wherever they may 
be around the world. I think making these changes is reasonable. They 
are fair.
  I have joined with Senator Leahy in introducing a 3-month extension 
of the existing PATRIOT Act to ensure that we have plenty of time, in a 
reasonable and thoughtful way, to make very modest changes that would 
go a long way toward ensuring this is a better bill, that it is a bill 
that we can be proud of, and a bill that will protect civil liberties.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Vermont is recognized.
  Mr. LEAHY. Mr. President, first, if I might, I wish to compliment my 
colleague and neighbor from across the Connecticut River, Senator 
Sununu of New Hampshire. He has laid out very clearly and eloquently 
the reasons we should not be rushed into a bad bill. It is not because 
any of us here have any love of terrorists. Of course none of us do; no 
Americans do.
  On a September morning 4 years ago, nearly 3,000 lives, American 
lives, were lost--not in a foreign nation but on our own soil. Our 
lives as Americans changed in an instant. There is not a person within 
this Chamber who does not remember exactly where he or she was when 
they heard the news of the attacks of 9/11. In the aftermath of those 
attacks, Congress moved swiftly to pass antiterterrorism legislation. 
We moved as a Congress, as a Senate, as a House--not as Republicans or 
as Democrats, but as Americans, united in our efforts. The fires were 
still smoldering at Ground Zero in New York City when the USA PATRIOT 
Act became law on October 30, 2001, just 6 weeks after the attacks.
  I know how hard we worked. I was chairman of the Senate Judiciary 
Committee at the time. Many of us here in the Senate today worked 
together in that spirit of bipartisan unity. We resolved to craft a 
bill that would make us safer as a nation.
  Freedom and security are always in tension in our society, especially 
so in those somber weeks after the attacks. We tried our best to strike 
the right balance between freedom and security.
  The Senator from New Hampshire quoted Benjamin Franklin. As one reads 
the history of the founding of this Nation and what the Founders went 
through, his quote stands out so much. Benjamin Franklin, like the 
other Founders, knew that had our new country not worked, had the 
Revolution not worked, most of them would have been hanged for trying 
to break away from our mother country. When he spoke of a people who 
would give up their liberties for security deserving neither, he knew 
of what he spoke. And he set a key idea for the fledgling democracy of 
America, and it is one that I like to think through the generations we 
have strengthened. During my years in the Senate, I have done 
everything possible to strengthen that balance to maintain our 
liberties because if we do not maintain our liberties, at the best we 
have a false security. It is not a real security.
  One of the fruits of the bipartisanship of the PATRIOT Act, in trying 
to work out this balance, was the sunset provisions. Those key 
provisions set an expiration date of December 31, 2005, on certain 
Government powers that had great potential to affect the civil 
liberties of the American people. We are just weeks away from that date 
now.
  Some may wonder how these sunset provisions worked their way into the 
PATRIOT Act. They were put there by the Republican leader of the House, 
Dick Armey of Texas, and myself. We have entirely different political 
philosophies, but we agreed on one thing: If you are giving great 
powers to our Government, you want to make sure

[[Page 27937]]

there are some strings attached. It makes no difference whether it is a 
Republican administration or a Democratic administration, you want to 
make sure there are strings attached. Leader Armey and I insisted on 
these sunsets to ensure that Congress would revisit the PATRIOT Act 
within a few years and consider refinements to protect the rights and 
liberties of all Americans more effectively, and we prevailed on that 
point.
  Sadly, the administration and some in the leadership in the House and 
Senate have squandered key opportunities to improve the PATRIOT Act. 
The House-Senate conference report filed last week by Republican 
lawmakers falls short of what the American people expect and deserve 
from us. The bipartisan Senate bill, which the Senate Judiciary 
Committee and then the Senate adopted unanimously, struck a better 
balance.
  If I might, I wish to compliment the chairman of the Senate Judiciary 
Committee, Senator Arlen Specter, the senior Senator from Pennsylvania, 
and those Republicans and Democrats in this body who worked with him, 
as I did, to put together a fair and balanced bill which was able to go 
through our committee, which is sometimes heavily divided on issues. 
Instead, it went through the Judiciary Committee unanimously and passed 
the Senate unanimously. We worked together on that because we 
understand that the reauthorization of the PATRIOT Act has to have the 
confidence of the American people.
  Think for a moment. Governments can limit the rights of the people in 
their countries really in only two ways: they can do it by force of 
arms, by oppression and repression, as we have seen with totalitarian 
governments, or, if they have done it right, they can do it with the 
consent of the governed.
  As we are limiting some of these rights, as we are giving greater 
powers to our Government, we want to do it in a way where the American 
people--all of the nearly 300 million people in this great country--
would have confidence in what we have done, because we do not enforce 
our laws in this country by force of arms, by dictatorship; we do it 
with the consent of the governed.
  I believe what we passed in the Senate and in the Senate Judiciary 
Committee would have the confidence of the American people. But now we 
have pushed forward and changed that to flawed legislation which will 
not have that confidence and respect of the American people. The 
Congress should not rush ahead to enact flawed legislation to meet a 
deadline that is within our power to extend. We owe it to the American 
people to get this right. America can do better than this flawed 
legislation.
  The way forward to a sensible, workable, bipartisan bill is clear. It 
is very clear, as Senator Sununu said on the floor earlier this morning 
and as I have suggested. Yesterday, Senator Sununu and I introduced a 
bill to extend the sunset for the expiring PATRIOT Act powers until 
March 31, 2006. Give us until March 31 to get this right, give us until 
March 31 to have a bill that would have not only the respect of the 
American people but especially the confidence of the American people. 
Our laws work if we have confidence in them, and they fail if we do not 
have confidence in them.
  In offering this bill, Senator Sununu and I have been joined by 
Senators Craig, Rockefeller, Murkowski, Kennedy, Hagel, Levin, Durbin, 
Stabenow, Salazar, and others. It is a bipartisan effort to extend this 
deadline. A deadline which Congress imposed to ensure oversight and 
accountability should not now become a barrier to achieving bipartisan 
compromise and the best bill we can forge together.
  This is a vital debate. It should be. These are vital issues to all 
Americans. If a brief extension is needed to produce a better bill that 
would better serve all of our citizen then by all means, let us give 
ourselves that time. We want to give tools to prosecutors. I spent 8 
years of my life as a prosecutor. Some of the finest people on my staff 
are former prosecutors. We know the needs, especially in the electronic 
age. But we can do better, and America can do better if given the time.
  I thank Senator Sununu and all of our cosponsors in coming together 
in a bipartisan way to advance what is a commonsense solution.
  I ask unanimous consent to have printed in the Record some recent 
editorials on this matter.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Dec. 12, 2005]

                          A Better Patriot Act

       The conference report on the USA Patriot Act 
     reauthorization bill contains one major improvement over the 
     previous version and a few minor ones. The new bill contains 
     strong ``sunset'' provisions, under which the three most 
     controversial provisions would lapse again after four years, 
     not the seven of the earlier draft. This is no small win for 
     civil liberties. The sunset provisions in the original 
     Patriot Act have given Congress leverage over the past few 
     years to extract information from an administration not known 
     for openness concerning its use of the powers Congress gave 
     it. Insisting that the administration justify itself again 
     relatively soon ensures that Congress will be able to adjust 
     and refine the law as need be.
       Yet the conference report remains far from perfect. A 
     bipartisan group of senators is still objecting that it does 
     too little to protect civil liberties, and they are 
     threatening a filibuster, though it is not clear whether they 
     have the votes to sustain one. Some of the changes they are 
     seeking are reasonable and constructive. While the bill does 
     not contain the worst excesses of the House version, which 
     was larded with irrelevant and often terrible policy changes, 
     it still has a fair number of extraneous sections. Some are 
     silly, some ugly.
       What makes all this so frustrating is that a consensus bill 
     was surely possible. Indeed, it happened. The Senate version 
     of the bill passed on a unanimous vote, representing broad 
     agreement to grant government authorities the powers they 
     legitimately need while ensuring accountability in their 
     use--and it didn't contain a raft of irrelevant laws 
     unrelated to intelligence. The members balking at the current 
     bill would do a service if they forced a cleaner, more 
     accountable Patriot Act reauthorization.
       Debate over the conference report has focused on a narrow 
     array of civil liberties issues, all quite technical. The 
     rhetoric from civil libertarians makes the stakes here seem 
     greater than they really are. The differences between the 
     various proposals are not huge in practical terms. They are, 
     however, significant. The conference report contains weaker 
     controls on secret warrants for business records in national 
     security cases than the Senate bill did. It also does too 
     little to get a handle on the use of national security 
     letters--a form of administrative subpoena that the FBI uses 
     in national security cases to obtain records of certain 
     business transactions. These problems are not unsolvable, and 
     it's hard to believe the government is today getting much 
     data through uses of these powers that would be forbidden 
     were they written more accountably.
       What's more, sift through the bill and you'll find 
     provisions dealing with tobacco smuggling, establishing civil 
     immunity for folks who donate firefighting equipment to fire 
     departments, establishing new crimes--some punishable by 
     death--related to marine navigation, creating a new national 
     security division in the Justice Department, letting Secret 
     Service forensics experts help out in finding missing kids, 
     combating methamphetamine abuse and making life more 
     miserable for people challenging state convictions in federal 
     court. None of this, needless to say, has much to do with 
     protecting America from al Qaeda.
       The Patriot Act cannot be allowed to lapse at year's end, 
     and the current bill is much improved over earlier versions. 
     But it could still be a lot better. Precisely because the 
     administration cannot afford to let its powers expire, 
     further improvement should still be possible.
                                  ____


                  [From the Fresno Bee, Dec. 12, 2005]

                             Take the Time

       Fresno, CA.--Barring an unlikely successful filibuster, the 
     USA Patriot Act is likely to be renewed this week, mostly in 
     the form it was given in 2001. That's when Congress, in the 
     wake of the Sept. 11 terrorist attacks, rushed to give law 
     enforcement broader powers of investigation. That's still 
     justified up to a point. Law enforcement and intelligence 
     agencies should not be hamstrung, for instance, by a now-
     lapsed ban on sharing information.
       But it's risky to give blanket authority to government 
     agencies to bypass the courts, as this law partly does. It's 
     too tempting to look into every nook and cranny just to be 
     sure there isn't something amiss there.
       After lengthy debate behind closed doors, a House-Senate 
     conference committee agreed on compromise language that 
     congressional negotiators say will include more protection 
     for individuals. But if that's true, why do six senators--
     three Democrats and three Republicans--still oppose the 
     measure? (One of

[[Page 27938]]

     them--Democrat Russ Feingold of Wisconsin, the only senator 
     to vote against the original law--is threatening to 
     filibuster the revised version on the Senate floor.)
       The principal objection of these lawmakers, and those of us 
     who cherish individual liberty, is that the law sets too low 
     a threshold for justifying the need to examine private 
     records, including medical, financial and employment. And 
     they are not persuaded--nor are we--that requiring 
     authorities to show that their investigation has some 
     relevance to an anti-terror investigation is enough.
       These secret searches should be limited to specific 
     individuals and not be so broad as to allow ``fishing 
     expeditions.''
       Supporters of the revised law say action is necessary now 
     because 16 provisions of the original act are set to expire 
     Dec. 31. That's true. But there's a way to avoid undue haste 
     without tying the hands of law enforcement: Adopt a proposal 
     by Sen. Patrick Leahy, ranking Democrat on the Judiciary 
     Committee, to extend the law for three months, allowing time 
     for public debate on a law that could be used as much to harm 
     individuals as to catch terrorists.
       The compromise bill would make all but two of the 16 
     expiring provisions permanent. The other two are to be 
     extended for only four years, rather than the 10 years sought 
     by House Republicans. That's small comfort to those whose 
     privacy will be at risk in the meantime.
       House Judiciary Chairman James Sensenbrenner, a proponent 
     of quick action, claims it's needed to aid law enforcement in 
     detecting terrorists before they strike. But that sense of 
     urgency extends only so far. Former members of the 9/11 
     Commission have just scorched Congress and the White House 
     for failing to protect the country in many ways, including 
     the misallocation of resources to states or localities based 
     on political clout instead of risk.
       Americans would be no less safe if Congress were to 
     postpone a final vote and allow time for an open and honest 
     debate.
                                  ____


               [From the Kansas City Star, Dec. 12, 2005]

                 More Time Needed To Forge Better Bill

       Kansas City, MO.--A shaken Congress passed the Patriot Act 
     with almost no debate in the wake of the 2001 terrorist 
     attacks.
       Since then politicians across the spectrum have joined 
     librarians, city councils and other groups in raising alarms 
     about the law's intrusions on the privacy of American 
     citizens.
       With the act set to expire Dec. 31, lawmakers are 
     scrambling to reach a compromise that would allow most of the 
     provisions to be renewed permanently. Time is short, but it's 
     essential for Congress to give Americans a better balance 
     between national security and civil liberty.
       The House and Senate this week will consider a compromise 
     agreement reached by negotiators. The package makes a good-
     faith attempt to address some of the problems. But it 
     continues to give law enforcement agencies too much leeway to 
     search people's homes and examine their records without first 
     obtaining permission from judges.
       Provisions in the proposed law instruct judges to presume 
     federal agents' requests for records are valid, unless the 
     targeted people can prove the government acted in bad faith. 
     That places citizens at a serious disadvantage. Judicial 
     oversight doesn't mean much if the judges merely serve as 
     rubber stamps for law enforcement agents.
       The compromise also does little to curb the burgeoning use 
     of ``national security letters,'' which the FBI uses to make 
     sweeping requests for records from libraries, telephone 
     companies and Internet providers.
       Former Attorney General John Ashcroft used to sneer and 
     scoff at librarians who raised concerns about these requests, 
     implying they were rare. But The Washington Post has reported 
     that the FBI issues 30,000 such letters a year.
       Senators from both political parties are raising valid 
     concerns about the proposed new law. Democratic Sen. Patrick 
     Leahy proposed renewing the existing act for 90 days to give 
     lawmakers more time to write a better bill.
       Leahy's idea has merit. National security and individual 
     freedoms are too important to be compromised in haste.
                                  ____


                 [From the Morning Call, Dec. 12, 2005]

                          The War on Terrorism

       Allentown, PA.--An unusual coalition of conservatives and 
     liberals, along with the U.S. Chamber of Commerce and the 
     American Civil Liberties Union, merits attention. It's rare 
     for groups so far apart along the usual political spectrum to 
     agree on something. But they are united in their concern that 
     a compromise reached by Senate and House negotiators Thursday 
     won't sufficiently protect Americans' civil liberties. They 
     have reason for concern.
       Sen. Arlen Specter, the Republican chairman of the Senate 
     Judiciary Committee, said the compromise legislation is ``not 
     a perfect bill, but a good bill.'' House and Senate 
     negotiators came up with a plan to permanently extend 14 of 
     16 provisions set to expire at the end of the year. Of 
     particular note: When a law enforcement agent seeks access to 
     records, by order of a secret court established under the 
     Foreign Intelligence Surveillance Act, the agent must provide 
     a ``statement of fact'' proving it is relevant to an anti-
     terrorism investigation.
       But the coalition's concerns about fishing expeditions got 
     a boost last week when a bipartisan group of six senators 
     issued a statement critical of the compromise: Republican 
     Sens. Larry E. Craig of Idaho, John E. Sununu of New 
     Hampshire and Lisa Murkowski of Alaska, and Democratic 
     Senators Russell D. Feingold of Wisconsin, Richard J. Durbin 
     of Illinois and Ken Salazar of Colorado.
       The primary concern is that restrictions in the Patriot Act 
     haven't gone far enough since its passage in the wake of 9/11 
     to prevent government officials from going on so-called 
     ``fishing expeditions.'' The Washington Post reported in 
     October that the FBI used provisions of the act regarding 
     records-gathering to annually issue more than 30,000 
     specialized subpoenas, or national security letters, seeking 
     information from businesses.
       The letters don't require the government to demonstrate a 
     link between the information being sought and a suspected 
     terrorist. They only attest that the records sought are 
     relevant to a terror investigation. This provision of the 
     Patriot Act must be tightened before the anticipated House 
     and Senate votes this week.
       Or, if such an agreement cannot be reached, both chambers 
     should take the advice of Sen. Patrick J. Leahy of Vermont. 
     The ranking Democrat on the Judiciary Committee, who didn't 
     agree to the compromise, has proposed a three-month extension 
     of the Patriot Act, past its year-end expiration date.
       Sen. Feingold, the only senator to vote against the 
     original legislation in 2001, has threatened to filibuster 
     the bill extending Patriot Act provisions because it lacks 
     sufficient safeguards to protect constitutional freedoms. 
     Sixty votes would be required to block a vote on final Senate 
     passage.
       A three-month extension is preferable, however, to a bitter 
     partisan battle on the Senate floor.
                                  ____


                 [From the Times Union, Dec. 12, 2005]

                             True Patriots

       Albany, NY.--There's scant comfort in the compromise 
     reached by House-Senate conferees late last week on renewing 
     the USA Patriot Act. While it is welcome news that House 
     negotiators failed in their attempt to have the most 
     controversial provisions of this law extended for seven 
     years, rather than four, as the Senate insisted upon, and 
     which is now part of the compromise, there is no 
     justification to put basic civil liberties at risk for even 
     four minutes, let alone four years.
       Fortunately, a bipartisan group of six senators is vowing 
     to filibuster the accord, which is scheduled to be voted upon 
     this week. They are the true patriots. Their demands are 
     hardly burdensome. To the contrary, they want any final 
     legislation to include checks and balances against possible 
     abuse of power by government agencies acting under the 
     surveillance powers of the Patriot Act. That means some 
     monitoring of, say, FBI demands for reading, financial and 
     other personal information on American citizens. Former Rep. 
     Bob Barr of Georgia, who now heads a group called Patriots to 
     Restore Checks and Balances, sums up the issue this way:
       ``Lawmakers could have easily fixed these controversial 
     record search provisions by simply adopting the Senate-passed 
     amendment to Section 215, requiring the government to show a 
     connection between records sought and a suspected foreign 
     terrorist, and by applying a similar requirement to the NSL 
     (National Security Letters) powers. The decision of some 
     lawmakers to rush this flawed Patriot Act legislation to a 
     vote may allow them to leave a little earlier for the 
     holidays this year, but it will also leave the civil 
     liberties of their constituents in jeopardy for years to 
     come.''
       Supporters of the compromise argue that it does offer 
     safeguards against government abuses by requiring some 
     judicial overview. But a close reading of these oversight 
     requirements shows that investigators would have no trouble 
     meeting the loose standards for initiating searches.
       No one, least of all Mr. Barr, is suggesting that the 
     government shouldn't be able to track down suspected 
     terrorists. But the broad surveillance powers granted under 
     the Patriot Act open the way for possible abuses, such as 
     collecting information on law-abiding Americans without 
     notifying them or allowing them the opportunity to challenge 
     the searches.
       Sen. Patrick Leahy, D-Vt., who refused to sign the 
     compromise, suggests a reasonable solution: Rather than rush 
     the vote, extend the current act for three months and use the 
     extra time to forge a better bill. ``We owe it to the 
     American people to get this right,'' Sen. Leahy says. It's a 
     debt that should not be taken lightly.
                                  ____


                [From the Sacramento Bee, Dec. 11, 2005]

             Patriot Act Renewal: Take Time to Do It Right

       Sacramento, CA.--Barring an unlikely successful filibuster, 
     the USA Patriot Act is

[[Page 27939]]

     likely to be renewed this week, mostly in the form it was 
     given in 2001. That's when Congress, in the wake of the 9/11 
     terrorist attacks, rushed to give law enforcement broader 
     powers of investigation. That's still justified up to a 
     point. Law enforcement and intelligence agencies should not 
     be hamstrung, for instance, by a now-lapsed ban on sharing 
     information.
       But it's always risky to give blanket authority to 
     government agencies to bypass the courts, as this law partly 
     does. It's too tempting to look into every nook and cranny 
     just to be sure there isn't something amiss there.
       After lengthy debate behind closed doors, a House-Senate 
     conference committee agreed on compromise language that 
     congressional negotiators say will include more protection 
     for individuals. But if that's true, why do six senators--
     three Democrats and three Republicans--still oppose the 
     measure? (One of them--Democrat Russ Feingold of Wisconsin, 
     the only senator to vote against the original law--is 
     threatening to filibuster the revised version on the Senate 
     floor.)
       The principal objection of these lawmakers, and of civil 
     libertarians, is that the law sets too low a threshold for 
     justifying the need to examine private records, including 
     medical, financial and employment. And they are not 
     persuaded--nor are we--that requiring authorities to show 
     that their investigation has some relevance to an anti-terror 
     investigation is enough. Instead, these secret searches 
     should be limited to specific individuals and not be so broad 
     as to allow ``fishing expeditions.'' That has happened before 
     and almost surely will again.
       Supporters of the revised law, mainly House Republicans and 
     the White House, say action is necessary now because 16 
     provisions of the original act are set to expire Dec. 31. 
     That's true. But there's a simple way to avoid undue haste 
     without tying the hands of law enforcement: Adopt a proposal 
     by Sen. Patrick Leahy, ranking Democrat on the Judiciary 
     Committee, to extend the law for three months, allowing time 
     for public debate on a law that could be used as much to harm 
     individuals as to catch terrorists.
       The compromise bill would make all but two of the 16 
     expiring provisions permanent. The other two are to be 
     extended for only four years, rather than the 10 years sought 
     by House Republicans. That's small comfort to those whose 
     privacy will be at risk in the meantime.
       House Judiciary Committee Chairman James Sensenbrenner, a 
     proponent of quick action, claims that's needed to aid law 
     enforcement agencies ``in the detection, disruption and 
     dismantling of terrorist cells before they strike.'' Yet such 
     a sense of urgency seems to extend only so far on Capitol 
     Hill. Former members of the 9/11 Commission have just 
     scorched both Congress and the White House for failing to 
     protect the country in a variety of ways, including the 
     misallocation of resources to states or localities based less 
     on risk than on political clout.
       Americans would be no less safe if Congress were to 
     postpone a final vote and allow time for an open and honest 
     debate.
                                  ____


             [From the Brattleboro Reformer, Dec. 10, 2005]

                          Repealing Patriotism

       Brattleboro, VT.--At some future date, when sanity perhaps 
     returns to our nation, historians will look back at the 
     Patriot Act and put it in the same category as other assaults 
     on our civil liberties, such as John Adams' Alien and 
     Sedition Act, Abraham Lincoln's suspension of habeas corpus 
     during the Civil War or Franklin Roosevelt's internment of 
     Japanese-Americans during World War II.
       On Oct. 26, 2001, President Bush signed the Uniting and 
     Strengthening America by Providing Appropriate Tools Required 
     to Intercept and Obstruct Terrorism (USA PATRIOT) Act. The 
     House of Representatives passed this grab bag of police-state 
     tactics by a 357-66 vote with almost no debate.
       Wisconsin Democrat Russ Feingold was the only senator to 
     vote no. At the time, Feingold called the Patriot Act a 
     ``truly breathtaking expansion of police power.''
       A fearful Congress was stampeded into approving, almost 
     sight unseen, one of the broadest assaults on civil liberties 
     in our nation's history. Despite assorted court challenges, 
     the expansion of police power continues--an expansion which 
     has done little to capture the masterminds of the Sept. 11 
     attacks or to prevent future attacks. But this expansion has 
     done much to undermine our hard-won Constitutional rights.
       What has happened to our legal rights since then? Here's a 
     refresher:
       You've lost your freedom of association. The federal 
     government can now monitor the doings of religious and 
     political organizations, even if there's no reason to suspect 
     that illegal activity is going on.
       You've lost your freedom from unreasonable searches. The 
     federal government may search and seize your papers and 
     effects without probable cause and without a court warrant. 
     It can also question librarians and booksellers about your 
     reading habits, and threaten them with jail if they reveal to 
     anyone that you're being investigated.
       You've lost your right to a speedy and public trial. The 
     federal government can now jail you indefinitely without you 
     being charged with a crime and can do so without holding a 
     trial and without allowing you to confront your accusers. 
     This is what you can expect if you are deemed to be a 
     ``terrorist'' or are deemed to be ``assisting a terrorist 
     group.'' The definition of ``terrorist'' and ``terrorist 
     group'' is purely up to the government, of course.
       You've lost your right to legal representation. 
     Conversations between attorneys and clients can now be 
     monitored in federal prisons. That is, if you're fortunate 
     enough to have an attorney. The federal government now has 
     the right to deny you legal representation too.
       In short, the federal government can arrest virtually 
     anyone it deems to be a danger to national security, even 
     without a formal criminal charge, and jail them indefinitely. 
     It can deny you a lawyer or even a trial, public or secret. 
     And all of this can happen without your family or friends and 
     relatives ever knowing what happened.
       This is what the so-called war on terrorism has done to our 
     Constitutional rights. This is why the current debate in 
     Congress over extending the provisions of the Patriot Act is 
     important.
       To keep the Patriot Act as it is means more secrecy, more 
     disinformation and more repression. It is quite frankly, un-
     American. It is behavior straight out of a totalitarian 
     state; tactics not worthy of the world's greatest democracy.
       The average American thinks he or she is safe. But history 
     has shown us that when a regime has absolute power, it's only 
     a matter of time before anyone and everyone is subject to 
     official intimidation and attack.
       Security and ``fighting terrorism'' are not suitable 
     pretexts for destroying more than two centuries of American 
     jurisprudence. The rule of law as enshrined in the 
     Constitution is supposed to still mean something in America.
       It's time to demand that Congress and the Bush 
     administration respect our civil liberties. There shouldn't 
     be a discussion to modify or extend the Patriot Act.
       Instead, Congress should be working to repeal it.

  Mr. LEAHY. Mr. President, I thank the distinguished Senator from 
Tennessee for his willingness to allow me to go forward at this time. I 
know he has been sitting here patiently. I thank him, and I yield the 
remainder of time.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Tennessee is recognized for 10 minutes.
  Mr. ALEXANDER. Thank you, Mr. President.

                          ____________________