[Congressional Record (Bound Edition), Volume 151 (2005), Part 21]
[Senate]
[Pages 29244-29246]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              PATRIOT ACT

  Mr. SESSIONS. Mr. President, I also say this. I am not aware of a 
single proponent of the PATRIOT Act who has accused any Member on the 
other side, or any Member who opposes the PATRIOT Act, of being 
unpatriotic. Where did that come from? I would like to search the 
Record. I would like to see that. I do not think it has occurred. I 
have not heard anybody over here say that. We say: You are wrong. We 
say you are making a mistake, that you ought to reconsider, you ought 
to study the act and see that it does not threaten our liberties, that 
it is consistent with our constitutional protections this great Nation 
provides.
  If you do not pass it, I will repeat, this legislation will lapse as 
of December 31, and it will place our Nation at greater risk. There is 
no doubt about that. I would repeat, again, it is stunningly surprising 
to me that we end up, after the bill passed here unanimously in the 
Senate, unanimously in the Judiciary Committee, and it went to 
conference with the House of Representatives. At conference, most of 
the disagreements were resolved in favor of our bill. Who has ever 
heard of a bill of this size that did not have some changes in 
conference? They were all minor. Most of the changes resulted in 
movement toward the Senate bill.
  Some of the provisions were left to be sunsetted in 4 years by the 
Senate bill. The House said they should be sunsetted in 10 years, so 
they would stay in effect for 10 years before they would have a full 
up-or-down review for reauthorization. We said 4 years. So we went to 
conference, and we thought agreement had been reached on 7 years. After 
we signed the conference report--Senator Kyl and others--we thought we 
had an agreement at 7 years. This is what we normally do in these 
deals, sort of split the difference when you can. And Senator Leahy and 
the Democratic members had a fit. No, no, no, it had to be 4 years. It 
had to be 4 years. And we argued that was not appropriate.
  Senator Kyl and I, particularly, were involved in those discussions, 
being members of the conference committee. We thought 7 years was a 
good compromise. That was the last issue to be decided, and we totally 
agreed to go to 4.
  That was the Senate version exactly. They wanted 7 as a compromise. 
The House wanted 10 in their bill. We ended up totally winning on the 
Senate position.
  There was a dispute about delayed notification warrants. The Senate 
bill that passed unanimously in the Judiciary Committee and on the 
Senate floor said the warrant that is executed, after prior approval by 
a U.S. judge who has made a specific additional finding on facts 
presented to that judge, is justified to delay notification to the 
person's residence who is being served. In those circumstances, delayed 
notification is essential because these matters are going to involve 
tremendous security and are of tremendous importance to an 
investigation of this kind. In the Senate, we decided that 
investigators should report back to the judge within 7 days. After 7 
days, you could then ask for an additional period of time before you 
notified the person whose residence had been searched.
  The House bill set the delayed notification period for 180 days. They 
said: In a terrorist investigation, you could delay notification to the 
person whose house was searched for 180 days.
  So we had a big brouhaha over that. We agreed to 30 days, which is 
far closer to the Senate version than to the House. Frankly, it didn't 
make a whole lot of difference because you have to have prior judicial 
approval to delay notice. And if you want to continue to delay notice, 
you have to prove that there is an existing continuing threat and 
danger. It is not a big deal.
  This bill is about to expire, and those are the kinds of things that 
they say are such tremendous changes that now we should not even get an 
up-or-down vote. The fact that we are going to allow this bill to 
expire and not allow it to become law, will result in the wall going 
back up between the CIA and the FBI. That makes no sense.
  Frankly, there are some things in here that worry me. One of the 
things you have to do to delay notice or to not notify someone under a 
215 order is to have an agent certify that not doing would result in a 
threat to America. It is hard to certify that. Some people think they 
will just say it anyway. They can't just say it anyway. These are 
professionals. They know what the standards are. They know that we have 
to have some proof to justify delayed notice or non-notification. The 
notification question has to be so significant that they can articulate 
and have proof that it represents a threat to somebody. I think that is 
too high a standard in these kinds of rare cases involving national 
security and the investigation of terrorism.
  There is a show on one of the cable stations right now called 
``Sleeper Cell.'' They have an undercover operative in one of these 
terrorist cells, and he meets with them. That is something you would 
love to see. One time I saw it. They had some hypothetical scene in 
which they said this was the only sleeper cell that they had ever 
penetrated. I don't know how many sleeper cells are penetrated today, 
but that is a hard thing to do. It is hard to get somebody in one of 
these closed, tightknit groups to know what they are doing. But if they 
do, they can go into the person's house. They can go wherever they are 
invited to go with the bad guys and record them if they have a 
recorder. That is perfectly legitimate under the law. But you don't 
often have that. And so how do you protect America?
  You have to have records and documents. You have to be able to obtain 
evidence. Someone says: This individual came into our neighborhood, our 
community, Mr. FBI Agent. I just heard him talking. It sounded like he 
was talking about maybe being a terrorist. He sounded like he was 
involved in terrorist talk.
  What does that agent need to do? He needs to act quickly. What would 
be one of the first things he would want to do? He is in contact with 
other terrorist groups. Is he communicating with terrorists around the 
world? How would you find that out? You don't need to tap their phones. 
All you would

[[Page 29245]]

really need to do is obtain a subpoena for telephone toll records. A 
local county district attorney can subpoena telephone toll records to 
investigate an individual on a marijuana charge. Why in the world 
couldn't an FBI agent be able to get a subpoena for these records if he 
certifies under oath that it is related to a national security matter? 
Then if you see a bunch of telephone toll records between that 
individual and a known terrorist organization somewhere, you know this 
is not just a tip, this is the real thing.
  That is what goes on in our investigative agencies today. They are 
not out there trying to snoop on your or my phone calls. They would be 
bored stiff listening to my phone calls.
  This legislation is sound. It has been carefully debated. It came out 
of the Senate 4 years ago with only one ``no'' vote. It has even more 
civil liberties protections in it now than it did then. We ought to be 
passing it. We don't need to allow this legislation to lapse.
  I am chagrined that the leadership was virtually ambushed. From out 
of nowhere comes this full-fledged filibuster led by the Democratic 
side. Yes, there were four Republicans who voted against cloture. But 
only 2 of the 45 Democrats voted to move the bill forward. It was 
basically blocked by the Democratic Party. They had the votes to block 
it.
  It is disappointing. We need not to allow this to happen. I hope my 
colleagues will review the bill, that they will think about those 
agents out there this very day trying to protect us from harm, and that 
they will consider carefully their votes. Let's move forward.
  There is some thought that we can just moderate this bill some more, 
that we will just keep on weakening the bill, and that will be the 
price to pay for passing it. I don't think this bill needs to be 
weakened. I don't think it needs to be undermined any more than it is 
right now. It is a sound piece of legislation, and I will oppose that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I rise to echo what Senator Sessions just 
said. I have tried to be involved with this detainee issue in as 
balanced a way as I can. I don't want my country to go down the road of 
adopting the tactics of our enemy. That has never been the issue. We 
have had some people who have done some bad things, and they have been 
prosecuted. But when you get editorials from major papers such as the 
New York Times saying our troops routinely abuse people, that is 
ludicrous. There have been thousands of people detained in this war. 
Some have been mistreated. We are prosecuting those people. We can do 
better, but we will do better. We are trying to get a grip on our 
policies so that we cannot only live up to who we are as a people but 
defend ourselves, too.
  This enemy knows no bounds. This enemy is a ruthless enemy. They 
train each other to allege abuse. That is part of the al-Qaida manual. 
They will say anything. We want a process to make sure that real 
allegations are dealt with honestly and that mere accusations do not 
require us to let these people go and not be able to defend ourselves.
  This editorial refers to the so-called war on terror. That is a 
mindset we need to reject. This is not a so-called war.
  I just got back from Iraq. It is a real war. Five minutes before the 
polls opened, they lobbed a shell over where we were staying. One 
marine was injured. It is a real war to him and to all the other people 
who have been wounded and to the families who have lost their loved 
ones. It is a real war to the 3,000 people killed on 9/11 and their 
families. It is a real event. We are at war.
  I am insistent that my country live up to its obligations under 
treaties, the law of armed conflict. I am equally insistent that our 
law reflect we are at war.
  Senator Sessions is a former U.S. attorney.
  We are not fighting crime here, we are fighting a war or terror. The 
PATRIOT Act is not about prosecuting people who are involved in 
criminal enterprises. The PATRIOT Act is about preventing the 
infiltration of our country by a foreign enemy who wants to blow us up 
and kill Americans.
  During World War II, the War Powers Act was passed, and that makes 
this bill look like the ACLU. There were some very strong measures 
taken after Pearl Harbor, and they worked. The Germans and Japanese 
infiltrators were caught and our country, for the most part, was not 
infiltrated. The FBI and other organizations did a marvelous job 
protecting us against ruthless enemies, the Nazis and the Japanese.
  This enemy is just as ruthless. We don't have to pick and choose 
between abandoning the rule of law and civil liberties. We don't have 
to choose between letting people go or anything goes. That is not the 
choice. The PATRIOT Act is a balance. Here is what I worry the most 
about: As we try to straighten out past mistakes, as we try to come up 
with new policies, I worry that we are slowly but surely losing the 
idea that we are at war. That is beginning to fade, and we are 
approaching this problem we face called terrorism as if it were a 
domestic criminal event. If we do that, our enemy will have 
opportunities they do not deserve. Our people will suffer.
  So count me in and sign me up for adhering to the law of armed 
conflict and for maintaining the moral high ground. But I reject an 
effort to criminalize what I think is world war III.
  I yield the floor.
  (Mr. Chambliss assumed the Chair.)
  Mr. SESSIONS. Mr. President, I will ask him to tell us how many years 
he has been a U.S. Army JAG officer. He has been so familiar with all 
these issues and has provided much leadership to it with some great 
ideas in recent weeks on some of the amendments he has offered. I think 
people need to listen to what he said about the difference between war 
and criminality.
  The President said at the beginning that we cannot treat this as 
crime; this is war. I think the Congress was all for it. We all said 
``yes.'' And now these issues arise again. I thank the Senator for 
sharing that. I had one more question I wanted to raise with him.
  Mr. GRAHAM. I appreciate the compliment. I don't want to defame the 
Army. I am in the Air Force. I have been in the Air Force as an Active-
Duty Reserve lawyer for 20-something years. By no means am I an 
international expert, but I feel as though I am going to get a master's 
degree in this type of law when this is all over. The bottom line is, I 
have a general understanding of how the law of armed conflict works 
versus domestic criminal law because that is what I used to do. That is 
what I kind of still do. I understand the difference between defensive 
measures. Keeping an enemy from infiltrating a country is a different 
need than trying to domestically control the behavior of your own 
citizens. Sometimes your own citizens jump sides and join the enemy. 
When they do that, I don't have a lot of sympathy for them. So we have 
a different task at hand.
  This is not regulating U.S. domestic criminal enterprises. This is 
trying to stop an enemy that is hell-bent on coming back. And they are 
coming. They are here. Thanks to fighting them hard, we have stopped 
them for 4 years. But it is inevitable that we are going to hit again.
  Mr. SESSIONS. Will the Senator yield for one more question?
  Mr. GRAHAM. Yes.
  Mr. SESSIONS. I was pleased to be able to join with Senator Graham 
and Senators Lieberman, Bayh, Brownback, and a number of other 
Senators, in forming a caucus or a group to treat the energy threats to 
this country as a national security threat. Now I think it is 
unfortunate--and it is a complex Senate that we are operating in 
today--that ANWR legislation will be a part of that bill. I wish it did 
not have to be, but things boiled down at the end of the session to 
that way. I would like to have the Senator share some thoughts on the 
philosophy of that bipartisan group that energy is security for our 
Nation.
  Mr. GRAHAM. I thank the Senator for the question. I think we have 
come

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to the conclusion, after $3-a-gallon gas, oil and gas prices are also 
good domestic politics because we all got our heads handed to us at 
home. Everybody is upset. If you are working in South Carolina making 
$7, $8, $10-an-hour and gas is $3 a gallon, it really hits home. What 
we came together on is trying to find a political solution to the 
domestic problem. What Senator Sessions indicated is that we came 
together on the fact that if we are this dependent as a Nation on 
Mideast oil, fossil fuels, 10 or 20 years from now, we have done our 
Nation a disservice because our national security interest is best 
served when we can be independent from forces we cannot control. We 
should, as a Nation, a long time ago have become more energy 
independent. It is a national mistake, from a security perspective, to 
have this much dependence on fossil fuels from a region that is this 
volatile. It weakens our ability as a Nation to protect ourselves.
  In that regard, some Republicans and Democrats have come up with a 
proposal to be aggressive to wean us off Mideast foreign oil because it 
really does hurt our national security interest. We should not be this 
beholden to any region of the world for everyday functions in this 
country.
  A final thought about the PATRIOT Act. Those who oppose it, I respect 
you for standing up for the American way, civil liberties. But there 
has to be a balance here. When I go to the library, I don't want to be 
bothered. Let me tell you, if there is a reason to believe somebody is 
going to the library or using everyday life in America as a tool to 
infiltrate our country and do damage, I think we have to have a balance 
because they are here. The Presiding Officer knows better than I that 
they are here. The hijackers of 9/11 had multiple driver's licenses. 
They know how to game the system. They know how to get access to our 
technology and our science. If we don't have the common sense to have a 
balanced approach to get ahead of them, and if we play this game that 
this is crime and not a war, we are going to empower them beyond what 
is reasonable.
  If we leave as a body and let this act expire because we cannot find 
common ground, then I think we have done the country a great 
disservice, and the enemy would appreciate that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. COBURN. Mr. President, parliamentary inquiry: It is my 
understanding--and I ask the Chair if this is correct--that a Presiding 
Officer, under the rules of the Senate, is not allowed to engage in 
debate other than to object to motions in his capacity from the State 
from which he comes; is that correct?
  The PRESIDING OFFICER. Under the precedent of the Senate, the 
Presiding Officer has no right to engage in conversation with Senators 
on the floor. He should not participate in debate.
  Mr. COBURN. OK.
  The PRESIDING OFFICER. However, a Senator may vote from the chair.
  Mr. COBURN. I thank the Chair. In the earlier discussion we had, it 
was stated by the minority leader that the Presiding Officer can debate 
from the chair. I did not think that was right. In fact, it is not 
correct.
  I want to wrap up with a couple of thoughts. We have had a lot of 
discussion this evening about process and precedent and keeping your 
word. As we think about what that means to our country, we ought to go 
a little further back and think about the heritage that has been given 
to this country by those who came before us. I want to characterize a 
couple points of that.
  One is doing whatever we have to do, including personal sacrifice, to 
assure opportunity and a great future for those who follow.
  It seems to me, as we get hung up on a discussion of process, that we 
ought to pay as much attention to heritage. I mean by that, we are 
having trouble passing the Labor-HHS bill. It is the first bill to come 
through this Senate in a number of years that doesn't have any earmarks 
on it. I suspect the reason people don't want to vote for it is because 
they did not get the political benefit of placing the public's dollars 
to their own political advantage.
  The other point is we hear debate that it does not supply enough. The 
real heritage that came before us is Members of this body making the 
hard choices--not easy choices, hard choices--about priorities. We are 
at such a point that this next year is going to be a very difficult 
year for us in terms of how we pay for a war, how we pay for Katrina, 
and the related items we have an obligation to pay for, and not 
diminish the opportunity and the future of our children and our 
grandchildren.
  I think we would be very wise to not put the purity of our own 
process ahead of our basic morality and ethics of maintaining the 
heritage this country has.
  I will not say any more. I know we are about to wrap up, and I 
appreciate the time.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so 
ordered.

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