[Congressional Record (Bound Edition), Volume 151 (2005), Part 21]
[Senate]
[Pages 28213-28228]
[From the U.S. Government Publishing Office, www.gpo.gov]




   USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005--
                           CONFERENCE REPORT


                             Cloture Motion

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of the conference report to accompany H.R. 
3199, the PATRIOT Act, and I send a cloture motion to the desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The cloture motion having been presented under rule XXII, the Chair 
directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the Conference 
     Report to accompany H.R. 3199: The U.S. PATRIOT Terrorism 
     Prevention Reauthorization Act of 2005:
         Chuck Hagel, Jon Kyl, John McCain, Richard Burr, Conrad 
           Burns, Pat Roberts, John Ensign, James Talent, C.S. 
           Bond, Johnny Isakson, Wayne Allard, Norm Coleman, Kay 
           Bailey Hutchison, Mel Martinez, John Thune, Jim DeMint, 
           Jeff Sessions, Bill Frist, Arlen Specter.

  Mr. FRIST. Mr. President, we will be very brief. I know we have two 
of our colleagues on the floor prepared to speak.
  What we have just done is turn to the conference report on the 
PATRIOT Act, a vitally important piece of legislation, that in 
bipartisan way our colleagues have addressed, in a bicameral way, and 
it is now our intention to address the PATRIOT Act, discuss it over the 
course of, I am sure, later this evening as well as tomorrow.
  Because we were unable to come to a unanimous consent agreement to 
address this bill in a limited amount of time, in an appropriate amount 
of time, and then to vote up or down on the bill, I filed a cloture 
motion, and that cloture vote will actually be Friday morning. I will 
have more to say about that.
  Let me briefly turn to my distinguished colleague, who is chairman of 
the Judiciary Committee, who has put together, again in a bipartisan 
way with a lot of negotiation and compromise over the long period of 
time, a bill that, as we all know, has passed the House of 
Representatives earlier today with I believe 44 Democrats voting for 
the PATRIOT Act in the House of Representatives, a bill that we now 
will be addressing on the floor of the Senate.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I shall be brief. I know two Senators are 
waiting to speak.
  I congratulate the House of Representatives for approving the 
conference report by a significant margin.
  I thank the majority leader for moving ahead procedurally with filing 
of the cloture motion. There have been a number of public statements 
made by Senators about an intention to filibuster. We are obviously at 
the conclusion of our work and we want to proceed. I am advised by the 
distinguished majority leader that this conference report will be on 
the floor tomorrow.
  I urge my colleagues to come to the Senate to debate the issue. It is 
a complicated bill. I addressed it at some length the day before 
yesterday with a floor statement, moving into the critical areas. 
Yesterday, Senator Feingold and I had an opportunity to discuss the 
bill for almost an hour. It is valuable for our colleagues to know the 
details as to what is in the bill. That can be best accomplished by an 
interchange of ideas, those who have objections stating them, and 
hearing the responses so that we may fulfill our responsibility as the 
world's greatest deliberative body. I look forward to that exchange and 
debate.
  I believe it is an acceptable bill, a good bill, not a perfect bill. 
I am prepared to go into detail. I have talked to many of my colleagues 
one on one, individually, and I have found, understandably, because of 
the complexity of the bill, that many of its provisions are not fully 
understood as to what they mean and what the import is and why we have 
come to this.
  Ideally, I would like to have seen the Senate bill go through 
unanimously, passed by the Judiciary Committee 18 to 0, and then on the 
unanimous consent calendar here, which is, I think, unprecedented for a 
bill of this magnitude. But we have a bicameral system, and we 
conferred at length with our colleagues in the House of Representatives 
and are presenting the conference bill, which I submit is a good bill 
that I am prepared to advocate tomorrow.
  I urge those who want to speak to come to the Senate tomorrow morning 
when we take up the bill and have a constructive debate so our 
colleagues may be informed about the contents and vote on the cloture 
motion in a timely way and hopefully move forward to consideration on 
an up-and-down vote.
  I thank my colleagues from Louisiana and Iowa for yielding this time.
  Mr. FRIST. Mr. President, let me very briefly close in stating my 
strong support for the legislation, the substance of the legislation, 
but also underscore the importance of this Senate acting on this 
legislation. I encourage our colleagues who have talked about 
filibuster to do exactly what our distinguished chairman has talked 
about, and that is look at the substance of the bill. A lot of changes 
and modifications have been a product of compromise and negotiation and 
have been put into the bill. It is very strong in terms of issues such 
as terrorist financing and protection of our ports and addressing 
issues surrounding mass transit and privacy and personal liberties.
  This bill does present us with a stark and clear choice: Should we 
take a step forward, which we have an opportunity to do in the next 
several days, or take a step backwards in that goal to make America 
safer? It does expire on December 31. The PATRIOT Act expires on 
December 31, but the terrorist threat does not.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Ms. LANDRIEU. Mr. President, I begin as my leader is in the Senate to 
say the bill they most certainly have presented for our consideration 
is one that needs attention and needs deliberation. The PATRIOT Act is 
a very important part of the security of our Nation. We can debate the 
inside and pieces of it, but I strongly suggest to the leadership that 
protecting America is more than just the chapters and statutes related 
to the PATRIOT Act.
  Protecting America is about protecting patriots in the gulf coast, in 
Louisiana, in Mississippi--not just citizens who are patriots, taxpayer 
citizens, hard-working citizens who have come to believe the notion 
that in America they are safe, or should be safe, and if disaster does 
strike, the government, with the private sector and with their own 
effort, will be there to help.
  What about the patriots on the gulf coast who are veterans 
themselves, the 400,000 veterans in Louisiana, the 250,000-plus 
veterans in Mississippi--just for two States that were affected--men 
and women who have put on the uniform, served their time, true 
patriots. What are we doing to secure their homes, their schools, their 
churches?
  I suggest to the leadership that while the PATRIOT Act itself has 
many pieces of what helps make America secure, it is one piece but not 
the only piece. We should most certainly not be comfortable leaving 
here without securing the homes and businesses and dreams of average 
Americans, patriots, on the gulf coast.
  As I speak for just a few minutes this afternoon, it has been over 
100 days since two of the deadliest storms hit the coast of America: 
Katrina and Rita, Katrina on the southeastern part of Louisiana, on the 
Mississippi section as well, and Rita, just a little over a

[[Page 28214]]

week later hitting the southwest part of Louisiana and Texas counties 
as well.
  As the days and weeks have unfolded and as there have been 
investigations and hearings and committees that have looked into what 
happened, I suggest it was not just a natural disaster that led us to 
this point but a manmade disaster.
  The Times-Picayune, the major newspaper in New Orleans, and other 
papers in the region, have written extensively on this subject. I ask 
unanimous consent that this article, ``Evidence Points to a Man-Made 
Disaster,'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Times-Picayune, Dec. 8, 2005]

                  Evidence Points to Man-Made Disaster

         (By John McQuaid, Bob Marshall and Mark Schleifstein)

       As investigators and residents have picked through the 
     battered New Orleans levee system's breaches, churned-up soil 
     and bent sheet pile in the 100 days since Hurricane Katrina 
     struck, they have uncovered mounting evidence that human 
     error played a major role in the flood that devastated the 
     city.
       Floodwall breaches linked to design flaws inundated parts 
     of the city that otherwise would have stayed dry, turning 
     neighborhoods into death traps and causing massive damage. In 
     other areas, poorly engineered gaps and erosion of weak 
     construction materials accelerated and deepened flooding 
     already under way, hampering rescue efforts in the wake of 
     the storm.
       These problems turned an already deadly disaster into a 
     wider man-made catastrophe and have made rebuilding and 
     resettlement into far tougher and more expensive challenges.
       That's the picture that emerges from investigations of the 
     levee system by teams sponsored by the state government, the 
     American Society of Civil Engineers and the National Science 
     Foundation, as well as from dozens of interviews with local 
     residents, officials and engineers.
       Experts say the New Orleans flood of 2005 should join the 
     space shuttle explosions and the sinking of the Titanic on 
     history's list of ill-fated disasters attributable to human 
     mistakes.
       The evidence points to critical failures in design and 
     construction, as well as a lack of project oversight and 
     responsibility that allowed small problems to metastasize 
     into fatal errors. Twisted lines of authority led to cursory 
     inspections, communications snafus and even confusion about 
     such basic information as wall dimensions.
       Outside engineers, political leaders and many New Orleans 
     residents now question the judgments and even the once-
     unassailable competency of the Army Corps of Engineers, which 
     had final authority over the system. The corps and some of 
     the same firms involved in the original design and 
     construction of the levees are spearheading the effort to 
     repair the system and already are planning to build stronger 
     protections.
       Sen. David Vitter, R-La., who sits on two Senate committees 
     investigating the levee failures, says the U.S. system for 
     building flood defenses is broken. The corps, he said, should 
     be overseen by outsiders who can ensure it will do the job 
     right.
       ``We need a new model, a new structure, a new process to 
     get this done which has to include outside, independent 
     review of the corps by outside, independent engineering 
     experts,'' he said.


                           ``The best minds''

       The levee flaws also raise troubling questions about the 
     integrity of flood defenses elsewhere.
       ``Everybody who has a levee out the back door now has to 
     look out and wonder, is this going to fail? Was it designed 
     right?'' said Steve Ellis, vice president of Taxpayers for 
     Common Sense, a Washington fiscal watchdog group critical of 
     the corps' priorities.
       Corps spokesman David Hewitt said the agency has several 
     experts and engineers from outside agencies, private firms 
     and academia to aid its investigation. ``We are determined to 
     find out exactly what happened both in the technical 
     engineering and the planning and execution process so that we 
     can prevent another occurrence,'' Hewitt said. ``We are 
     engaging the best minds and professional expertise in this 
     important effort.''
       Engineers say most structures that fail do so not because 
     they're hit by overwhelming forces, but because of flaws that 
     creep in unnoticed during design, construction and upkeep. A 
     paper published this month by Robert Bea, an engineering 
     professor at the University of California at Berkeley who is 
     studying the levee failures, concluded that 80 percent of 600 
     structural engineering failures he studied in the past 17 
     years were caused by ``human, organizational and knowledge 
     uncertainties.''
       Bea said everything he has seen about the New Orleans levee 
     system so far tells him it belongs in that category.


                       Not as good as advertised

       The levee system's design dates to the 1950s, when 
     understanding of hurricane risks and flood dynamics was 
     primitive compared to today. The system was never built to 
     take a hit from the most powerful hurricanes, storms in 
     Categories 4 or 5 on the Saffir-Simpson scale. The levees 
     were designed by congressional mandate to fend off floodwater 
     heights--up to about 11 or 13 feet, depending on location--
     that Category 1 or 2, and some Category 3 storms would kick 
     up.
       But the investigations show that the levees did not live up 
     even to that billing. When Katrina's storm surge rolled in 
     from the Gulf of Mexico before dawn Aug. 29, the huge dome of 
     water followed a path up the Mississippi River and then along 
     the Mississippi River-Gulf Outlet into Lake Borgne.
       In a matter of hours, the sheet of water--reaching 25 feet 
     high at some locations--moved relentlessly north and west, 
     pouring over the tops of and eroding large stretches of 
     levees surrounding Chalmette, clearly exceeding their design 
     capacity.
       When the surge reached New Orleans' southern edge along the 
     Gulf Intracoastal Waterway, it caused as much as five miles 
     of the 17.5-foot tall levee there to disappear, creating a 
     back door for water into eastern New Orleans.
       Water pushed west through the waterway into the Industrial 
     Canal, where it met water already rising from storm surge 
     that had entered Lake Pontchartrain. The water topped levees 
     on both sides of the canal, causing walls to fail on the east 
     side, flooding the Lower 9th Ward, and leaking through 
     smaller levee breaks and a pump station on the west side, 
     flooding the rest of the 9th Ward.


                           Breaches by design

       Later that morning, as surge rose in Lake Pontchartrain, 
     floodwalls along the 17th Street and London Avenue canals 
     breached, even though the water was well below their tops. 
     Investigators say those breaches shouldn't have happened. 
     Observational data and computer modeling indicate that storm 
     surge entering the canals from the lake reached heights 
     ranging from 9 to 11 feet in the 17th Street Canal and 11 to 
     12 feet in the London Avenue Canal. The walls were 13.5 feet 
     high or higher along much of the two canals and were designed 
     to withstand water rising to 11.5 feet.
       Investigators say the walls broke when floodwater, pushing 
     through the soft, porous earth under the steel sheet pile 
     foundations, started moving the soil. In the 17th Street 
     Canal, one breach opened on the east side, and in the London 
     Avenue, two breaches occurred. Water poured into the 
     Lakefront area and moved south, inundating much of central 
     New Orleans over the course of the day and night.
       Engineers say some systemic design problem--not merely a 
     localized fluke--caused the breaches because walls gave way 
     in two canals and some walls appear to have been close to 
     breaching at other points.
       While it's easy to second-guess after a disaster, outside 
     engineers say the depth of the sheet pile foundation appears 
     too shallow. A survey by Team Louisiana, the state-sponsored 
     forensics group, found--and the corps confirmed last week--
     that the sheet pile depth was about 10 feet below sea level 
     in the breached areas at both canals, much shallower than the 
     18.5 foot below-sea-level depth of the canals and 7 feet 
     shorter than the corps thought.
       Modjeski & Masters, the firm that designed the 17th Street 
     canal wall, said last week it had initially recommended a 35-
     foot depth for the piling on the 17th Street Canal, then 
     shortened it at the corps' behest, but the firm offered no 
     documentation to back the claim.


                            Soil and safety

       It's still unclear exactly what went wrong, though 
     engineers suggest the soil's resiliency was overestimated.
       New Orleans soil is swampy and mushy, with alternating 
     layers of peat, clay and sand. Along the length of a 
     floodwall it varies wildly in consistency and strength. Along 
     both canals, a layer of peat--the weakest and spongiest of 
     soils--lies directly under breaches a few feet below the base 
     of the sheet pile. Along the London Avenue Canal, coarse sand 
     underlay the peat and now lies throughout nearby residential 
     yards and homes, another layer of weakness, the engineers 
     said.
       ``Those are the kinds of subsurface conditions that lend 
     themselves to having weak pockets or stronger pockets, and 
     Mother Nature will always find the weak pockets,'' said 
     Joseph Wartman, a Drexel University geotechnical engineer 
     studying the levee failures. ``What makes levee design and 
     engineering so challenging is you can have a system that's 
     many, many miles long and you only need the weakest 150 feet 
     to rupture for the whole system to fail.''
       Another factor in the breaches, one with national 
     implications, is the low safety factor used in constructing 
     the levee banks and floodwalls. A safety factor is a kind of 
     cushion that engineers include in a structure's design to 
     ensure it can withstand all the punishment it's designed to 
     take, plus a little more.
       Corps standards for levees and floodwalls date back 
     decades, officials say, and were intended to protect sparsely 
     populated areas, not cities and billions of dollars of 
     infrastructure. The safety factor of 1.3 used in the

[[Page 28215]]

     designs is significantly lower than those used in structures 
     with similarly large-scale tasks of protecting lives and 
     property.
       With data from soil borings spaced at more than 300-foot 
     intervals along the canals, engineers could develop only a 
     fragmentary picture of what is underground. They were 
     supposed to account for that uncertainty. That is typically 
     done by raising the safety factor or by making conservative 
     estimates of soil conditions.
       Team Louisiana investigators said last week that based on 
     new calculations, they think engineers working for 
     contractors Eustis Engineering and Modjeski & Masters 
     miscalculated the depths of the 17th Street Canal walls. The 
     team has not yet released detailed findings. University of 
     California engineers say the designers might not have 
     accounted for storm surge's effects on the soil.
       According to project and court documents, those designs 
     were reviewed and approved by corps engineers.
       It's not clear yet whether additional factors such as cost-
     cutting or specific on-site construction problems contributed 
     to the levee breaches, but the failures can also be linked to 
     a chain of political and managerial decisions.
       The corps originally proposed building floodgates at the 
     mouth of each canal--and at the mouth of the Orleans Canal 
     that runs along the west side of City Park--to block surge. 
     But local officials, including those at the Orleans Levee 
     Board and New Orleans Sewerage & Water Board, insisted on 
     building floodwalls because floodgates would have made it 
     difficult to pump water out during a storm. Engineers say the 
     obvious, though expensive, solution is to build pumping 
     stations at the lakefront rather than miles inland.
       A 1980s-era Sewerage & Water Board dredging project in the 
     17th Street Canal next to the breached area left the Orleans 
     Parish canal-side levee wall much narrower than that on the 
     Jefferson Parish side. Investigators say that change probably 
     contributed to the failure of the wall.
       Pittman Construction, the contractor that built the 17th 
     Street Canal wall, ran into trouble driving sheet piles in 
     1993. When the concrete tops to the walls were poured, 
     documents show, the walls tipped slightly. Though the corps 
     attributed this to Pittman's methods, not the site 
     conditions, and a judge agreed, some engineers say the 
     difficulty they encountered was an early warning sign.


                           What lies beneath

       Meanwhile, state and local officials have admitted they 
     generally skipped the canal floodwalls in annual inspections 
     of levees--and the levees they did inspect were examined in a 
     cursory fashion.
       Though necessary, visual inspections are of limited use. 
     Absent an obvious problem like water bubbling to the surface, 
     most levee problems go on out of sight, meaning a system's 
     problems can go undetected for years without a more 
     aggressive inspection program that includes probing beneath 
     the surface with soil sampling, sonar or other methods.
       ``It looks perfect from the outside. It looks in good 
     shape. Even if you had a 10-man crew walking along there 
     every day, you would not have seen the problem,'' said Jurjen 
     Battjes, a retired professor of engineering from the 
     Technical University of Delft, Netherlands, who is on an 
     American Society of Civil Engineers panel reviewing the 
     corps' investigation.
       To the east, assessing the levee system's performance is a 
     more complicated task. Water flowed over levees and 
     floodwalls along the Industrial Canal, Gulf Intracoastal 
     Waterway and Mississippi River-Gulf Outlet. In many spots, 
     the water scoured out earth along the dry side and the walls 
     gave way.
       In general, engineers say that once a levee is topped, its 
     structural integrity cannot be guaranteed. But the speed with 
     which many of the walls breached or eroded and the large 
     scope of the damage have alarmed investigators. The outer 
     levee along the Mississippi River-Gulf Outlet protecting St. 
     Bernard Parish and the levee along the north side of the Gulf 
     Intracoastal Waterway protecting part of the Lower 9th Ward 
     were all but washed away by the storm, for example.
       Engineers say that if a wall is sturdy enough to remain in 
     place while water flows over it, flooding will be minimized, 
     lasting only until the surge drops. When a breach opens, 
     adjacent neighborhoods basically become part of nearby 
     waterways and the scale of the flooding is many times 
     greater.


                           The funnel effect

       One source of the scouring and multiple breaches is 
     actually a corps policy, dictated by Congress. Corps 
     officials say they are not allowed to put rip-rap, concrete 
     or other forms of scour protection on the dry side of levees. 
     Doing that anticipates flood level higher than the walls are 
     designed for, which is beyond the corps' mandate for Category 
     3 protection.
       A report published last month by the American Society of 
     Civil Engineers and National Science Foundation teams 
     identified other unanticipated weaknesses in the levee 
     system. Builders used weak, sandy soils in the now-
     obliterated St. Bernard Parish hurricane levee, and that 
     likely contributed to its rapid destruction. In areas where 
     two different levee sections came together, investigators 
     found many awkwardly engineered transitions that allowed 
     water through.
       A much larger problem lies in the overall design of the 
     levees along the city's southeastern flank. Unlike areas 
     fronting Lake Pontchartrain, southeastern areas are more or 
     less directly exposed to waters from the Gulf, and hurricane 
     floods are more likely to strike there and rise higher when 
     they do.
       The levee system forms a V-shape where the MR-GO and 
     Intracoastal Waterway meet. That acts as a giant funnel, 
     driving water heights even higher and channeling storm surge 
     directly into canals leading into the city.
       Computer modelers have complained for years that the corps 
     had underestimated the risk to those areas, and former corps 
     modeler Lee Butler estimated the actual risk was double the 
     corps estimate in a 2002 study done for The Times-Picayune. 
     The corps only recently announced it will stop dredging the 
     MR-GO.


                          Waiting for answers

       It will take months, and possibly years, to arrive at a 
     detailed assessment of what went wrong and assess 
     responsibility, engineers familiar with the situation say. 
     Investigators must determine not only why individual wall 
     sections failed, but they also must trace the roots of 
     decisions, untangling overlapping responsibilities of the 
     corps, private contractors and local agencies. A federal 
     interagency team investigating the system won't make its 
     report until June. A National Research Council team is only 
     now being formed.
       So far, the scope of the disaster, and the human element 
     central to it, have only begun to sink in among political 
     leaders and agency heads, including the corps, which is at 
     the center of all the inquiries. The corps has declined to 
     comment on the causes of the levee failures, pending the 
     outcome of its own studies.
       People familiar with the agency say the disaster means 
     things might never be the same.
       ``In the old days the corps used to get criticized for 
     being way too conservative in their designs,'' said Don 
     Sweeney, a corps economist for 22 years who left after 
     exposing irregularities in the agency's economic impact 
     statements and now teaches at the University of Missouri. 
     ``They would design a structure with a safety factor of 4 or 
     5. They did have that reputation of building things with 
     integrity that were built to last. And if they said it was 
     built to do something, it would do it.''

  Ms. LANDRIEU. I also ask unanimous consent to have printed in the 
Record ``Corps' Own Study Backs Critics of Levee Engineering.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Corps' Own Study Backs Critics of Levee Engineering

                [From the Times-Pacayune, Dec. 10, 2005]

                         (By Mark Schleifstein)

       An internal review by the Army Corps of Engineers supports 
     most of the criticisms leveled against the New Orleans area 
     levee system by an independent team of engineers, including 
     questions about soil strength, levee maintenance and whether 
     the system was built as designed.
       In a Dec. 5 interim report released Friday, the Interagency 
     Performance Evaluation Task Force said its conclusions 
     already have been passed on to engineers who are working to 
     restore the levee system to its authorized protection level 
     before it was overwhelmed by Hurricane Katrina, flooding more 
     than 70 percent of the city.
       ``The IPET team vigorously agrees that everything possible 
     should be done to reconstitute an effective and resilient 
     flood protection system for the New Orleans area,'' the 
     report said.
       While the level of protection is still limited by past 
     congressional authorizations to the equivalent of a fast-
     moving Category 3 hurricane, the report said the task force 
     will evaluate the risk and reliability of that system.
       ``This will provide a clearer perspective of the overall 
     performance capacity of the system for use by individuals and 
     governments in their decision making,'' the report said.
       The task force concurred with the independent engineers 
     from the American Society of Civil Engineers and the National 
     Science Foundation that the failure of levee walls at the 
     17th Street and London Avenue canals were likely caused by 
     failures in the foundation soils beneath them. The engineers 
     also have noted that sheet piling beneath the walls was too 
     short to properly support the walls.
       The independent engineers said soft peaty soils under the 
     17th Street levee and a combination of soft peat and sand 
     beneath the London Avenue levees allowed water from the 
     canals to push the walls and earth beneath them out of the 
     breach areas, allowing water to flood into much of the city.
       ``Extensive observations by a number of teams found no 
     signs of major overtopping of these systems at the breach 
     sites,'' the report said, pointing to a structural failure of 
     the floodwalls at those sites.

[[Page 28216]]




                           Analyzing failures

       The corps task force is studying a variety of other factors 
     that also may be involved in the failures at those two 
     canals:
       The potential for differences between how the levee and 
     floodwall structures were built and the plans and 
     specifications that were supposed have guided their 
     construction.
       Properties of soil layers beneath the levees to a depth of 
     60 feet below sea level.
       The kinds of soil materials, including whether they were 
     natural deposits or were compacted properly to remove 
     moisture and be more dense.
       Whether the soil layers included tree stumps or other 
     organic materials.
       The way the soil may have coped with the forces imposed by 
     Katrina's wind and water.
       The effect of trees, swimming pools and other objects in 
     nearby back yards that may have affected the levee strength.
       How close the levee failures were to bridges, and whether 
     the connection between them was adequate.
       Whether operations and maintenance practices by the corps 
     and individual levee boards differed from the corps' 
     Operations and Maintenance Manual.
       The task force said it had found evidence that scour, 
     probably from water going over the top of the levee, occurred 
     along the London Avenue Canal at the southeast corner of its 
     intersection with the Robert E. Lee bridge, near a part of 
     the wall that looks deformed. That levee section is directly 
     across from a breach.
       Damage near a pump station at the southern end of the 
     Orleans Canal also appears to indicate water topped the levee 
     wall there, the report said.
       Along the levee walls of the Industrial Canal and along 
     earthen levees on the Gulf Intracoastal Waterway and 
     Mississippi River-Gulf Outlet, Katrina's storm surge went 
     over the top, causing scouring or in some cases simply 
     washing away large parts of the levees, the report said.
       At the Industrial Canal, the water pouring over the wall 
     scoured the levee on what was supposed to be the protected 
     side of the I-shaped levee wall.
       ``The erosion appeared to be so severe that the sheet piles 
     may have lost all of their foundation support, resulting in 
     failure,'' the corps report said.


                       Protecting back of levees

       The task force also agreed with the independent engineers 
     that those designing repairs to the levee systems should 
     consider ways of protecting the back sides of levees from the 
     effects of water scour in the event another major hurricane's 
     storm surge tops the levees.
       Officials with the corps' Task Force Guardian, which is in 
     charge of the rebuilding effort, already have said they plan 
     to use more protective inverted-T levee walls in the 17th 
     Street and London Avenue canals where breaches occurred. 
     Water topping such a wall would splash down on a concrete 
     strip before running off.
       The investigative task force also said the use of erosion 
     protection, including riprap, concrete mats or slabs, or 
     paving, should be considered in areas where erosion by waves 
     and surge are possible. The report said additional study is 
     under way into where structures in the levee system are most 
     likely to sustain unusually large surge and wave conditions.
       And the report recommended using stronger clay soils in 
     building levees ``to improve their survivability chances.''
       The investigative task force also recommended that in 
     rebuilding, more effort should be put into assuring that 
     connections between different types of protective systems--
     such as walls and earthen levees--be better designed.
       ``A common problem observed throughout the flood protection 
     system was the scour and washout found at the transition 
     between structural features and earthen levees,'' the report 
     said. Similar problems occurred where ``penetrations,'' such 
     as streets or railroad tracks, went through levee structures, 
     the report said.
       The task force also agreed with the independent engineers' 
     conclusion that a lack of access to the land side of levees 
     and levee walls, such as found along the canals in New 
     Orleans, led to major problems for emergency personnel 
     attempting to make repairs.
       In the aftermath of Katrina, corps contractors had to build 
     a road behind homes along Bellaire Drive to reach the 17th 
     Street canal breach.
       Corps officials told the Orleans Levee Board this week that 
     they expect to expand the canal levee walls' rights of way by 
     15 feet to build an access road.


                          Looking for weakness

       The task force also recommended that corps officials 
     undertake an in-depth investigation of the area's levees to 
     determine where other weaknesses might lie.
       ``Detailed inspection of the entire hurricane protection 
     system using appropriate remote sensing, surveying, 
     inspection and investigation techniques and equipment 
     implemented and analyzed by properly trained and experienced 
     professionals is recommended to identify those structures 
     that have been weakened but have little visual evidence of 
     degradation,'' the report said.
       The corps task force held off on agreeing with a 
     recommendation from the independent engineers to keep sheet 
     piles in place along bridges on the northern end of the 17th 
     Street and London Avenue canals so they could be easily 
     plugged in advance of a storm during the next hurricane 
     season.
       That decision will require further study, the report said.
       The report said it was outside the task force's authority 
     to concur with the independent engineers' recommendation that 
     the corps should retain an independent board of consultants 
     to review the adequacy of interim and permanent repairs.
       The report points out that Katrina's sustained winds were 
     at 147 mph when it crossed the Louisiana coast early Aug. 29.
       ``The sustained wind speeds for the standard project 
     hurricanes used to design many of the flood protection 
     structures in and around New Orleans were in the neighborhood 
     of 100 miles per hour,'' the report said. ``While wind speed 
     alone is not a complete measure of the surge and wave 
     environments experienced by specific structures, it is a 
     clear indicator of the level of the forces to which the 
     system was subjected.''
       According to National Weather Service records, the highest 
     winds recorded in the immediate New Orleans area were gusts 
     of 105 mph at Lakefront Airport and Belle Chasse Naval Air 
     Station. But much higher wind speeds were believed to have 
     occurred in eastern New Orleans and St. Bernard and 
     Plaquemines parishes, which were directly in the path of 
     Katrina's eye.
       The report said the task force is conducting an analysis of 
     Katrina's surge and wave effects in Lake Borgne and the rest 
     of the New Orleans area so the data can be used in 
     determining the forces acting on levees and floodwalls 
     throughout the area.

  Ms. LANDRIEU. The point is, this was not just a natural disaster, it 
was a manmade disaster. One of our columnists captured it correctly. 
You could almost argue, based on the evidence that is in, independent 
evidence, that it was a Federal Government-sponsored disaster.
  Let me repeat, these are strong words: A Federal Government-sponsored 
disaster because it was the Corps of Engineers, the failing of a 
sophisticated and supposedly a strong levee system that failed, that 
put a major American city underwater 10 to 15 feet for 2 weeks and 
flooded a region, with multiple levee breaks in an urban area.
  It has never happened in the recent hitory of America. It has not 
happened since the great floods of 1927 when the Mississippi system was 
designed. It is written and documented beautifully in John Barry's 
book, ``Rising Tide.''
  We have a natural disaster of unprecedented proportion coupled by a 
manmade disaster of neglect, poor design, faulty design, and no telling 
what else will be discovered. This is the result. These are homes that 
resulted. A hurricane did not do this. Katrina did not do this. Rita 
did not do this. We did this. The Federal Government sponsored this 
disaster by not securing and supporting the levee system, by not 
engineering it properly, and this home that is in Chalmette, which is 
in St. Bernard Parish which lost almost every home in the parish. This 
is why I say we shouldn't go home because people in St. Bernard, in St. 
Tammany, in Orleans, in Vermilion, in Cameron, in Calcasieu, in 
counties along the Mississippi gulf coast from towns such as Biloxi and 
Waveland, this is what their homes look like.
  Let me show another picture. The sun is shining, but it is not a 
happy time for the family that lived in this home. This could have been 
done from a hurricane, from wind damage. There may or may not have been 
flooding in this home. I am not sure if this was on the gulf coast, but 
I can promise, hundreds of thousands of homes along the gulf coast 
looked like this.
  What our delegation has said with the rising voices of the 
Mississippi delegation, as well as the Louisiana delegation, without 
action, homes are going to stay looking like this for months, if not 
years.
  I do not know how to express any more clearly that what we have done 
to date is wholly insufficient. FEMA, on its best day, being led by the 
finest executive you could find in the country, is not designed to meet 
the challenges of this kind of disaster. Let me repeat, on its best 
day, with the finest executive we could find, it is not designed to 
meet this disaster. So when people continue to say, and legislators and 
Congressmen, ``Well, we have sent $62 billion to FEMA. We have done 
enough,'' I, please, want to plead with my colleagues and the citizens 
of our Nation, do not confuse sending money

[[Page 28217]]

to FEMA with giving help to homeowners, businesses, large and small, in 
Mississippi and Louisiana. Please do not confuse that. They are two 
separate things. You can send money to FEMA and then maybe cross your 
fingers to see if any of that money gets to solve this problem.
  This is a picture I have used a lot because it reminds me of my own 
grandmother who had a camp a lot like this. There is virtually nothing 
left of the camp we owned. But this is typical of senior citizens 
throughout the gulf coast. This would be what most of our grandparents 
and parents are going to do this holiday. This picture--it really is 
one of the most heart wrenching, moving pictures, and I have seen 
thousands of them.
  What does this woman do? FEMA is not enough to help. That is why I 
have said we are going to slow this process down. I know people are 
anxious to get home for the holidays. I know this is not the only issue 
before America. But it goes to the heart of what homeland security is 
about--or should be about. If you cannot be secure in your own 
hometown, if you cannot be secure in your own home, if you cannot be 
secure when you are kneeling in your own church or when you are in your 
own business, where can you be secure? I am not suggesting we are 
powerful enough to stop hurricanes, but I am suggesting we should be 
smart enough and powerful enough to mitigate against their damage, to 
prevent manmade disasters by underinvestment in civil works systems 
that are important for the growth of the country, and men and women 
enough when the disaster does happen to step up and think outside the 
box and do something that actually helps people. So I am not anxious to 
go home because the people I represent do not have any homes to go home 
to.
  Now, this next picture is not as dramatic a picture, but it will tell 
you the story. In the South, we have been talking about Hurricane 
Andrew since it hit. I think it was in 1992. Yes, here it is, 1992. 
Hurricane Andrew in the South is like a legend. People talk about 
Camille, they talk about Betsy, but then everybody says: Andrew. It hit 
Florida. It did not hit us, but a lot of our people went over to 
Florida to help. We remembered Andrew. We saw pictures of Andrew for 
months, and we did everything we could to try to help in Florida. And 
it was the worst, costliest storm ever to hit.
  Can I show you what Katrina is? This is not even counting Rita. For 
Katrina, insured losses are twice--twice--that of Hurricane Andrew. And 
this is not even showing the costs for Rita. It could be triple the 
costliest storm in the history of the United States. It is not because 
the hurricanes were really maybe as bad. And maybe they were equal. But 
this differential is about a levee break in an urban area, putting 
200,000 homes underwater and uninhabitable, and 18,000 businesses.
  I believe, if I am not wrong about Hurricane Andrew, we lost 28,000 
homes. That is a lot of homes. Think about a town with 30,000 people. 
That is a pretty big-sized town. Think about every home in the town 
being destroyed. That is a very terrible tragedy. We had 205,000 homes 
totally destroyed, uninhabitable, from Katrina. These are not homes 
with blue tarps on the roof until the roofer can come in, with people 
in the kitchen; these are homes that you cannot stay in for more than 5 
minutes or maybe an hour or two to clean up. There is no water. There 
is no electricity. There is mold. There is mildew. People are gutting 
their homes, basically sitting on slabs. That is 205,000 homes totally 
destroyed. Mississippi had 68,000 homes totally destroyed, we had 
205,000 homes totally destroyed, for a total of almost 300,000 homes--
poof--gone, destroyed. That is not damaged. That is not thousands of 
homes that have a tree through the roof or the porch fell off or there 
was water in the kitchen and the appliances do not work but you can 
sleep in the bedroom and just kind of wait for the kitchen to get back. 
These are 300,000 homes gone.
  Many of them did not have insurance because they were not required to 
because our laws were not written correctly to require them to. They 
were sitting in high places, in places that had never flooded before. 
And they looked up, and because our levee system failed, they have lost 
their house, they have lost their business, they have lost their 
financial future. Their children are not going to college. Their kids 
are not in the school. They are not worshiping in their church. And we 
are sitting around here passing 100 bills that have nothing to do with 
helping them.
  Yes, this chart is what I was looking for. Sometimes I cannot keep 
numbers in my head and sometimes I can. There were 28,000 homes lost 
from Andrew. Charley, Frances, Ivan, and Jeanne--we still talk about 
those hurricanes. They were terrible hurricanes and 27,000 homes 
destroyed. Look at Katrina--275,000 homes destroyed.
  Now, this graph is why we are struggling to a point where I just 
cannot quite describe that if we do not get some real help real soon, 
this region is not going to be able to stand back up. Now, we will 
eventually--I will get to that point in a minute--but it is going to be 
very difficult. We lost 18,752 businesses in Louisiana alone. 
Mississippi lost close to 2,000. Let me repeat: 18,000 in Louisiana, 
2,000 in Mississippi.
  Now, I am not saying this to minimize what happened to the gulf 
coast. As I have shared with Senators with whom I serve, I grew up on 
the gulf coast. I love Pass Christian probably as much as they do, but 
they had 2,000 businesses destroyed. But when levees break in a major 
city, this is what happens. This is virtually every small business or a 
large part of the small businesses in the metropolitan area.
  Now, we stand up here in this Senate all the time and say: Small 
business is the backbone of our economy. Please, let's help small 
business. Could somebody tell me how FEMA is actually going to stand up 
these 18,752 businesses that pay taxes, that were patriots, that played 
by the rules, paid their employees? These are not big corporations. We 
only have one Fortune 500 company. But we have a lot of good people who 
worked hard to build those businesses, and--poof--they are gone. Some 
of them had insurance, but some of them did not.
  So we put in a bill 7 weeks ago. Olympia Snowe and John Kerry passed 
a bill almost unanimously in the Senate. It is sitting somewhere 
because we just cannot get out of the box enough to help these people. 
We have to go through the same old regular process that is not working. 
And last time I checked, under the administration's proposal, we had 
processed a grand total of six--six--six--GO Loans in Louisiana. I have 
18,000 businesses gone, and we processed 6 GO Loans last week.
  When I suggest we have been about as patient as we can be, that is 
why we may be staying here through Christmas.
  The system is not working. Business owners are losing everything they 
worked for, not in one lifetime, three lifetimes--grandfather, father, 
son, or grandmother, daughter, granddaugh-
ter, 60, 70 years, businesses gone. And this Congress can't figure out 
how to help these businesses. But we are building infrastructure in 
Iraq. We are building businesses in Iraq, but we can't help our own 
American businesses.
  Political allies of the White House have said that more has been 
accomplished than any other American disaster including 9/11. The claim 
cannot be justified. That claim is inaccurate. It is not valid. It 
cannot be substantiated. It is not justified under any objective 
criteria. What might be true is that we have sent more money through 
FEMA to try to help, but it is anemic. It is not functioning well. And 
the money is not getting to the people who need it.
  That is why Senator Cochran and Senator Byrd have stepped up with a 
reallocation and said: OK, we hear you Louisiana. We hear you 
Mississippi. Let's not add any money, but let's take $30 billion of the 
FEMA money, since it is sitting in a bank account not being used, and 
move it over, give it to our Governors with community development block 
grants, full accountability, full flexibility.

[[Page 28218]]

  We will send you some money, $6,000 per child for your education, 
because the schools took these children in. They knocked at the door. 
The schools took our children in, 370,000. They were never asked if 
they could pay. They have been educating these children for 6 months. 
The Federal Government has yet to give one of these school systems in 
Houston or Baton Rouge or Lafayette or Jackson, MS, one penny for 
taking these kids in. I don't know, do we expect schools that are 
having trouble anyway to take in children and educate them for free? 
They have added teachers, classrooms, and the Federal Government sits 
here giving money out right and left through every door as fast as it 
can get out, and we can't give money to school systems educating kids 
whose homes flooded and whose parents have no business anymore.
  Senator Cochran has put that in his bill, mostly for Louisiana. We 
don't think that we have to keep saying that if we don't get better 
levees, not only can we not rebuild our city and region, but it would 
be morally the worst thing that could be done not to help people feel 
safe and protected as they make decisions to go back. We have put a 
substantial amount of money in the budget with Senator Cochran's 
proposal for category 3 real levee protection and a downpayment on 
category 5 which is essential to us as we rebuild. With the community 
development block grant, the Governors, along with our parish 
presidents and municipal officials, can take that money and fashion it 
to help match private sector donors, to help supplement insurance 
payments, to help with some strategic housing initiatives and begin 
getting tools and capital and money out in these communities in the 
right ways to help stand them up.
  We have to argue about this, not adding money to the budget, 
reallocating FEMA, and yet we are still arguing with the House on the 
total amount. Maybe they don't want to do 17, so we are down to this or 
that.
  This week we cannot leave until we pass a Cochran-Byrd reallocation 
of the President's supplemental. With all due respect to the 
administration, the supplemental that was sent to us was a bill of $17 
billion, except for some serious levee money which I thank the 
administration for. I thank the administration for putting that money--
I think it was $1.6 billion--in their original request. We appreciate 
it. But the rest of the money in that bill was basically to refurbish 
Federal facilities.
  I want to show again the picture of the lady. This is what I want to 
refurbish. I understand we have to refurbish Federal facilities. I know 
that Federal bureaucracies are important. But this is where we are 
trying to get the money, to citizens such as this woman who have worked 
hard their whole life, raised their family, never asked anybody for too 
much. Now they are sitting in a house with nothing. This is whom we are 
trying to help. We are trying to get money to the private sector, to 
private property owners, not to refurbish Federal Government buildings. 
So Senator Cochran took that bill and said: If you want to help 
refurbish Federal buildings, fine, but we need to add money to help 
citizens, patriots, business owners in our States.
  I sure hope we can do that because it will be a shame if we do not.
  I want to add a quote from Governor Haley Barbour. There has been a 
lot of discussion about Mississippi's approach and Louisiana's 
approach. But pain has a way of bringing people together.
  Governor Barbour said yesterday:

       We are at a point where our recovery and renewal efforts 
     are stalled because of inaction in Washington, D.C., and the 
     delay has created uncertainty that is having a very negative 
     effect on our recovery and our rebuilding.

  If this is coming from Governor Barbour, who is part of the party in 
power and was head of the Republican Party for many years, who lost a 
fraction of the homes that we lost, how do you think the people of 
Louisiana are feeling about the stalled recovery effort and the 
desperation as they see Congress winding down for the holidays? They 
ask: Why aren't people in Washington understanding what we are going 
through?
  I want to read for the Record an appropriate and moving quote, right 
on target as far as I am concerned, from Vanity Fair in November. It 
says:

     . . . when the damage is this catastrophic, the people so 
     helpless, the government so weak and clumsy, we expect it to 
     take place somewhere else--on the coast of Sri Lanka or 
     Bangladesh, for instance--somewhere distant and more poor. . 
     . . We do not expect to see our government so impotent and 
     indifferent that it is completely paralyzed . . .

  I know the men and women with whom I work. I don't find them to be 
incompetent or paralyzed. I believe they are sensitive and smart and 
intelligent people. What is it that is keeping us in this Congress from 
understanding FEMA isn't working. The Red Cross is not sufficient. 
People are suffering. New tools are needed. Let's get about helping 
people here at home.
  There has been some unbelievable debate about whether New Orleans 
should be rebuilt. Our city has been there for 300 years. Thomas 
Jefferson leveraged the entire Treasury to buy the city of New Orleans 
because of its strategic advantage, which was true then. It is true 
now. Andrew Jackson took his troops and defeated the British to protect 
it in 1815 because it is the greatest port system in America. It is 
America's only energy coast. You can't have a great nation without 
protecting your Southern border. You can't have great trade. What 
thought of anyone would be that we can't rebuild New Orleans in the 
region of south Louisiana after we have given so much to this economy? 
We are not a charity case. We need help, we need respect, and we need a 
partner.
  We will rebuild New Orleans and south Louisiana and the gulf coast of 
Mississippi. The people have spoken, and the spirit is strong. We may 
not have houses to live in or businesses to go to, but the people who 
have lived in this part of the world are strong people. We are Black 
and White, Hispanic, different socioeconomic levels, but we have lived 
there. The question is, Will we have a partner in the Federal 
Government? This week we will see if we have a partner.
  Let's get on to the business of getting these bills passed. We will 
be slowing it down until we do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, is there a speaker designated to go 
next?
  The PRESIDING OFFICER. The Senator from Iowa is previously designated 
to follow the Senator from Louisiana.
  Mr. FEINGOLD. In light of the fact that the Chair indicated that the 
Senator from Iowa is to be next, I ask unanimous consent that I may 
speak next, and that I may use as much time as I may require.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Iowa is recognized.


                           Childhood Obesity

  Mr. HARKIN. Mr. President, over the last several years, we have 
repeatedly heard alarming reports about the rising tide of overweight 
and obesity in the United States, particularly among young children. 
Over the past two decades, the rate of obesity has doubled in children 
and tripled in adolescents. Fifteen percent of the children in this 
country are now overweight. In fact, the United States has a higher 
percentage of overweight teens than any other industrialized country.
  This comes at a high price for our country, both in terms of the 
long-term physical health of our citizens and the enormous health care 
costs our Nation faces. Just last week, the Institute of Medicine of 
the National Academy of Sciences released a new report: ``Food 
Marketing to Children and Youth; Threat or Opportunity?''
  The report focused on one big factor that contributes to the 
childhood obesity epidemic: the relentless multibillion-dollar 
marketing of junk food to our children. This landmark report is the 
most comprehensive and systematic review to date of the impact of food 
marketing on the diets of American youth. Its conclusions are 
troubling, but they hardly come as a surprise to parents who know well 
the effects of food marketing on their children.
  In a nutshell, the Institute of Medicine concluded that there is 
strong scientific evidence that food marketing

[[Page 28219]]

influences food preferences, the purchases and diets of children age 12 
and below. Even more important, the Institute of Medicine confirms what 
many had suspected before, that ``television advertising influences 
children to prefer and request high-calorie and low-nutrient food and 
beverages.''
  Let me just read two sentences from the executive summary. I am 
quoting directly from the Institute of Medicine's finding:

       It can be concluded that television advertising influences 
     children to prefer and request high-calorie and low-nutrient 
     foods and beverages.

  That is a key finding. Next, on the broad conclusions: Food and 
beverage marketing practices geared to children and youth are out of 
balance with healthful diets and contribute to an environment that puts 
their health at risk.
  There you have it. Now, 2 years ago, I requested this study to be 
done. We put money in the appropriations bill for the CDC to do the 
study. They contracted with the National Academy of Sciences and the 
Institute of Medicine to do the study. This is an unbiased landmark 
study. It proves conclusively that our kids are being inundated nonstop 
with advertising that puts their health at risk.
  The food industry is a $900 billion-a-year business. It spends 
billions of dollars promoting food products, much of it targeted at 
kids. The IOM report is important because it outlines in great detail 
how over the past decade advertising directed at our children has grown 
to a point where they are bombarded nonstop with ads. Indeed, food 
marketing has expanded in both intensity and variety into nearly all 
areas of kids' lives.
  The food industry spends more than $11 billion a year targeting kids 
with marketing campaigns through television, movies, magazines, 
Internet, in-school marketing, kids clubs, toys, coupons, and product 
placement in movies and books. Marketing to kids has become so 
pervasive and sophisticated that over the past several years marketing 
firms have even begun to employ child psychologists who specialize in 
this field to help devise their strategies.
  On the advice of these psychologists, advertisers make use of media 
fantasy figures, celebrities, and cartoon characters. They use messages 
crafted to imply that products will give kids power, make them popular. 
The aim is simply to exploit kids' imaginations and their 
vulnerabilities and to sell them products or to get them to nag their 
parents to buy certain products.
  What kind of foods are they marketing to our kids? We are not talking 
about apples and pears and peaches and broccoli and carrots. We are 
talking about high-fat, high-sugar, high-sodium foods with little or no 
nutritional value.
  The food industry contends it is concerned about the health and 
nutrition of our children, and that it is taking active steps to change 
its marketing practices to introduce new products that are healthier 
for our children. But is that really the case?
  In limited instances, the industry has taken some positive steps. For 
example, in the past year, both Kraft Foods and Pepsico have announced 
they will take steps to curb the marketing of unhealthy food products 
to children, and instead focus on the promotion of healthier products. 
I have commended publicly, and I do so again today on the floor of the 
Senate--both Kraft and Pepsico for taking a leadership position in this 
area.
  But here is the problem. This Institute of Medicine report is clear 
that such responsible actions are far from the industry norm. As you 
can see from this chart, the number of new products that the food 
industry has targeted to kids have gone up tenfold over the past 10 
years, from around 50 to just under 500 in 2004--500 new products per 
year--not apples, not salad bars. According to the Institute of 
Medicine, these 500 products are high in calories and sugar and low in 
nutrients. This is what dominated those products.
  Let's take a look at some of the examples of what is happening to our 
kids. Many advertisements for junk food snacks use characters popular 
with children. Here is one. They range from Spiderman to Sponge Bob 
Square Pants. Kids know these characters. They admire these characters. 
Quite frankly, when I saw ``Shrek 1'' and ``Shrek 2,'' I kind of liked 
Shrek. He became a loveable, nice guy who wanted to do good. Now what 
do we see? Here is Shrek advertising Twinkies, green Twinkies with a 
green filling.
  Now Shrek has a powerful appeal to kids' minds. Kids see the movie 
Shrek and they like Shrek. And Shrek, why, he likes Twinkies, so 
Twinkies must be OK to eat. That is what that message says.
  What do we know about Twinkies? The nutritional value is zero, 
harmful to kids' health.
  Shrek now becomes a bad guy trying to get our kids to eat unhealthy 
food. Shame on the advertisers who take a likable, loveable character 
when he was first introduced to kids in the movies and now using Shrek 
to poison our kids. I use the word ``poison'' because that is what this 
food does, it poisons our kids by making them obese and unhealthy.
  Then what you can do when you see this ad, you can visit 
twinkies.com. I will show that a little bit later in my presentation.
  It is not just limited to television. Food marketing has gone on in 
numerous ways that we are just beginning to explore. The Institute of 
Medicine report was shocking. One thing--I didn't know this--only 20 
percent of all food and beverage marketing in 2004 was devoted to the 
traditional methods of television, radio, and print. Only 20 percent. 
Eighty percent is going to new forms of marketing--product promotions, 
character licensing, school marketing.
  At one time, our schools were considered safe havens for our kids, 
places of learning that insulated our kids from crass commercial 
influences. No longer is that the case. Our schools have been inundated 
with commercial messages that are now a major advertising medium that 
these food companies are using to establish brand loyalty and to get 
kids to eat junk food.
  Here is a photograph of a hallway in a high school. You have the Coke 
machine, you have a POWERade machine. You have a vending machine with 
potato chips, Fritos, cookies, candy bars, M&M's. Nothing in this 
entire display is of any nutritional value. That is what is happening 
in schools.
  Let's not forget that a lot of these food marketing companies have 
exclusive contracts with schools and school districts to link the sale 
of soda pop to cash payments or equipment assistance to schools. These 
are the very foods that are making our kids obese, contributing to 
their unhealthy lifestyles.
  I often ask parents, What would you think of a parent who sat down 
with his or her child before they went to school in the morning and 
measured out 15 teaspoons of sugar, put it in a little plastic bag and 
told the kid: Here, you can take this to school and eat it. Or, on 
second thought, measure out 30 teaspoons of sugar, give it to the kid 
and say: Here, take this to school and eat it. You would think no 
parent would ever do that. But some children to buy two soda pops every 
day and two of those 20-ounce soda pops will have 15 teaspoons of sugar 
each. One 20-ounce soda pop equals 15 teaspoons of sugar. That is why 
others call this liquid candy. A 20-ounce Coke, liquid candy, that is 
all it is, 15 teaspoons of sugar.
  Why do we allow this? Why do we allow this in our schools? It is 
sending a message to our kids that this is OK? It is in school, it is 
promoted by the schools, so it must be OK. That is a new marketing 
technique they have.
  Now we have other techniques such as branded toys and new marketing 
techniques aimed at babies? Hang on, wait until you see this one: A 
baby with a 7-Up bottle. Here is a baby being nursed on a bottle that 
has a 7-Up logo on it. One might say, well, that baby can't buy 7-Up. 
No, but that baby's eyes are picking up things. When that baby gets 
older, that is going to be stuck in that baby's mind somewhere in the 
deep recesses, that was good because what that baby got out of that 
bottle was good healthy milk, formula probably. And now they are going 
to associate that with 7-Up. Imagine that, that early in life.

[[Page 28220]]

  You think that is bad, hang on, you haven't seen anything yet. Look, 
before I put this picture up here, let's agree on one thing. We all 
agree--I know the occupant of the Chair and I bet he agrees with this, 
being a doctor--that the most beneficial, nutritious food for a newborn 
baby is a mother's milk, breastfeeding. We all know that breastfeeding 
is the best, and any doctor will tell you if you are capable, you ought 
to breastfeed your child.
  Now look what we have here: A billboard with a baby breastfeeding on 
a McDonald's Burger. That just about borders on the obscene. It can't 
get any worse. I understand this did not run in the United States, but 
it ran on billboards in Europe. Here is a baby, obviously less than a 
year old supposedly breastfeeding on a McDonald's hamburger bun. Not 
only does this ad imply that fast food is a developmentally appropriate 
product for infants, it suggests that fast food is an appropriate 
replacement for the nutrition of breastfeeding, which is the perfect 
form of nutrition for babies.
  Equating a McDonald's hamburger with breastfeeding, while it might be 
intended to be humorous, is no laughing matter. It sends very subtle 
messages that breastfeeding is nutritious and so are McDonald's 
hamburgers.
  Now we have other ways of marketing. I tell you, these are 
psychologists who devise these ads. They know what they are doing. How 
about the candy counting books? Here we have ``Reese's Pieces Count by 
5,'' ``Hershey's Subtraction'' book, the ``Skittles Riddles Math'' 
book, the ``Twizzlers Percentage'' book, the ``Hershey's Fraction'' 
book, and the ``Hershey's Kisses Addition'' book.
  Here is where I am going to pay tribute again to Kraft Foods. On this 
floor periodically in the past I have shown the Oreo counting book. 
Kraft Foods discontinued that practice. Kraft Foods does not allow that 
any longer. God bless them; good for Kraft Foods.
  But here is the problem: You get one company who actually acts 
responsibly, and look what the rest of them do. They move into the 
marketplace and take market share away with their counting books.
  Again, 2-year-olds, 3-year-olds learn with counting books--Hershey's, 
M&M's, and Reese's Pieces. I don't have it here, but I saw one counting 
book where you lay it out and you actually put the M&M pieces on there, 
and when you count one, you get to eat that one piece, and when you 
count two, you get to take the two pieces of M&M's off and eat those 
two, until you get to 10 M&M pieces. Junk food, building brand loyalty 
early.
  Then we have toys. How about the toys? It is an emerging trend that 
puts the food on the toy so you don't just get it for 30 seconds, you 
get it all the time you play with your toys.
  Here we have a Coca Cola princess, whatever, a cheerleader. We have a 
Jell-O Barbie. We have a McDonald's Barbie.
  So little kids play with these and they build that brand loyalty. 
They play with a Barbie wearing a McDonald's logo or a Jell-O or a 
Little Debbie brand. That is what we have come to, where kids are 
inundated day after day not with just 30-second ads but with everything 
they play with, everything they see. Now they go to school, and they 
see the same thing in school. This is a recent innovation. It was not 
like this 20 years ago.
  Now we have the Internet, which is becoming a growing segment of the 
food marketing industry. Remember, I said earlier that Shrek urges 
children to visit twinkies.com, well, here you go. If one goes to 
twinkies.com, they go to Planet Twinkie. At Planet Twinkie, there are 
all of these little interactive things, visit the Twinkie shop, the 
Hostess Hall of Fame, the chocolate and cupcakes and snowballs. That is 
Planet Twinkie.
  So a kid sees Shrek, Shrek says: Visit my Web site, visit 
twinkie.com.
  Well, again, what are they saying to kids? They are saying: Eat junk 
food. It is fun and it is an adventure just to eat junk food and eat 
Twinkies and to eat candy and stuff, and it is good for you. And guess 
what, it will make you smart because we do it in school; you go there 
to school to learn, so since we do it all in school it makes you smart, 
too.
  So when one looks at all of these marketing techniques together, 
television, schools, product tie-ins, promotions, the Internet, branded 
baby products, what we are seeing is that the food marketers seek to do 
nothing less than envelop our children every day during all of their 
waking hours in a commercial environment that encourages them to eat 
unhealthy food.
  For years the food marketers have been saying: One cannot really 
prove that food marketing influences children's diets. Not anymore. 
With this study, food marketers can no longer say that food marketing 
does not influence children's diets. The evidence is quite clear that 
marketing has a negative influence on children's food preferences and 
on their diets.
  Some might say: Well, that is obvious. The food industry does not 
spend $11 billion a year on marketing to kids because it does not work, 
because they want to throw that money away. They spend it because it 
works brilliantly, inducing children to purchase it themselves or to 
beg, whine, and cajole their parents into buying it for them.
  Some might say: What about the parents' responsibility? Parents 
should be responsible, but parents' control is being eroded. Food 
marketers are inserting themselves between parents and their kids. 
Their control is being eroded in the face of a highly sophisticated 
billion-dollar industry. This is not a level playing field.
  Again, what can we do? Someone who has been listening to me might 
say: Well, OK, Harkin, what can you do? That is the way business works. 
What can we do about it?
  There is plenty we can do about it. The IOM report makes 
recommendations on what we ought to do. First, they say the industry 
needs to exhibit a greater level of corporate responsibility. Amen. 
Some of them have. But here is the problem: If it is not industrywide, 
one food company may do something good such as Kraft did, got rid of 
the Oreo cookie counting book. So what happens, their competitor moves 
in with other counting books. So it has to be industrywide.
  IOM calls for sweeping change in the way the food industry, the 
beverage industry, the fast food restaurant industry, the media, and 
the entertainment industries do business. They call on all of those 
industries to use the same creativity, resources and marketing 
practices that they currently use to sell junk food to instead promote 
healthier diets for kids. They call on the food companies to change the 
products they advertise as well as the products they produce. They say 
that business as usual has to change and has to change now.
  I hope corporate America is listening because if they do not change, 
then we in Congress will make them change. Almost 25 years ago, the 
Federal Trade Commission warned Congress about the dangers of 
advertising aimed at children. What did Congress do? We attacked the 
FTC and took away its regulatory authority as it pertains to children's 
ads.
  In 1978, the FTC undertook an investigation and found that TV 
advertising directed at young children was both unfair and deceptive. 
They found that the advertising of high sugar foods to children is 
unfair and deceptive. They suggested that restrictions on ads directed 
at the young and vulnerable minds might be appropriate. But the 
broadcast industry went nuts. The food industries went nuts. The 
advertisers went nuts, and they got Congress to kill the messenger.
  In 1981, this Congress stripped the Federal Trade Commission of its 
regulatory authority as it pertained to children's advertising. It 
expressly prohibited the Federal Trade Commission from following 
through on its proposals to ban or restrict advertising directed at 
children. This new law made it next to impossible to regulate 
advertising directed at kids. It is a little known fact that right now 
the FTC has more authority to regulate advertising at me and you and 
adults than it does to our kids, and here is how it does that.
  There are two ways the Federal Trade Commission can regulate 
advertising: If it is unfair or deceptive.

[[Page 28221]]

  In 1981, this Congress cut off one arm of the FTC in regulating 
advertising to kids. The FTC can only regulate advertising to kids if 
it is deceptive, not if it is unfair. Interesting point. One might say: 
Well, an advertisement of junk food is not deceptive, but is it unfair? 
It is, according to the Institute of Medicine because the Institute of 
Medicine said that kids lack the cognitive ability to discern between 
advertising, persuasive intent advertising and a program.
  It stands to reason, if one is a young kid, they do not understand 
what advertising is all about. They get inundated with all of this, and 
it makes an impression on them, sticks with them, but they do not 
understand this is advertising. That is what the Institute of Medicine 
says. This is a medical report.
  So I submit that any advertising that advertises high-calorie, high-
in-fat junk food to kids that has no nutritional value, that is 
inherently unfair because kids do not understand the intent. Forget 
about deceptive. It is unfair. It may not be unfair to adults, since we 
understand what advertising is about--we should have that ability--but 
it is to kids. That is why we need to give the Federal Trade Commission 
the authority to regulate advertising to children both on unfairness 
and deceptiveness, as it does to adults. I want to point out, in 
closing, that I have introduced legislation to give FTC that authority.
  In addition, the IOM talks about Government responsibility. It says 
that:

       Government at all levels should marshal the full range of 
     public policy approaches (e.g., subsidies, legislation, 
     regulation, federal nutrition programs), to foster the 
     development and promotion of healthful diets for children and 
     youth.

  It says, ``Government and industry should work together to set higher 
standards for marketing to children.'' They called for changes in the 
school environment, to get rid of the junk food and the vending 
machines.
  When we come back next session, Senator Specter and I will introduce 
the Child Nutrition Promotion and School Lunch Protection Act. This 
legislation will, per the recommendation of the IOM, require the 
Department of Agriculture to update its nutritional guidelines for 
school food sales and ensure that the foods available to kids during 
the school day promote, rather than undermine, their health and 
learning.
  We in this Congress have a responsibility to protect America's 
children from the sophisticated, aggressive, relentless marketing of 
junk food to our children. We have a responsibility to stick up for our 
parents. Our parents don't have a chance when our kids are inundated, 
day after day, hour after hour, even in places where parents don't have 
control--in our schools, when they watch a movie, when they pick up a 
book, a counting book.
  I was in a school not too long ago, looking at some renovations in a 
school, an elementary school. Do you know what the kids had to sit on? 
Coca-Cola chairs; little chairs with the Coca-Cola legend, red and 
white, with Coca-Cola written on it. I assume that they donated the 
chairs to the school. But this is the idea, to get it into the kid's 
head early, that education and having a high sugar soft drink go hand 
in hand.
  Late in her life, Jackie Kennedy said a very wise thing. She said, 
``If you botch raising your children, nothing else you do in your life 
matters very much.''
  With what we now know, thanks to the IOM report, what we know about 
the destructive impacts of junk food marketing to the kids, with the 
new insights thanks to the Institute of Medicine, it is clear by 
allowing the food industry to market junk foods to our kids we are 
botching the raising of all of our children.
  Again, this is enough. This report makes it clear that it is time to 
say to those who are enveloping our kids in this sort of 24-hour-a-day, 
7-day-a-week nonstop advertising, that it is enough. Foods that are 
high in fat, sugar, and salt have their place. We all like to have a 
cookie. I enjoy a piece of candy as much as anybody else. They have 
their place. But they ought to be kept in their place--not in schools, 
not in advertising. They ought to be kept in their place and the place 
to start is with sensible, long overdue regulation of the advertising 
and marketing of junk food to children.
  I yield the floor.
  The PRESIDING OFFICER (Mr. DeMINT). The Senator from Wisconsin is 
recognized.
  Mr. FEINGOLD. On behalf of Senator Dodd, I wish to inform our 
colleagues that for health reasons Senator Dodd will necessarily be 
absent from Senate business for the remainder of the week. He thanks 
his colleagues for their courtesy and understanding.
  Mr. President, I commend my colleagues who came to the floor 
yesterday to discuss the PATRIOT reauthorization, and I thank Chairman 
Specter for initiating a very interesting debate with me when we were 
both on the floor. That is exactly the kind of dialog we want to see on 
the floor more often. I hope we will see a lot more of it over the next 
few days. The PATRIOT Act reauthorization conference report has come to 
the Senate and the Senate will be faced with a very important choice. I 
expect this debate will be lengthy and hard fought, so I wanted to take 
some time tonight to lay out the background and the context for this 
debate, and to discuss my concerns about the conference report with 
some specificity.
  Because I was the only Senator to vote against the PATRIOT Act in 
2001, I want to be very clear about something from the start. I am 
not--not--opposed to reauthorization of the PATRIOT Act. I supported 
the bipartisan compromise reauthorization bill that the Senate passed 
earlier this year, that had no Senator at all objecting. I believe the 
bill should become law. The Senate reauthorization bill is not a 
perfect bill, but it is a good bill. If that were the bill we were 
considering today, I would be on the floor speaking in support of it. 
In fact, we could have reauthorized the PATRIOT Act several months ago 
if the House had taken up the bill the Senate approved without any 
objections.
  I also want to respond to those who argue that people who are 
demanding a better conference report want to let the PATRIOT Act 
expire. That is actually nonsense. Not a single Member of this body is 
calling for any provision of the PATRIOT Act to completely expire. As 
Senator Sununu eloquently argued yesterday, just because we are coming 
up against the end of the year does not mean we should have to 
compromise the rights of law-abiding Americans. There are any number of 
ways we can get this done and get it done right before the end of the 
year.
  Let me also be clear about how we ended up voting on a badly flawed 
conference report just days before certain provisions of the PATRIOT 
Act expired. The only reason we are debating this conference report in 
the middle of December, rather than in the middle of September or 
October, is because the House--the House--refused to appoint its 
conferees for 3\1/2\ months. It passed its reauthorization bill on July 
21, but it did not appoint the conferees until November 9. In the 
Senate, on the other hand, we passed a bill by unanimous consent on 
July 29 and we appointed our conferees the very same day. We were ready 
and willing to start the process of resolving our differences with the 
House right away, leaving plenty of time to get this done without the 
pressure of the end-of-the-year deadline.
  So when I hear Members of the House already attempting to place blame 
on those of us in the Senate who object to this conference report, I am 
a little bit frustrated. If there is anyone to blame, it is the House 
leadership for playing a game of brinkmanship with this crucial and 
controversial issue. Senators who are standing strong for the rights 
and freedoms of the American people will not be at fault if parts of 
the PATRIOT Act expire.
  I also want to clear up one related misconception. I have never 
advocated repeal of any portion of the PATRIOT Act. In fact, as I have 
said repeatedly over the past 4 years, I supported most of the 
provisions of the bill. There are many good provisions in the bill. As

[[Page 28222]]

my colleagues know, the PATRIOT Act did a lot more than expand our 
surveillance laws. Among other things, it set up a national network to 
prevent and detect electronic crimes such as the sabotage of the 
Nation's financial sector, it established a counterterrorism fund to 
help Justice Department offices disabled in terrorist attacks to keep 
operating, and it changed the money laundering laws to make them more 
useful in disrupting the financing of terrorist organizations. One 
section of the PATRIOT Act even condemned discrimination against Arab 
and Muslim Americans.
  Even some of the act's surveillance sections were not troubling. In 
fact, one provision authorized the FBI to expedite the hiring of 
translators. Another added terrorism and computer crimes to the list of 
crimes for which criminal wiretap orders could be sought. And some 
provisions helped to bring down what has been termed ``the wall,'' the 
wall that had been built between intelligence and law enforcement 
agencies.
  This week we have heard a lot of people saying we must reauthorize 
the PATRIOT Act in order to ensure that this wall does not go back up. 
Let us make this clear. I supported and continue to support the 
information-sharing provisions of the PATRIOT Act. One of the key 
lessons we learned in the wake of September 11 was that our 
intelligence and law enforcement agencies were not sharing information 
with each other, even where the statutes permitted it. In the PATRIOT 
Act we tore down the remaining legal barriers.
  Unfortunately, the law was not so much a legal problem as a problem 
of culture and the report of the 9/11 Commission made that very clear. 
I am sorry to report that we have not made as much progress as we 
should have in bringing down those very significant cultural barriers 
to information sharing among our agencies.
  The 9/11 Commission report card that was issued last week gave the 
Government a ``D'' for information sharing because their agencies' 
cultures have not changed enough these 4 years after the change in the 
law in the PATRIOT Act.
  There is a statement issued by Chairman Kean and Vice Chairman 
Hamilton that explained:

       You can change the law, you can change the technology, but 
     you still need to change the culture. You still need to 
     motivate institutions and individuals to share information.

  So far, unfortunately, our Government has not met the challenge.
  Talking about the importance of information sharing, as 
administration officials and other supporters of the conference report 
have done repeatedly, is part of a pattern that started several years 
ago. Rather than engage in a true debate on the controversial parts of 
the PATRIOT Act, as Senator Specter did yesterday, unfortunately many 
proponents of the PATRIOT Act point to noncontroversial provisions of 
the PATRIOT Act and they talk about how important they are. They say 
this bill must be passed because it reauthorizes those noncontroversial 
provisions.
  That doesn't advance the debate. It just muddies it further. In fact, 
it is a red herring.
  I have news for those who would try to use that tactic. It won't 
work. We don't have to accept bad provisions to make sure that good 
provisions become law. I hope the Senate will make that lesson very 
clear this week.
  Tonight, I want to advance the debate, spend some time explaining my 
specific concerns about the conference report in some key areas. It is 
very unfortunate that the whole Congress could not come together, as 
the Senate did around the bipartisan compromise reauthorization bill. 
Back in July, the Senate Judiciary Committee, on which I serve, voted 
unanimously in favor of a reauthorization bill that made meaningful 
changes to the most controversial provisions of the PATRIOT Act to 
protect the rights and freedoms of innocent Americans. Shortly 
thereafter that bill passed the full Senate by unanimous consent. It 
was not easy for me to support that Senate bill which fell short of the 
improvements contained in the bipartisan SAFE Act.
  At the end of the day, the Senate bill contained meaningful changes 
to some of the most problematic provisions of the PATRIOT Act, 
provisions that I have been trying to fix since October of 2001. So I 
decided to support it. I made it very clear at the time, however, that 
I viewed that bill as the end point of negotiations, not the beginning. 
In fact, I specifically warned my colleagues that the conference 
process must not be allowed to dilute the safeguards in this bill. I 
meant it. But it appears that people either weren't listening or 
weren't taking me seriously.
  This conference report, unfortunately, does not contain many 
important reforms of the PATRIOT Act that we passed in the Senate. So I 
cannot support it. In fact, I will fight it with every ounce of 
strength I have. And I am delighted to be part of a strong bipartisan 
consensus that believes, as I do, that this conference report is 
unacceptable.
  Let me start with section 215, the so-called ``library'' provision, 
which has received so much public attention.
  I remember when the former Attorney General of the United States 
called the librarians who were expressing disagreement with this 
provision ``hys-
terical.''
  What a revelation it was when the chairman of the Judiciary 
Committee, the Senator from Pennsylvania, opened his questioning of the 
current Attorney General during his confirmation hearing by expressing 
his concern--the chairman's concern--about this provision of the 
PATRIOT Act. He got the Attorney General to concede that, yes, in fact, 
this provision probably went a bit too far and could be improved and 
clarified. That was an extraordinary moment. It was a moment, I am 
afraid, that was very slow in coming and long overdue.
  I give credit to the Senator from Pennsylvania because it allowed us 
to start having, for the first time, a real debate on the PATRIOT Act. 
But credit also has to go to the American people who stood up despite 
the dismissive and derisive comments of Government officials and said 
with loud voices: The PATRIOT Act needs to be changed. And these voices 
came from the left and the right, from big cities and small towns all 
across the country. So far, over 400 State and local governmental 
bodies have passed resolutions calling for revisions to the PATRIOT 
Act. I plan to read some of those revisions on the floor of the Senate 
in this debate, and there are a lot of them. Nearly everyone mentions 
section 215.
  Section 215 is at the center of this debate over the PATRIOT Act.
  It is also one of the provisions that I tried unsuccessfully to amend 
on the floor in October 2001.
  So it makes sense to start my discussion of the specific problems I 
had with the conference report with the infamous library provision.
  Section 215 of the PATRIOT Act allowed the Government to obtain 
secret court orders in domestic intelligence investigations, to get all 
kinds of business records about people, including not just library 
records but also medical records and various other types of business 
records. The PATRIOT Act allowed the Government to obtain these records 
as long as they were ``sought for''--that is all, ``sought for''--in a 
terrorism investigation. That is a very low standard. It doesn't 
require that the records concern someone who is suspected of being a 
terrorist or a spy, or even suspected of being connected to a terrorist 
or a spy. It didn't require any demonstration of how the records would 
be useful in the investigation.
  Under section 215, the Government simply said--this is fact--all the 
Government has to do is say the magic words, that it wanted records for 
a terrorism investigation, then the secret FISA court was required--
required--to issue the order, period. No discretion. The judge had to 
give the order.
  To make matters worse, recipients of these orders are subjected to an 
automatic gag order. They cannot tell anyone that they have been asked 
for the records.
  Some in the administration and even in this body took the position 
that people shouldn't be able to criticize these provisions until they 
can come up with a specific example of abuse.
  The Attorney General makes that same argument today in an op-ed in

[[Page 28223]]

the Washington Post when he simply dismisses concern about the PATRIOT 
Act by saying: ``There have been no verified civil liberties abuses in 
the 40 years of the Act's existence.''
  That has always struck me as a strange argument since 215 orders are 
issued by a secret court, a secret court. And people who receive them 
are prohibited by law from discussing them.
  In other words, the way the law is actually designed, it is almost 
impossible to know if any abuses have occurred. How would we find out? 
It is a secret court and nobody can talk about it.
  The Government should not have the kind of broad, intrusive powers it 
gave itself in section 215. And the American people shouldn't have to 
live with a poorly drafted provision that clearly allows for records of 
innocent Americans to be searched and just hope that the Government 
uses it with restraint.
  A government of laws doesn't require its citizens to rely on the 
goodwill and the good faith of those who have those powers, especially 
when adequate safeguards can be written into the laws without 
compromising their usefulness as a law enforcement tool.
  After lengthy and difficult negotiations, the Judiciary Committee 
came up with language this year that achieved that goal. It would 
require the Government to convince a judge that a person has some 
connection--some connection--to terrorism or espionage before obtaining 
their sensitive records. When I say some connection, that is what I 
mean.
  The Senate bill standard is the following: One, that the records 
pertain to a terrorist or a spy; two, the records pertain to an 
individual in contact with or known to a suspected terrorist or spy; 
or, three, that the records are relevant to the activities of a 
suspected terrorist or spy.
  That is a three-pronged test in the Senate bill. I think it is quite 
broad. I think it is more than adequate to give law enforcement the 
power it needs to conduct investigations but also at the same time 
protecting the rights of innocent Americans.
  It would not limit the types of records that the Government could 
obtain, and it does not go as far to protect law-abiding Americans as I 
might prefer, but it would make sure the Government cannot go on a 
fishing expedition into the records of innocent people.
  The Senate bill would also give recipients of a 215 order an 
explicit, meaningful right to challenge business record orders and the 
accompanying gag orders in court. These provisions passed the Senate 
Judiciary Committee unanimously after tough negotiations late into the 
night. Unfortunately, the conference report just did away with their 
delicate compromise.
  First and most importantly, it does not contain the critical 
modification to the standard for section 215 orders.
  The Senate bill permits the Government to obtain business records 
only if it can satisfy one or more prongs of the three-pronged test 
that I just described.
  This is a broad standard with a lot of flexibility. But it retains 
the core protection that the Government cannot go after someone who has 
no connection whatsoever to a terrorist or a spy or their activities.
  What does the conference report do? The conference replaces the 
three-pronged test with a simple relevant standard. It then provides 
the presumption of relevance if the Government meets one of the three 
prongs I just described.
  But it is silly to argue that this is adequate protection against a 
fishing expedition. The only actual requirement in the conference 
report is that the Government show that the records are relevant to an 
authorized intelligence investigation. Of course, ``relevance'' is a 
very broad standard that can arguably justify the collection of all 
kinds of information about law-abiding Americans.
  The three prongs now are just examples of how the Government can 
satisfy the relevance standard, and that is simply a loophole, or an 
exception that swallows the rule. The exception is the rule.
  In fact, a better way to say it is that this is actually a complete 
rule, and the exception has been rendered meaningless.
  I will try to make this as straightforward as I can. The Senate bill 
requires the Government to satisfy one of three tests. Each test 
requires some connection between the records and a suspected terrorist 
or spy. The conference report says that the Government only is required 
to satisfy a new fourth test, which is just relevance, which does not 
require a connection between the records and a suspect. So basically 
the other three tests no longer provide any protection at all.
  The conference report also does not authorize judicial review of the 
gag order that comes with a 215 order. While some have argued that the 
review by the FISA court of a Government application for a section 215 
order is equivalent to judicial review of the accompanying gag order, 
that is simply inaccurate. The statute does not give the FISA court any 
latitude to make an individualized decision about whether to impose a 
gag order when it issues a section 215 order. It is required by statute 
to include a gag order in every section 215 order. That means that the 
gag order is automatic and permanent in every case. This is a serious 
deficiency, one that very likely violates the first amendment.
  In litigation challenges, a semi-permanent national security letter 
statute, two courts have found first amendment violations because there 
is no individualized evaluation of the need for secrecy. I have these 
decisions right here; perhaps I will have a chance to read them in 
detail during the debate.
  I will discuss other provisions in the conference report that fail to 
adequately address the concerns expressed in this Senate and around the 
country about the PATRIOT Act. Section 215 is a linchpin of this 
debate. To keep faith with the American people and with our 
constitutional heritage, we have to address the problems with section 
215 in this reauthorization bill. There is no way around that.
  Let me turn next to a very closely related provision that has finally 
been getting the attention it deserves--the national security letter, 
or NSL, an authority that was expanded by sections 358 and 505 of the 
PATRIOT Act. This NSL issue has flown under the radar for years even 
though many of us have been trying to bring more public attention to 
it. I am gratified that we are finally talking about these NSLs, in 
large part due to a lengthy Washington Post story published last month 
explaining just what these authorities are and reporting that the use 
of these powers has increased dramatically.
  What are NSLs? Why are they such a concern? Let me spend a little 
time on this because it is important. National security letters are 
issued by the FBI to businesses to obtain certain types of records. 
They are similar to section 215 orders but with one very critical 
difference: The Government does not need to get any court approval 
whatever to issue that. It does not have to go to the FISA court and 
make even the most minimal showing. It simply issues the order signed 
by the special agent in charge of a field office or some other 
supervisory official. NSLs can only be used to obtain such categories 
of business records, while section 215 can be used to obtain ``any 
tangible thing.''
  Even the categories reachable by NSLs are broad. Specifically, they 
can be used to obtain three types of business records: subscriber and 
transactional information related to Internet and phone usage, credit 
reports, and financial records. That category has been expanded to 
include records from all kinds of everyday businesses such as jewelers, 
car dealers, travel agents, and even casinos.
  Just as with section 215, the PATRIOT Act expanded the NSL's 
authorities to allow the Government to obtain records of people not 
suspected of being or even connected to terrorists or spies. The 
Government need only certify that the documents are either sought for 
or relevant to an authorized intelligence investigation--a far-reaching 
standard that could be used to obtain all kinds of records about 
innocent Americans. Just as with section 215, the recipient is subject 
to an automatic permanent gag rule, and the conference report does very 
little to fix

[[Page 28224]]

the problems of the national security letter authorities.
  In fact, I disagree with the Senator from Pennsylvania, the chairman 
of this committee, on this point. In fact, I believe it could be argued 
that the conference report makes the law worse. Let me explain why.
  First, the conference report does nothing to fix the standard for 
issuing a national security letter. It leaves in place the 
breathtakingly broad relevant standard.
  Some have analogized NSLs to grand jury subpoenas issued by grand 
juries in criminal investigations to obtain records relevant to the 
crime they are investigating. So the argument goes, What is the big 
deal if NSLs are also issued under a relevant standard for intelligence 
investigations? Two critical differences make that analogy break down 
very quickly.
  First of all, the key question is, Relevant to what? In criminal 
cases, grand juries are investigating specific crimes, the scope of 
which is explicitly defined in the Criminal Code. Although the grand 
jury is quite powerful, the scope of its investigation is limited by 
the particular crime it is investigating. In sharp contrast, 
intelligence investigations are by definition extremely broad. When you 
are gathering information in an intelligence investigation, anything 
could potentially be relevant.
  Suppose the Government believes a suspected terrorist visited Los 
Angeles in the last year or so. It might want to obtain and keep the 
records of everyone who has stayed in every hotel in Los Angeles or who 
booked a trip to Los Angeles through a travel agent over the past 
couple years, and it could argue strongly that information is relevant 
to a terrorism investigation because it would be useful to run all 
those names through the terrorist watch list.
  I don't have any reason to believe that such broad use of NSLs has 
happened. But the point is, when you are talking about an intelligence 
investigation, relevance is a very different concept than in criminal 
investigations. It is certainly conceivable that NSLs could be used for 
that kind of a broad dragnet in an intelligence investigation. Nothing 
in the current law prevents it. The nature of criminal investigations 
and intelligence investigations is different. Let's not forgot that.
  Second, the recipients of grand jury subpoenas are not subject to the 
automatic secrecy that NSL recipients are. We should not underestimate 
the power of allowing public disclosure when the Government 
overreaches. In 2004, Federal officials withdrew a grand jury subpoena 
issued to Drake University for a list of participants in an antiwar 
protest. Why? Because there were public revelations about the demand. 
That could not have happened if the request had been made under section 
215 or for records available via the national security letter 
authority.
  Fortunately, there are many other reasons the conference report does 
so little good on NSLs. Let's talk about judicial review. The 
conference report creates the illusion of judicial review for NSLs, 
both for the letters themselves and for the accompanying gag rule, and 
if you look at the details, it is drafted in a way that makes the 
review virtually meaningless.
  With regard to the NSLs themselves, the conference report permits 
recipients to consult their lawyer and seek judicial review, but it 
allows the Government to keep all of its submissions secret and not 
share them with the challenger regardless of whether there are national 
security interests at stake. So you can challenge the order, but you 
have no way of knowing what the Government is telling the court in 
response to your challenge. Parties could argue about something as 
garden-variety as attorney-client privilege with no national security 
issues, and the Government would have the ability to keep this secret. 
This is a serious departure from our usual adversarial process. I 
believe it is very disturbing.
  The other significant problem with the judicial review provisions is 
the standard for getting the gag rule overturned. In order to prevail, 
the recipient has to prove that any certification by the Government 
that disclosure would harm national security or impair diplomatic 
relations was made in bad faith. Now, that is a standard of review that 
is virtually impossible to meet. So what we have here is the illusion--
the illusion--of judicial review. When you look behind the words in the 
statute, you realize it is a mirage.
  I also want to take a moment to address again an argument made 
yesterday by the Senator from Pennsylvania about the NSL provisions of 
the conference report. He argued that many of the complaints I have 
about the NSL provisions of the conference report apply equally to the 
NSL provisions of the Senate bill. And then he says because I supported 
the Senate bill, by some convoluted theory, my complaints are, 
therefore, invalid and I should support the conference report.
  As I said yesterday, that does not make any sense.
  The NSL section of the Senate bill was one of the worst sections of 
the bill. I did not like it then, and I do not like it now. But in the 
context of the larger package of reforms that was in the Senate bill, 
including the important changes to section 215 that I talked about 
earlier, and the new time limit on sneak-and-peek search warrants, 
which I will talk about in a moment, I was able to accept that the NSL 
section was there even though I would have preferred additional 
reforms.
  The argument was made yesterday that after supporting a compromise 
package for its good parts, now I am supposed to accept a conference 
report that has the bad parts of the package even though the good parts 
have been taken out. Now, that is nonsense. Every Member of this 
Chamber who has ever agreed to a compromise--and I must assume that 
includes every one of us--knows it.
  The other point I want to emphasize is that the Senate bill was 
passed before the Post reported that there has been extensive use of 
NSLs and the difficulties that the gag rule poses for businesses that 
feel they are being unfairly burdened by them, as reported by the 
Washington Post. At the very least, I would think that an NSL sunset is 
justified. But the conferees refused to make that change. Nor would 
they budge at all on the absurdly difficult standard of review, the so-
called conclusive presumption.
  I suspect that the NSL power is something the administration is 
zealously guarding because it is one area where there is almost no 
judicial involvement or oversight. It is the last refuge for those who 
want virtually unlimited Government power in intelligence 
investigations. And that is why the Congress should be very concerned 
and very insistent on making the reasonable changes we have suggested.
  We had an interesting discussion on the floor yesterday also about 
the sneak-and-peek searches. This is another area where the conference 
report departs from the Senate's compromise language, and it is another 
reason I must oppose the conference report.
  Yesterday, the Senator from Pennsylvania made what seems on the 
surface to be an appealing argument. He says the Senate bill requires 
notice of a sneak-and-peek search within 7 days of the search, and the 
House said 180 days.
  The conference compromised on 30 days. ``That's a good result,'' he 
says. ``They came down 150 days, we went up only 23. What's wrong with 
that?''
  Well, let me take a little time to put this issue in context and 
explain why this is not just a numbers game. An important 
constitutional right is at stake. One of the most fundamental 
protections in the Bill of Rights is the fourth amendment's guarantee 
that all citizens have the right to ``be secure in their persons, 
houses, papers, and effects'' against ``unreasonable searches and 
seizures.'' The idea that the Government cannot enter our homes 
improperly is actually a bedrock principle for Americans, and rightly 
so.
  The fourth amendment has a rich history and includes in its ambit 
some very important requirements for searches. One is the requirement 
that a search be conducted pursuant to a warrant. The Constitution 
specifically requires that a warrant for a search be

[[Page 28225]]

issued only when there is probable cause and that the warrant 
specifically describe the place to be searched and the persons or 
things to be seized.
  Why does the Constitution require that particular description? For 
one thing, that description becomes a limit on what can be searched or 
what can be seized. If the magistrate approves a warrant to search 
someone's home, and the police show up at the person's business, that 
search is not valid. If the warrant authorizes a search at a particular 
address, and the police take it next door, they have no right to enter 
that house.
  But, of course, there is no opportunity to point out that the warrant 
is inadequate unless that warrant is handed to someone on the premises. 
And if there is no one present to receive the warrant, and the search 
must be carried out immediately, most warrants require that they be 
left behind at the premises that were searched. Notice of the search--
notice of the search--is part of the standard fourth amendment 
protection. Without the notice, it does not mean much. It is what gives 
meaning, or maybe we should say ``teeth,'' to the Constitution's 
requirement of a warrant and a particular description of the place to 
be searched and the persons or items to be seized.
  Over the years, the courts have had to deal with Government claims 
that the circumstances of a particular investigation require a search 
without notifying the target prior to carrying out the search. In some 
cases, giving notice would compromise the success of the search by 
leading to the flight of the suspect or the destruction of evidence. 
The two leading cases on so-called surreptitious entry, which would 
come to be known as sneak-and-peek cases, came to very similar 
conclusions.
  Notice of criminal search warrants could be delayed--delayed--but not 
omitted entirely. Both the Second Circuit in U.S. v. Villegas and the 
Ninth Circuit in U.S. v. Freitas held that a sneak-and-peek warrant 
must provide that notice of the search will be given within 7 days--7 
days--unless extended by the court. Listen to what the Freitas court 
said about such searches:

       We take this position because surreptitious searches and 
     seizures of intangibles strike at the very heart of the 
     interests protected by the Fourth Amendment. The mere thought 
     of strangers walking through and visually examining the 
     center of our privacy interest, our home, arouses our passion 
     for freedom as does nothing else. That passion, the true 
     source of the Fourth Amendment, demands that surreptitious 
     entries be closely circumscribed.

  That is the end of the quote from that case.
  So when defenders of the PATRIOT Act say that sneak-and-peek searches 
were commonly approved by the courts prior to the PATRIOT Act, they are 
partially correct. Some courts permitted secret searches in very 
limited circumstances, but they also recognized the need for prompt 
notice unless a reason to continue to delay was demonstrated. And they 
specifically said that notice had to occur within 7 days--7 days.
  Section 213 of the PATRIOT Act did not get this part of the balance 
right. It allowed notice to be delayed for any reasonable length of 
time. Information provided by the administration about the use of this 
provision indicates that delays of months at a time are now becoming 
commonplace. Now, those are hardly the kinds of delays that the courts 
had been allowing prior to the PATRIOT Act.
  The sneak-and-peek power in the PATRIOT Act caused concern right from 
the start, and not just because of the lack of a time-limited notice 
requirement. The PATRIOT Act also broadened the justifications that the 
Government could give in order to obtain a sneak-and-peek warrant. It 
included what came to be known as the catch-all provision, which allows 
the Government to avoid giving notice of a search if it would 
``seriously jeopardize an investigation.'' Some think that that 
justification in some ways swallows the requirement of notice since 
most investigators would prefer not to give notice of a search and can 
easily argue that giving notice will hurt the investigation.
  The SAFE Act, the bipartisan bill that many of us worked on, worked 
to fix both of these problems. First, it tightened the standard for 
justifying a sneak-and-peek search to a limited set of circumstances--
when advanced notice would endanger life or property, or result in 
flight from prosecution, the intimidation of witnesses, or the 
destruction of evidence. Second, it required notice within 7 days, with 
an unlimited number of 21-day extensions if approved by the court.
  The Senate bill was a compromise from this. It kept the catch-all 
provision as a justification for obtaining a sneak-and-peek warrant. 
Those of us who were concerned about that provision agreed to accept it 
in return for keeping, and actually getting back, in my view, from the 
court cases, the 7-day notice requirement. And we accepted unlimited 
extensions of up to 90 days at a time. The key thing was prompt notice 
after the fact, or a court order that continuing to delay notice was 
justified.
  That is actually the background of the numbers game that the Senator 
from Pennsylvania and other supporters of the conference report point 
to. They want credit for walking the House back from its outrageous 
position of 180 days, but they refuse to recognize that the sneak-and-
peek provision still has the catch-all justification, and unlimited 90-
day extensions. And here is the crucial question they refuse to answer: 
What possible rationale is there for not requiring the Government to go 
back to a court after 7 days and demonstrate a need for continued 
secrecy? Why insist that the Government get 30 days free without 
getting an extension? Could it be that they think the courts usually 
won't agree that continued secrecy is needed after the search is 
conducted, so they would not get the 90-day extension? If they have to 
go back to a court at some point, why not go back after 7 days rather 
than 30? From the point of view of the Government, I don't see the big 
deal. But from the point of view of someone whose house has been 
secretly searched, there is a big difference between notice after 1 
week and notice after a month.
  Suppose, for example, that the Government actually searched the wrong 
house, as I mentioned. That is one of the reasons that notice is a 
fourth amendment requirement. The innocent owner of the place that had 
been searched might suspect that somebody had broken in. They might be 
living in fear that someone has a key or some other way to enter. 
Should we make that person wait a month to get an explanation rather 
than a week? Presumably, if the search revealed nothing, and especially 
if the Government realized the mistake and does not intend to apply for 
an extension, it surely will be no hardship, other than perhaps 
embarrassment, for notice to be given within 7 days.
  All of this is about why I am not persuaded by the numbers game on 
the sneak-and-peak provisions. The Senate bill was already a compromise 
on this very controversial provision. There is no good reason not to 
adopt the Senate's provision. No one has come forward and explained why 
the Government can't come back to the court within 7 days of executing 
the search. In fact, on a discussion of this last night on one of the 
television programs, one of my colleagues literally said, 7 days versus 
30 days, what is the big deal? That is the strength of the argument. 
There is no merit to the idea of making the notice be as potentially 
late as 30 days.
  Let me put it this way: If the House had passed a provision that 
allowed notice to be delayed for 1,000 days, would anyone be boasting 
about a compromise that requires notice within 100 days, more than 3 
months? Would that be a persuasive argument? I don't think so. The 
House provision of 180 days was arguably worse than current law, which 
required notice ``within a reasonable time,'' because it created a 
presumption that delaying notice for 180 days, 6 months, is reasonable. 
It was a bargaining ploy. The Senate version was what the courts had 
required prior to the PATRIOT Act. It was itself a compromise because 
it

[[Page 28226]]

leaves in place the catchall provision for justifying a warrant in the 
first place. That is why I believe the conference report on the sneak-
and-peak provision is inadequate and must be opposed.
  Let me make one final point about sneak-and-peak warrants. Don't be 
fooled for a minute into believing that this power is needed to 
investigate terrorism or espionage. It is not. Section 213 is a 
criminal provision that could apply in whatever kind of criminal 
investigation the Government has undertaken. In fact, most sneak-and-
peak warrants are issued for drug investigations. So why do I say they 
are not needed in terrorism investigations? Because FISA also can apply 
to those investigations and FISA search warrants are always executed in 
secret and never require notice. If you really don't want to give 
notice of a search in a terrorism investigation, you can get a FISA 
warrant. So any argument that limiting the sneak-and-peak power, as we 
have proposed, will interfere with sensitive terrorism investigations 
is also a red herring.
  I have spoken at length about the provisions of this conference 
report that trouble me. But to be fair, I should mention one 
significant improvement to the conference report over last month's 
draft. This new version does include a 4-year sunset on three of the 
most controversial provisions: Roving wiretaps, the so-called library 
provision which I discussed at some length, and the ``lone wolf'' 
provision of the Foreign Intelligence Surveillance Act. Previously, the 
sunsets on these provisions were at 7 years. It certainly is an 
improvement to have reduced that number so the Congress can take 
another look at these provisions or can take a look at these provisions 
sooner.
  I also acknowledge that the conference report creates new reporting 
requirements for some PATRIOT Act powers, including new reporting on 
roving wiretaps, section 215 sneak-and-peak search warrants, and 
national security letters. There are also new requirements that the 
Inspector General of the Department of Justice conduct audits of the 
Government's use of national security letters and section 215.
  In addition, the conference report includes other useful oversight 
provisions relating to FISA. It requires that Congress be informed 
about FISA court rules and procedures and about the use of emergency 
authorities under FISA. And it gives the Senate Judiciary Committee 
access to certain FISA reporting that currently only goes to the 
Intelligence Committee. I am glad to see that it requires the 
Department of Justice to report to us on its data-mining activities.
  But adding sunsets and new reporting and oversight requirements only 
gets us so far. The conference report remains deeply flawed. I 
appreciate sunsets and reporting. I know that the senior Senator from 
Pennsylvania worked hard to ensure that they were included. But these 
improvements are not enough. Sunsetting bad law for another 4 years is 
not good enough. Simply requiring reporting on the Government's use of 
these overly expansive tools does not ensure that they won't be abused. 
We must make substantive changes to the law, not just improve 
oversight. This is our chance. We cannot let it pass by.
  Last Thursday, after the conference deal was announced, the Attorney 
General termed it a ``win for the American people in that it would 
result in continued security for the United States and also continued 
protection of civil liberties for all Americans.'' In a way, that 
comment shows that we have made some progress. The administration seems 
to understand now that protecting civil liberties is pretty important 
to our citizens. That is quite an improvement from the days when people 
who expressed these concerns were termed hysterical. But the Attorney 
General also said: ``people have seen how the Department of Justice has 
been very responsible in exercising [its] authorities.'' This comment 
reflects a fundamental misunderstanding of the relationship of the 
Government and the governed in our democracy. Trust of Government 
cannot be demanded or asserted or assumed. It must be earned. This 
Government has not earned our trust. It has fought reasonable 
safeguards for constitutional freedoms every step of the way. It has 
resisted congressional oversight and often misled the public about its 
use of the PATRIOT Act. And now the Attorney General is arguing that 
the conference report is adequate protection for civil liberties for 
all Americans? It isn't.
  We sunsetted 16 provisions of the original PATRIOT Act precisely so 
we could revisit them and make necessary changes, to make improvements 
based on the experience of 4 years with the act, and with the careful 
deliberation and debate that, quite frankly, was missing 4 years ago. 
This process of reauthorization has certainly generated debate. But if 
we pass this conference report as currently written, we will have 
wasted a lot of time, and we will have missed an opportunity to finally 
get it right. The American people will not be happy with us for missing 
that chance. They will not accept our explanation that we decided to 
wait another 4 years before addressing their concerns. They will not 
settle for half a loaf because we ran out of time to reach consensus.
  I submit that an acceptable consensus was reached unanimously by this 
Senate, every one of us, back in July. We should insist that the House 
pass that bill and give the American people a reauthorization bill that 
is worthy of their support and their confidence. I am prepared to keep 
fighting for as long as it takes to make that happen.
  I thank the Chair and 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. SESSIONS. Mr. President, I ask unanimous consent that order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I would like to share some thoughts 
about the PATRIOT Act and its importance to the security of this 
country, its reasonableness, the careful way in which it has been 
crafted and adopted, the full debate to which it has been subjected, 
and I urge our colleagues not to allow this bill to expire, not to 
allow the wall to return so that our foreign intelligence agencies 
cannot share with our domestic intelligence agencies information that 
may be directly relevant to an attack on the people of the United 
States. That is exactly what was taking place on 9/11. It is precisely 
why we have had a failure to share important information. And many 
people believe that the PATRIOT Act possibly could have prevented the 
9/11 attacks. It is easy to contemplate situations where other 
information not shared could have resulted in the lives of Americans 
being placed at risk or being lost. That is why we passed this bill.
  We have had a full debate about it. This past reauthorization came 
out of the Senate Judiciary Committee 18 to 0. Senator Feingold 
supported it. It came out of the Senate floor by unanimous consent. It 
went to a conference committee with the House. They had some different 
provisions in their version, as they always do, and the conference 
committee hammered out the differences. As Senator Specter, a civil 
libertarian himself, and chairman of the Judiciary Committee, who was 
involved in that process said, about 80 percent of what was disputed 
was decided in favor of the Senate bill. Now we are faced with a 
filibuster, an effort to block an up-or-down vote on the PATRIOT Act. 
It is really an extraordinary thing. In fact, some of the provisions 
put in by the conference committee strengthened the bill, from a civil 
liberties point of view, more than the Senate bill that left this body.
  I want to just say, first of all, that the provisions in the PATRIOT 
Act are in no way extreme, in no way novel, in no way contradictory to 
the principles of the constitutional law this country has operated 
under since its founding. I mean that very sincerely. I would say that 
everything here, in any fundamental way that results in a method

[[Page 28227]]

by which law enforcement can investigate terrorist activity--those 
procedures, those techniques, those abilities are clarified in this 
bill. These are standards that they must comply with, and that have 
been approved by the Supreme Court of the United States.
  I remember at one of the hearings I asked witnesses this question: Do 
you think any of the provisions in this act are going to be found to be 
unconstitutional by the Supreme Court as required to protect our 
liberties and enforce the constitutional protections that we as 
Americans have been given? Every one of them said no. They said that 
because there is nothing in here that is going to be found 
unconstitutional. All of these principles and techniques that are 
provided with clarity, and standards in this act are consistent with 
what we have already approved in America. But we find that many of the 
investigatory techniques available to an IRS agent who is investigating 
somebody for a nonviolent crime involving taxes, or a drug enforcement 
agent that may be investigating someone for cocaine or marijuana, and 
many of those procedures that have been approved under the Constitution 
by the Supreme Court, are not available to investigators investigating 
terrorists who would kill us.
  Everybody knows that it is a different matter when dealing with 
international entities, people who operate outside the laws of our 
country, who represent foreign powers, who represent international 
terrorist groups or other groups that are hostile to the interests of 
the United States. We have always understood that there are spies and 
we need a counterspy system in our country which will protect our 
Nation from those who would destroy it. We have always had principles 
that deal with that. For example, there have been complaints about the 
national security letters and section 215. Many of these complaints and 
those who oppose these provisions worry and suggest that something in 
the PATRIOT Act is novel, unusual, or unprecedented. But it is not so. 
I think we have had people who are utterly misinformed or sometimes 
maybe even deliberately failing to accurately articulate what is 
important and what is correct.
  The national security letters that have been referred to by some of 
those who oppose this legislation were not created by the PATRIOT Act 
of 2001. This tactic, this procedure has been available since the 
1980's. All the original PATRIOT Act did was add credit reports to the 
list of things you could get with a national security letter during the 
course of an investigation involving terrorism. Sometimes you might 
need a credit report to determine something about an individual, like 
where he is moving his money, and that kind of thing. That is all that 
was really added with regard to national security letters. Use of 
national security letters is limited to six very specific items: 
telephone toll records, bank records, credit reports, and things of 
that nature. These are all things that a drug enforcement agent can get 
with an administrative subpoena this very day to investigate someone 
for a drug crime.
  Yet we don't have similar provisions for the FBI agent who is 
investigating a terrorist? What kind of idiotic principle of 
investigation is that? So the bill allows us to do that with national 
security letters. It has been the law for some time--over 20 years. So 
we added to the original PATRIOT Act the ability to use a national 
security letter to get credit reporting records of suspected 
terrorists--a big change that won't be used much. The conference report 
more than adequately addresses concerns about the national security 
letters by setting an extremely high requirement for nondisclosure.
  Under the report, in order for the recipient to be precluded from 
telling others that they received a national security letter, a high 
Government official must certify that doing so would ``endanger the 
national security of the United States or interfere with diplomatic 
relations.'' That is an extremely high standard. In fact, I think it is 
too high. I think that in a terrorist or national security case, the 
disclosure is not such an important principle that needs this type of 
protection.
  In my view, the standard of certification is high because we may not 
always be able to make such certification. An investigator may not be 
able to certify to every one of those things and therefore may be 
denied the right to obtain a record and not have the business notify 
the person about it.
  By the way, I will repeat, we are talking about obtaining by national 
security letter from a third party, records that belong to the third 
party, not to the defendant or terrorist. You are not going into their 
house or their automobile or their desk in order to obtain their 
personal records. These are records being held at a bank, records to 
which everybody in the bank has access. These records are being held at 
a telephone company, and show the telephone toll records that you get 
on your monthly statements.
  They are not in your control. They are in the telephone company's 
control. What used to happen was people would subpoena the toll records 
and ask the telephone company not to tell the customer, if it was a 
sensitive investigation. That has been done by every district attorney 
in America. They issue thousands of these subpoenas. Tens of thousands, 
I suggest, literally every month are issued for bank records, toll 
records every day. You have some expectation of privacy, but you don't 
have an expectation that those records will be secretly maintained by 
the bank or the telephone company when they are requested by a law 
enforcement officer for a law enforcement purpose, and relevant to an 
ongoing criminal investigation. That is the law, and it has been that 
way forever.
  So now, when asking for these records during the course of an 
investigation into terrorism, we have to certify that if the recipient 
discloses to the terrorist that we are investigating their records, it 
would endanger the national security of the United States or interfere 
with diplomatic relations. Those are extremely high standards.
  I know my colleague--and I respect him--Senator Feingold voted for 
the less restrictive certification requirements that unanimously passed 
the Senate Judiciary Committee. He was one of the 18 who voted for it. 
I don't understand an objection now to the conference report that has a 
higher certification standard. The conference report makes clear that a 
recipient of an NSL, such as a bank, can consult with their attorney 
about the NSL without worrying that the consultation would be an 
unlawful disclosure. The conference report makes clear that the bank 
can also file a motion to quash the NSL if it does not want to give the 
government the information requested, and it makes it clear that the 
bank could ask the court to quash the nondisclosure requirement and 
allow them to share that information with the customer. So really, the 
provisions in this conference report only improve the situation from 
the perspective of civil libertarians, if we reject the conference 
report these extra protections will not become law.
  Let's be frank about this. I am telling you how it works in the real 
world. I have been there. The banks simply want to be protected. If it 
is lawful for them to turn over the documents they have on a customer 
to a law enforcement agency without notifying their customers, they are 
perfectly willing to do so. But if they are told that in the law, their 
lawyers are now telling them to protect themselves by notifying 
customers that they gave their records, and they routinely do so to 
protect themselves today. They didn't used to do that 25 years ago, but 
it is because of the threat of being sued that they do that routinely 
now.
  So it is critical that they not disclose because when you are looking 
at a terrorist organization, a cell that may be plotting to bomb 
someone but you are not sure who is in it and what it is about, and you 
are trying to find out about it, maybe you want their bank records, 
maybe you want motel records, maybe you want telephone toll records. 
They can provide incredibly valuable information to an investigator. 
This can prove whether the person being investigated is connected to

[[Page 28228]]

terrorists. If you get their toll records and there are 25 phone calls 
to Yemen to somebody who has been identified by foreign intelligence as 
being connected to al-Qaida, then you have something. So that is very 
important. You may not be prepared at that moment to arrest the person. 
There may not be enough evidence to arrest them, but now you have a 
series of phone calls from a person who is a suspect in some city or 
State in this country calling a known terrorist in some other part of 
the world. You want to proceed with this investigation, but you don't 
want them to know you are on to them.
  That is so basic. Talk to investigators. This is what it is all 
about. It is not academic. This is life and death. We can't ask too 
much of our investigators. We can not tie their hands by demanding they 
prove these things beyond a reasonable doubt, and certify all these 
facts that they are looking for as true before they do an 
investigation.
  How do you get the facts? How do you get them? You have to gather the 
facts. But if we are not able to gather the facts in a terrorism 
prosecution with reasonable investigative tools, then how can we ever 
investigate a case and make a good case?
  I feel strongly that this is an incredibly important provision and, 
in fact, is more civil liberties protective now as it has come out of 
conference than it was when it went to conference.
  With regard to several other matters, I find the debate to be out of 
sync with reality.
  Let's talk about the delayed notice search warrants, the so-called 
sneak and peek. This provisions is dealing with an everyday, regular 
search warrant. These are the type of warrants you need a court to 
approve if you are going to search someone's private house or office. 
This is not the same as going to the bank and getting a record on third 
parties. This is a search warrant to get somebody's own property. You 
can't take that property without a search warrant approved by a judge, 
and if it is a Federal case, such as a terrorist case, it will be a 
Federal judge. To get that warrant, you must prove to that Federal 
judge through an affidavit by real witnesses that there is probable 
cause to believe that person possesses evidence relevant to an 
important criminal investigation.
  Senator Feingold is correct, when you get a warrant approved on 
probable cause and then conduct the search, you should do it and give 
the return on the warrant to the individual whose property has been 
searched. If for some reason they are not there, you usually tack it on 
the door so they will know you have come, and that is the traditional 
way search warrants are done.
  In the course of these kinds of investigations, I have had the 
personal experience on rare occasion to seek delayed notification, and 
I have heard of it on other occasions, I have read about situations 
where delayed notice is needed. Courts have approved through the common 
law process search warrants which they approve delaying notification to 
the person being searched. There can be many reasons, as one can 
imagine, why this delayed notice could be good. It had been done for a 
long time, long before the PATRIOT Act was passed. The U.S. Supreme 
Court has approved the procedure for delaying notice of a search.
  All the delayed notification language does in the PATRIOT Act is set 
forth standards about how delayed notice procedure should be done.
  The Senate bill, when it came out of our committee and voted on the 
floor, said you have to either to notify the defendant in 7 days that 
you did the search or come back to the judge within 7 days and ask the 
judge for more time before you notify them and set forth a reason for 
needing more time.
  The House passed bill said you could delay notification for up to 180 
days before you had to go back to the judge and ask for more time as a 
reason to delay the notification. Maybe you have gone in there and 
found they are putting material together to make a bomb, or you may 
find information that bad guys are coming into town and you need to 
wait on them, those kinds of things might justify further delaying 
notification. There may be a very delicate investigation of the most 
critical national importance. That is why delayed notice has been 
around for decades and that is why the PATRIOT Act sought to provide a 
national standard for delayed notice.
  So, the House was at 180 days, and the Senate was at 7 days, and we 
had a conference. We reached an agreement on 30 days. Well, you would 
think this is the end of the world if you believed some of my 
colleagues. If you are going to have delayed notification, how long 
should it be? Seven days is not a disaster for an investigator, 
although it is pretty tight deadline that could cause a good bit of 
problem. Thirty is much healthier, in my view. But whether it is 20 
days, 40 days, whatever, this search has to be approved by a judge 
before it can be conducted. And if the defendant is not notified 
immediately, then they have to go back and establish to the court 
through evidence and proof that the delay should continue beyond the 
time period set.
  It is not a big deal. To suggest that 7 days or 30 days is a 
difference that invokes some sort of huge constitutional principle that 
we should block this bill over and not even give it an up-or-down vote 
because of is beyond my comprehension. It is not a critical difference 
to our liberties whether it is 7 or 30 days. Some might have a 
different opinion. We had to reach a compromise. We rejected the 180 
days. We took the 30 days, which is a lot closer to 7 than 180. In my 
view, the Senate already won on this issue.
  There are a lot of other issues of the same import. I believe we have 
gone beyond the pale in criticizing this bill. It has been in effect 
for 4 years. None of it has been found to be unconstitutional. It is 
now going to be extended. It is already being curtailed by this 
conference report in a number of different ways to make the act even 
more friendly to civil liberties than it was when we first passed it. 
Nothing in the first bill, frankly, represented any reduction in any of 
our liberties, the claim that it did is simply untrue. This conference 
report has the full support of Chairman Specter and former Chairman 
Hatch. Senator Leahy voted for the reauthorization bill before. He 
voted for it in committee and then did not object to it moving by 
unanimous consent off the floor this year in the Senate.
  So now we have some that are making objections to some of the modest 
changes that were made in conference. I, frankly, think these changes 
were very minor. Our colleagues should not do that. To jeopardize the 
continuation of the tremendously valuable principles of the PATRIOT Act 
by filibustering this bill--and it will extinguish, critical parts of 
it will end soon if we do not break this filibuster and pass the 
reauthorization this week--is unthinkable to me. So I encourage my 
colleagues, please do not get upset about the conference report by 
believing the misinformation that is out there, please read and think 
carefully about what is in this bill. If they do so, they will find 
that all the provisions in it are consistent with sound constitutional 
law. All of these actions and provisions will be affirmed by the 
Supreme Court, many of them already have been, and it will be a 
tremendous advantage to our investigators who are working their hearts 
out this very day, this night, some places in this country today, 
investigating those who would do us harm.
  I will probably share some more thoughts on some of the other 
provisions tomorrow but at this time would yield the floor and in a 
moment would, on behalf of the majority leader, do a wrap-up before we 
conclude. So therefore I will not put us in a quorum call at this time.

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