[Congressional Record (Bound Edition), Volume 151 (2005), Part 22]
[Senate]
[Pages 30468-30474]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            USA PATRIOT ACT

  Mr. REID. Mr. President, the issue before this body in the waning 
days and hours of this first session of the Congress is whether the 
PATRIOT Act should be extended.
  Why are people concerned about the PATRIOT Act? Let me read an 
interview that took place, which is a condensation of a long story that 
appeared in the Washington Post about Las Vegas, NV. Barton Gellman was 
the writer of the article, and here is what he said:

       At the end of 2003 there was an . . . alert. One of the 
     reasons was a fragmentary report. . . . [At the end of 2003] 
     they tried [the Federal Government] for the first time ever 
     to create an instant real-time moving census of every tourist 
     and visitor in the city during its most visited period of the 
     year.

  Forty-four million, 50 million people come to Las Vegas every year.
  Continuing the statement of Mr. Gellman:

       They sifted through about a million people who were 
     considered potential suspects to see if they could find any 
     match with any other indicator in their big database of the 
     terrorist universe. So they used grand jury subpoenas, they 
     used national security letters and they got every hotel 
     guest, every air passenger, every person who rented a car or 
     a truck or a storage space, and they made a giant database 
     out of that and started sifting [through] it.
       In the parlance of the intelligence community, the whole 
     thing washed out. They had no suspects. There was no attack. 
     They had an undeniably important motivation here, but one of 
     the prices that the country has paid for that is that on the 
     order of a million people are now in government databases and 
     are staying there. So if you got a Las Vegas hotel room and 
     maybe if you were there with someone you ought not to have 
     been there with, what happened in Las Vegas did not stay in 
     Las Vegas.

  The question was asked:

       How can it be that four years into the Patriot Act the 
     national security letters have not been challenged in court 
     as, you know, a blatant intrusion of privacy?

  Mr. Gellman continues:

       Well, there have recently been two court cases. We know of 
     only two cases ever in which they were challenged. The 
     plaintiffs are not officially known to the public. I 
     discovered one of them. In the Connecticut library case that 
     was the lead of my story, the librarian who received a 
     national security letter was afraid to call a lawyer because 
     the letter said that he shall not disclose to any person that 
     he'd received it. But the reason there hasn't been much 
     public debate until now is because no one had any idea what 
     scale they were being used on. And crucially, people did not 
     know, even in Congress, that the great majority of these 
     letters asked for information about ordinary Americans and 
     U.S. visitors who are not suspected of any wrongdoing.

  We do not know the exact number of these letters. And ``letters'' is 
a word that is not appropriate. These ``demands.'' We know there are 
30,000. Could be more, may be less, but tens of thousands of Americans, 
just like what happened New Year's Eve in Las Vegas. That is why people 
are concerned, on a bipartisan basis, about the PATRIOT Act.

[[Page 30469]]

  The President and the Republican leadership should stop playing 
politics with the PATRIOT Act. They should join the bipartisan group of 
Senators who agree the Government can fight terrorists and protect the 
privacy and freedom of innocent Americans.
  Americans want both liberty and security. These two terms are not 
contradictory. We do not have to sacrifice our basic liberties in the 
course of strengthening national security.
  Democrats voted to support the PATRIOT Act. We voted for the original 
act in 2001. It passed with all but one Democratic vote. We voted 
unanimously for an extension of the bill in July of this year. 
Virtually every Senate Democrat has cosponsored Senator Sununu's--a 
Republican--bill to extend the act for 3 months while negotiations on a 
longer term extension continue.
  We support the act, but we want to improve it. That is what this is 
all about.
  Now, the President in his press conference today, of course, directed 
his attention to me, among others. The President, I think, talked about 
trust and credibility. So I am willing to take that at face value: 
trust and credibility. I think it should be based on liberty and 
security, but he wants to do it on trust and credibility.
  Let's take a look at this. On 9/11, we had a terrible calamity in 
this country. We responded quickly and passed the PATRIOT Act. We were 
wise, though, in setting certain sunsets; that is, if they were not 
renewed, they would expire. We did that. That was the right thing to 
do.
  We are now back, and the time has come to look at how the PATRIOT Act 
has worked. I read to the Senate what has happened with New Year's Eve 
in Las Vegas.
  Trust and credibility: The President told us there were weapons of 
mass destruction in Iraq, that there were secret meetings in Europe, 
al-Qaida training in Iraq. The Secretary of State still talks about the 
aluminum tubes. She talked about them then--yellowcake, things that 
were supposedly there so they could develop these weapons of mass 
destruction.
  Every one of these the administration either knew or should have 
known was absolutely not true. We were told that we would invade Iraq, 
and as we proceeded up these boulevards, they would be throwing 
bouquets. Well, there are 2,200 dead Americans, 17,000 wounded 
Americans, a third of them grievously wounded, missing arms and legs 
and blind and head injuries, costing the American people $2 billion a 
week.
  Ronald Reagan said: Trust but verify. And that is what this is all 
about, verifying what has gone on in the last 4 years with this PATRIOT 
Act.
  I supported the first PATRIOT Act. I do not regret my vote. I 
supported the bill that came out of the Senate Judiciary Committee 
unanimously. I supported the bill that came out of the Senate 
unanimously. But I, with other Senators, believe the PATRIOT Act as 
presently designed is not good for America.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. REID. I am happy to yield.
  Mr. DURBIN. Is the Senator from Nevada aware of the fact that the 
President said today, at his press conference:

       In a war on terror, we cannot afford to be without this law 
     [the PATRIOT Act] for a single moment.

  I ask the Senator from Nevada: Did the Senator from Nevada not ask 
unanimous consent to extend the PATRIOT Act as written for 3 months, 
and is it not true that when you made that request a few days ago, the 
Republican leader of the Senate objected to extending the PATRIOT Act 
for 3 months, after the revision of the law was held up here on the 
Senate floor?
  Mr. REID. Mr. President, I asked unanimous consent that a bipartisan 
piece of legislation extending this bill for 3 months be made 
operative. It was objected to by the Republican leader.
  The President wants to talk about trust and credibility. I think we 
need to look at that statement: Not for a single minute, not for a 
single hour should the PATRIOT Act not be in effect. Well, the burden 
of it not being in effect is solely on the shoulders of the President 
without any question. All he would have to do is pick up the phone, 
call his Republican leader in the Senate, say go ahead, 3 months, maybe 
you guys can work something out.
  This is a bipartisan piece of legislation. We support the act. We 
want to improve it. That is what this is all about. Let's be clear who 
is killing the PATRIOT Act. Yes, we killed the conference report on a 
bipartisan basis. We did the right thing for America because we believe 
that liberty and security should be part of this Government. Twice last 
week a bipartisan group of Senators tried to move forward on a 3-month 
extension but instead of joining us, the President and the Republican 
leadership decided that they would rather see the bill expire.
  Maybe the President has trouble getting away from being ``campaigner 
in chief,'' maybe not wanting to be as badly the Commander in Chief as 
he wants to be ``campaigner in chief.'' Maybe he thinks this gives him 
a political advantage. The responsibility of this bill going up or down 
is his and no one else's. It is time for the President to put politics 
aside and national security first. The President and the Republican 
leadership should join us in supporting the PATRIOT Act and protecting 
Americans. It would be irresponsible and a dereliction of duty for the 
administration to allow these provisions to expire.
  Nobody seriously believes that the expiring provisions of the PATRIOT 
Act should be allowed to lapse while this debate continues. Senator 
Specter and Senator Leahy can work this out. Democrats are not the only 
ones who believe we should improve the PATRIOT Act. Senators Sununu, 
Craig, Hagel, and Murkowski voted not to terminate debate last week. 
All four of these Republican Senators have cosponsored the bill to 
extend the act for 3 months. I have had Senators from the other side of 
the aisle come and say: That was a very close call. That was a hard 
vote for me.
  There is a bipartisan coalition of Senators wanting a 3-month 
extension of the PATRIOT Act in its current form so that we can pass a 
better bill that will have the confidence of the American people.
  Russ Feingold, the Senator from Wisconsin, one of the finest Members 
of Congress I have ever served under, a person who I believe is one of 
the consciences of the Congress, someone with an impeccable record of 
academics, a Rhodes scholar, Harvard law, he was the only person to 
vote against the PATRIOT Act the first time. He took this on during a 
campaign for reelection. Millions and millions of dollars were spent to 
try to exploit this by his Republican opponent, and it didn't work. He 
won overwhelmingly. He said at a press conference this morning:

       It is the President who wants to play chicken here. He 
     wants to have the risk taken that this would expire. All he 
     has to do is be just a little reasonable, [allow] the will of 
     the Senate. The law will be extended permanently, other than 
     certain sunset provisions. I think it's clear that the 
     president is the one who is playing politics with this.

  So says Russ Feingold. Just as Senator John McCain called the 
President's bluff on torture not being part of what America does--
rather than calling bluffs, he persuaded the President that we needed 
to check potential excesses in interrogation tactics--we also need to 
ensure that we put in place checks on the Government's power to trample 
on the privacy of innocent Americans.
  I would hope the President would put down his campaign hat and put on 
his hat that is the President of the United States, Commander in Chief, 
and recognize that legislation is the art of compromise.
  I want to first ask unanimous consent----
  Mr. GREGG. Will the Senator yield for a question?
  Mr. REID. I am happy to yield for a question to my friend.
  Mr. GREGG. If the majority or even a few Members beyond the two who 
voted for cloture had voted with the Republicans for cloture on the 
PATRIOT Act, isn't it true that the PATRIOT Act would have been on the 
floor?
  Mr. REID. I am sorry. Say that again.

[[Page 30470]]


  Mr. GREGG. If we had been allowed to go forward without cloture, 
isn't it true that the PATRIOT Act would have been on the floor, if the 
Democratic membership had voted for cloture?
  Mr. REID. The PATRIOT Act is still on the floor. Cloture was not 
invoked, so the PATRIOT Act is still in order.
  Mr. GREGG. But wouldn't we be able to complete the business of the 
PATRIOT Act if cloture had been invoked?
  Mr. REID. As I explained, and it has been talked about for some time, 
the PATRIOT Act in its present form is not something that can muster 
the parliamentary procedure to get through the Senate. As has been 
indicated, cloture was not invoked on this bill. The bill is still 
before the Senate. The reason being, a bipartisan group of Senators 
believes the bill is bad. I have given a number of reasons it is bad. 
These should be corrected. The bill in its present form is not good. 
The law that is now in effect, we have agreed that there should be a 3-
month extension on it. It is a bipartisan group of Senators who have 
agreed to that. So I say to my friend from New Hampshire, it is the 
considered opinion of this Senator that if this goes down, based on 
what the President said this morning, if this bill is not in effect for 
one day, the country can't afford that and, therefore, I think if he 
believes what he said, then he should agree to the 3-month extension.
  Mr. GREGG. If the Senator will yield for an additional question.
  Mr. REID. I am happy to yield.
  Mr. GREGG. My point was, if there had been a vote which had invoked 
cloture so that we could have completed the business of the PATRIOT 
Act, we would have a vote on final passage of the PATRIOT Act, and it 
would have been put into law because a majority of Members were for it. 
So since the Democratic leader basically led the opposition to cloture, 
therefore led the opposition to the ability to get to a final vote on 
the PATRIOT Act, it does seem to me that you are a little bit in the 
position right now like the person about 50 years ago in New Hampshire 
who shot his parents and then, when he was brought before the court on 
the murder charge, threw himself on the mercy of the court because he 
claimed he was an orphan. Are you an orphan?
  Mr. REID. I say to my friend, who usually is very analytical and 
concise, that example is pretty bad. I would also say that we could 
stand out here and say the reason we haven't finished the Defense 
appropriations bill is because there is extraneous matter put in the 
bill. If that had not been in the bill, we would be home wrapping our 
Christmas presents now. There are a lot of hypotheticals. That 
hypothetical doesn't apply. We are here in the real world. The real 
world is that cloture was defeated on the effort to cut off debate by a 
bipartisan group of Senators. There is legislation now pending that 
would take a matter of a minute to approve; that is, to approve a 3-
month extension.


                   unanimous consent request--s. 2082

  Therefore, I ask unanimous consent that the Judiciary Committee be 
discharged from further consideration of S. 2082, the 3-month extension 
of the PATRIOT Act; that the Senate proceed to its immediate 
consideration; the bill be read the third time and passed, and the 
motion to reconsider be laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. KYL. Mr. President, I object.
  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of the PATRIOT Act, as reported by the 
Judiciary Committee, S. 1389, Calendar No. 171; that the committee 
substitute be agreed to, the bill be read a third time and passed, and 
the motion to reconsider be laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. KYL. Reserving the right to object, would the minority leader 
stand for a question?
  Mr. REID. Of course.
  Mr. KYL. In the Philadelphia Inquirer, a reporter by the name of 
James Kuhnhenn has quoted the distinguished minority leader, and this 
has been out on the airwaves. I don't want people to be quoted 
inaccurately. This was according to a report of December 17, 2005, and 
this comment is attributed to the Senator from Nevada: ``We killed the 
PATRIOT Act.''
  I ask my friend, the distinguished minority leader, whether that is 
an accurate quotation of what the Senator said.
  Mr. REID. Mr. President, I stated earlier in my remarks a few minutes 
ago that it is absolutely true that the conference report on this bill 
was killed. Cloture was not invoked. I say to my friend, the Senator 
from Arizona, that is a fact. Maybe the term was the wrong term. Maybe 
I should have said defeated or whatever. But that quote is accurate, 
sure.
  Mr. KYL. I will explain why I ask the question. It was reported to me 
that in the remarks the distinguished Senator made, he said, ``Let's be 
clear about who is killing the PATRIOT Act.'' I just wanted it to be 
clear that the action taken to prevent us from getting a vote on the 
PATRIOT Act was an action, a filibuster, or not invoking cloture, and 
that action has prevented us from completing action on the PATRIOT Act, 
which means we were not able to take a final vote on it and therefore 
to reauthorize it.
  Mr. REID. Reclaiming my time, Mr. President, I appreciate the 
example----
  The PRESIDING OFFICER. Is there objection?
  Mr. KYL. Objection, Mr. President.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. Reclaiming my time, the example given by my friend, the 
distinguished Senator from New Hampshire, about killing a parent and 
claiming to be an orphan, and my friend from Arizona talking about our 
having killed the PATRIOT Act--look, everyone knows Senate procedure. 
The conference report was defeated. The ability to extend the 
conference report was made minutes after that, saying--in fact, it is 
no secret. I told the majority leader on the morning before that vote:

       You don't have enough votes to invoke cloture. Why don't 
     you extend it for 3 months?

  That wasn't done then. We offered to do that immediately after 
cloture was defeated. We offered it again today. Not only did we offer 
to extend it for 3 months, we offered to take up the bill that passed 
the Judiciary Committee and the Senate unanimously and pass it in the 
Senate unanimously.
  I think the appropriate thing to do would be to have the 3-month 
extension. Obviously, this business doesn't mean as much to the 
President as he said to the American public in his statement because it 
is up to him.
  The PATRIOT Act does not expire until the 31st day of December of 
this year.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. REID. Yes.
  Mr. DURBIN. I want to make the record clear. I was with the 
Democratic leader when he made the statement about the PATRIOT Act. I 
took it to mean that we defeated cloture on the conference report on 
the PATRIOT Act. That was the way I understood it. It has been twisted 
a little bit by some who want to read more into it. But it is accurate, 
I believe, to say that.
  I will just ask the Senator from Nevada, at least once informally 
with Senator Frist, and now four different times on the floor of the 
Senate, we have tried to extend the PATRIOT Act for 3 additional months 
while we work out our differences--an extension which would not change 
the PATRIOT Act in any way whatsoever--so that for 90 days, at least, 
it could continue to be used and enforced without question. Now we have 
had the Senator from Arizona, Mr. Kyl, object to extending the PATRIOT 
Act for 90 days.
  One could reach the conclusion that the Senator from Arizona opposes 
the PATRIOT Act as currently written if he opposes extending it for 90 
days, I might say. I am happy to allow the Senator to reply. If the 
Senator from Arizona supports the PATRIOT Act as currently written, why 
would the Senator object to extending the PATRIOT Act for 90 days?
  Mr. REID. Reclaiming my time, Mr. President. Mr. President, maybe----
  Mr. KYL. If I may ask the minority leader----

[[Page 30471]]


  Mr. REID. Mr. President, maybe I didn't have the education of a lot 
of my friends. I was educated in a little school in Searchlight, NV. We 
didn't have English class. Maybe my choice of words wasn't perfect. 
Maybe I should have said we killed the conference report. But the fact 
is, that is what we had done. People can try to change the words and 
the meaning of it all they want, but that is what happened. I may not 
have the ability to express myself like the folks who were educated in 
all these private schools and fancy schools, but I understand the 
Senate rules. Everyone knows that cloture was defeated, killed, 
whatever you want to call it. That means that cloture was defeated and 
that bill is still before the Senate.
  Any time the leader wants to bring it up again, he can do that. But 
the fact is, we have offered on numerous occasions to extend it for 3 
months. If it is not extended past December 31, 2005--as the President 
said, we have to have it every minute of every day. He should 
understand that the brunt of it not being extended is on his shoulders. 
Even the only Senator who voted against it 4 years ago said it should 
be extended. That is Russ Feingold. We have I don't know how many 
cosponsors, but a significant number who believe that could be done.
  But it appears to me that the White House and the Republican 
leadership in the House and Senate think they have a political issue. 
If they think the American people are that unable to understand, then 
they have a lot coming. The American people understand by virtue of 
this bipartisan vote that this extension should be done the right way. 
The right way is to extend it 3 months and see if the kinks can be 
worked out. Remember, the extension of the PATRIOT Act passed this body 
unanimously. It was changed in the House. They put a lot of things in 
it that should not be in it. It came back and Republicans and Democrats 
raised their arms and said: You cannot do this.
  So the fact is, if the PATRIOT Act is not extended, the whole burden 
is upon the White House and the Republican leadership in this Congress.
  Mr. KYL. Mr. President, the minority leader has the time right now; 
is that correct?
  Mr. REID. That is true.
  The PRESIDING OFFICER. He has the floor, yes.
  Mr. KYL. If the leader would like to relinquish the floor to me, I 
can respond to the Chair rather than going through the minority leader. 
Otherwise, I will go through the leader and respond to the Senator from 
Illinois that way.
  Mr. REID. I yield the floor.
  Mr. KYL. Mr. President, let me respond to the minority leader and to 
the question asked of me. The words that the minority leader used were 
``killed the PATRIOT Act.'' I don't suggest that this reflects his view 
that the PATRIOT Act should not exist. I want to be very clear about 
that, just as I am sure the question posed to me by the Senator from 
Illinois doesn't mean to suggest that my objecting to a 3-month 
extension means that I don't want the PATRIOT Act to exist. I have made 
it crystal clear in all of my comments before today that that is 
precisely what I want to see--if not the PATRIOT Act in its existing 
form, until December 31, in the modified form as developed in 
conference between the House and Senate. I think we can both agree that 
we understand that the PATRIOT Act is a good thing and indeed it is a 
good thing whether in the existing form or in the form that came out of 
conference committee.
  Let me address that for a moment. As we know, in the Senate, we 
passed it out unanimously--unanimously--and it is difficult for me to 
see why Members of the other side of the Chamber are proud of having 
filibustered it so it cannot come up--don't use the word ``killed 
it''--having prevented it from coming to a vote when, by everyone's 
agreement, about 80 percent of what the Senate passed unanimously ended 
up in the final version of the conference committee report. By 80 
percent, I mean of the contentious issues. Most of the bill was not 
contentious. There were a few provisions that were. On those, the House 
of Representatives in the conference committee conceded most of the 
ground. So, in other words, the Senate mostly got its way in that 
discussion.
  It seems to me that what the other side is basically arguing is, 
unless we get our way 100 percent, then we are not going to agree to 
this. The distinguished minority leader pointed out that everybody 
knows how the filibuster rules work. I think it is also clear everyone 
knows how the two Chambers work together. We pass our version of the 
bill, the House passes its version of the bill, there are a few items 
in disagreement, and those are compromised. It is not that one Chamber 
gets its way and the other Chamber has to concede to everything.
  What has been clear from the House of Representatives is that 3 
months, 6 months, 1 year is not going to change anything. They have 
come to the conclusion that they have already conceded more than they 
should have. Frankly, from my position, I would be of that same view.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. KYL. It seems to me that were there to be additional concessions 
made, we would no longer have a PATRIOT Act that could easily be used 
by our law enforcement and intelligence people to protect us. It would 
make it more and more difficult. As a result, you do have to draw the 
line somewhere and say: Look, if you try to change this any more, it is 
not going to protect the American people; in fact, it is going to 
prevent law enforcement and intelligence people from doing their job of 
protecting the American people.
  There does come a point in time when you have to say this is it. 
Either you are going to be for extending this or not, and that is the 
position we were in last week when the minority--a majority favored 
moving forward; I think it was 52, 53 votes. A minority said no, but 
that minority under our rules had the ability to prevent us from moving 
forward.
  I will be happy to yield for a question.
  Mr. DURBIN. I would like to ask the Senator from Arizona if he would 
consider two questions. The first question is this: Is it not true that 
the position we are arguing in the PATRIOT Act is the same position 
that the Senator from Arizona voted for in the Judiciary Committee and 
at least did not object to on the floor of the Senate? So to suggest it 
is a radical position--I would like to ask the Senator, has he changed 
his view on that?
  Mr. KYL. Let me answer that question, and I will be happy to yield 
again.
  I don't believe the Senator heard me use the words ``radical 
position.'' I have not contended anything is a radical position. What I 
have said is it would not work. We do want something that will work to 
protect the American people.
  Mr. DURBIN. If the Senator will yield, I believe it worked when I 
voted for it in the Judiciary Committee, as the Senator did, and agreed 
to in passing it unanimously on the floor. I think it still will work.
  The second question I ask the Senator is this: Here is the choice we 
have. The PATRIOT Act can expire on December 31 of this year or it can 
be extended at least 90 days by a request being made on the floor. Does 
the Senator from Arizona think it is better for the PATRIOT Act to 
expire December 31 than to extend it 90 days?
  Mr. KYL. Mr. President, let me answer the question this way: Since it 
is not at all clear, given the holidays and the fact the Senate is only 
in session at the very end of January, that we could resolve heretofore 
unresolvable issues in 90 days, how about a 1-year extension? That way, 
we would make sure the PATRIOT Act did not expire, we would have it in 
force, and whatever time it took for us to try to reach agreement, 
there would at least not be uncertainty; we would know what the law 
was. If we were able to reach agreement in the meantime, then, of 
course, we could pass the bill and whatever changes that would be made 
were made. Let me answer the question that way and perhaps not pose a 
specific

[[Page 30472]]

unanimous consent request but see what the response of the Senator from 
Illinois would be were I to do that.
  Mr. DURBIN. I say through the Chair--and I am not sure of the exact 
parliamentary form we are using here--in a question to the Senator from 
Arizona, based on his experience working in both the House and Senate, 
is it not more likely that when you say 1 year, it will be 11 months, 3 
weeks, and 6 days before we consider this seriously again? Has it not 
been his experience--it has been mine--that in this legislative body, 
if one says 90 days, it is more likely people will get serious within a 
few weeks and start talking about real change? Perhaps the Senator's 
experience is different from mine. Giving it a year means putting off 
the inevitable. Let's get this resolved and move forward.
  Mr. KYL. The Senator from Illinois certainly makes the point that 
when you have a longer deadline, work tends to be put off. I make this 
point: The distinguished chairman of the Judiciary Committee is here. 
We have been working for the better part of a year on this 
reauthorization of the PATRIOT Act. The chairman can tell us when the 
Judiciary Committee took it up. There were a lot of sessions before 
that. For many months now, this issue of reauthorization has been well 
known to all of us. We have known what the deadline was, and we worked 
on it and worked on it hard.
  I think people of good faith have reached the degree of compromise 
they believe they can reach at this point. Given the fact that most of 
the concessions were made by our House colleagues and that they have 
indicated they are not ready to make any additional concessions and 
that the President has made it clear he does not want to see the act 
degraded any further than the conference report presented to us, I 
suggest that at some point legislators need to make a decision either 
to vote yes or no and not to hide behind what is, in effect, a 
procedural vote--namely, a filibuster--and saying: We are really for 
it; that wasn't really a vote to kill it; we were just voting not to 
vote on it. When you filibuster a bill, when you vote not to vote on 
something, it is the same thing as voting against it in practical 
effect when the act expires on December 31.
  So my suggestion is that we roll up our sleeves, if you want a real 
deadline, instead of 3 months from now, we have another week. We are 
going to be here apparently until Friday. Let's conclude our work, vote 
on it, have an up-or-down vote, and see whether people really are ready 
to go into the new year without an extension of the PATRIOT Act.
  I am happy to yield the floor to the Senator from Pennsylvania.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I will pick up on comments made both by 
the Senator from Arizona and the Senator from Illinois.
  When the Senator from Illinois says if you have a 1-year extension, 
nobody will get serious about it until 11 months, 3 weeks, and 6 days, 
I agree with that. But if you have a 3-month extension, nobody will get 
serious about it until 2 months, 3 weeks, and 6 days.
  The Senator from Arizona has made the comment that we are going to be 
around here for a while. I usually like to agree with Senator Kyl, but 
I hope he is wrong about Friday, or maybe, long about Thursday, I will 
hope he was right about Friday. We may be here longer than Friday. But 
we know we have a cloture vote on Wednesday. So that means we have 2 
days, which is twice as long as the Senator from Illinois postulates if 
we have a 1-year extension. That is twice as long, 2 days, to work on 
it.
  I do not know what the House of Representatives is going to do. I 
know that Chairman Sensenbrenner has been very cooperative, but I don't 
know what his rejoinder would be. He is talking about an extension, or 
I have heard a rumor that there is talk in the House about an extension 
for 4 years. I do not know what the President is going to do. He said 
he will not sign an extension. I do not know what the majority leader 
is going to do. He said he is not going to bring it up. But I am ready, 
willing, and able to sit down with the Senator from Idaho, who is in 
the Chamber. I cosponsored his so-called SAFE Act. I am trying to work 
it out.
  We passed a good bill out of the Senate. Everybody agrees with that 
because it was unanimous. We made certain changes because we have a 
bicameral system. I am ready to sit down at 2:10, 2 minutes from now, 
or right now, and see what people have in mind.
  The distinguished ranking member at one time said that if we had a 
modification on the conclusive presumption about which he feels very 
strongly--it was the subject of a lot of floor debate--so that we did 
not have a bar that on representation by certain ranking officials, the 
national security interests or foreign diplomacy issues were 
conclusively presumed, there couldn't be disclosure, if there could be 
modification of that standard, I think we might work that out.
  That is a big point. It would be great for the country if it were to 
be seen that Republicans and Democrats get together on something, 
practically anything.
  I yield to the Senator from Idaho.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I think in the closing moments prior to the 
cloture vote and following that the Senator was very open, and I 
appreciate his willingness to come together with the House to try to 
resolve it. What is most important--and I want to say it and I want to 
say it again--for those of us who offered the SAFE Act and stood 
together, our intent was not to kill the PATRIOT Act and it never has 
been. I would hope that this process does not end up in the PATRIOT Act 
expiring without modifications of it and the reauthorization of it. The 
chairman certainly has spent a good deal of time in that effort, as 
have I and many others. His willingness now to sit down and to attempt 
to work this out, all of that is doable and can be accomplished, 
especially if the time we are now involved in, in dealing with DOD 
conference and DOD reauthorization and the budget reconciliation 
conference is going to be protracted to the extent of the rules of the 
Senate, then we do have that time more than ever.
  I would hope it is possible to come together. I do know the Justice 
Department has stated that all ongoing investigations would not be 
compromised during the period of time in which the PATRIOT Act might 
expire. That is not the point. The point is we ought to do it. We ought 
to do it appropriately, and I would hope that in the end the chairman 
would take us as close to the Senate version as we could possibly get 
because I think the work that came out of the Senate Judiciary 
Committee is what this Senate ought to vote on once again and what 
ought to become law.
  I thank the chairman for yielding and I yield the floor.
  Mr. DURBIN. Mr. President.
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SPECTER. Mr. President, I do not know if anybody is going to 
agree with the proposed change that was made on the conclusive 
presumption. It may be that it is not negotiable. I do not know. All I 
have to say is that there are a lot of people with a lot of diverse 
viewpoints, and I am prepared to sit down with anybody or everybody and 
see what those viewpoints are.
  The Senator from Arizona has been very cooperative. He has views. The 
Senator from Illinois does, the Senator from Idaho does. I am trying to 
get it worked out. On the floor, I am not prepared to say what 
concessions would be made, but as long as we are going to be around 
here, there is no harm in talking.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I am glad we are having this conversation. 
I think it shows that there is some room for dialogue and, I hope, for 
progress to be made on this issue. I think it is unfortunate some of 
these statements made earlier today by the President suggesting that 
those who did not share his point of view on this issue

[[Page 30473]]

were somehow not as sensitive to the threat of terrorism. I can assure 
the President and all listening to this debate there is sensitivity to 
that threat of terrorism on both sides of the aisle by people who were 
on both sides of that cloture vote on the PATRIOT Act.
  What is at issue are some fundamental questions about our 
constitutional rights, our freedoms, and liberties in America. Each of 
us, when we assume the responsibility of Senator, swears to uphold the 
Constitution. There are so many important elements within that 
Constitution, but one might argue that the Bill of Rights is the most 
important because it is a guarantee of our individual rights and 
freedoms. So when we initially enacted the PATRIOT Act in the fear that 
was gripping this country after 9/11, there was a concern that perhaps 
we had gone too far; perhaps we had given the Government more authority 
over our privacy, more authority over our freedom, than was necessary.
  In the bipartisan wisdom of those who wrote the act, we promised that 
4 years afterwards we would revisit it and see if, in fact, it needed 
to be changed in any respect. That is what this debate is all about.
  There may be some today who argue we should do away with the PATRIOT 
Act, but I cannot say who they might be. The only Senator who voted 
against it is supporting the reform that passed the Senate Judiciary 
Committee, so it is clear that he was prepared to vote for a PATRIOT 
Act with some modifications.
  The Senator from Idaho, Mr. Craig, and I have been the lead 
cosponsors of the SAFE Act which, as he accurately described, was an 
attempt to modify the PATRIOT Act, not to abolish it, but to modify it, 
in certain respects, so as to protect our basic freedoms and liberties. 
We were happy at the end of the debate in the Senate when the bill came 
forward in the Judiciary Committee on a unanimous, bipartisan vote, 
which I hasten to add is a rare thing in the Judiciary Committee, if 
not the Senate. A unanimous, bipartisan vote on this measure brought it 
to the floor where it was enacted by a voice vote since there was no 
objection to it on the Senate floor. That is an amazing testimony to 
the fine work of the Senator from Pennsylvania as chairman of the 
committee and all the Members who compromised to reach that point.
  It is worth noting for the record when that occurred. It occurred in 
July. It was in July that we finished our work on this and sent it over 
to the House of Representatives, understanding we were backing up 
against the deadline of December 31. It was not until November 9 of 
this year that the House appointed their conferees. They waited 3 
months or more before they appointed conferees and sat down to 
seriously debate this issue. Then a few weeks later, even with 
Thanksgiving intervening, they produced this conference report. So if 
it is a matter of timing, it does not take that long to try to work out 
differences.
  That is why those of us who are proposing a 3-month extension believe 
it is entirely appropriate and possible that we would reach an 
agreement in that short period of time.
  I would like to spend a moment reflecting on the substance of this 
debate. We have talked about the Senate procedure and timing and what 
words were spoken by Members and what they meant, but it is important 
to get down to the substance of the issue to understand that what we 
are talking about are some fairly fundamental issues.
  The first is the question of Section 215. That is a section that will 
allow the Government to obtain medical records, financial records, 
library records and other sensitive personal information simply by 
showing, under the current PATRIOT Act, that the information might be 
relevant to an authorized investigation. That is as low a standard as I 
can imagine, and it basically means that the Government, without proof 
of any wrongdoing on the part of any individual or group of 
individuals, could secure a great deal of private personal information 
and cull through it simply by saying it may be relevant to an 
authorized investigation.
  When we passed the Senate bill reauthorizing the PATRIOT Act, we said 
that it really should be a higher standard, not an impossible standard 
but a higher standard; that the person whose records are being sought 
has at least some connection to the kind of conduct we are trying to 
guard against. That is not a huge leap in terms of our legal standard 
in America. It is consistent with what we call due process.
  The second concern with Section 215 is an equally important one. 
Assume that one is the custodian administrator of records, either at a 
business or at a hospital, and they receive a notice under section 215 
of the PATRIOT Act, the Federal Government wants all of their records 
in their hospital on hundreds, if not thousands, of patients, and they 
believe that is an unwarranted intrusion into the privacy of their 
clients; what can one do if they believe the Government has gone too 
far?
  Currently, under the PATRIOT Act, they are precluded from even 
arguing their case in court, arguing that the Government has gone too 
far. And section 215 has an automatic permanent gag that prevents any 
person from speaking out, even if he believes his rights have been 
violated. In my mind, that is a fundamental attack on a very basic 
freedom in America.
  So when we wrote the revision of the PATRIOT Act in the Senate, which 
all of the Senators voted for, Democrats and Republicans, we said we 
would give a person the right to go to court and to ask that this gag 
order be lifted so that they could argue the merits of the Government's 
activities. Those are two critical issues when it comes to the rights 
of the freedoms of Americans.
  To argue that they are inconsequential, that they are not worthy of 
fight, is to ignore our basic responsibility. Many of us who are 
arguing to extend the PATRIOT Act also want to include in it some very 
fundamental protections of the rights of Americans. That is what this 
debate is about.
  It is not about who can get the upper hand on the political debate on 
a day-to-day basis. I think most Americans are weary of that. I am. 
What we are trying to do is extend the PATRIOT Act for 90 days past 
December 31 and work out these differences, significant differences but 
differences we can address and address successfully.
  It is interesting to note that this debate about the PATRIOT Act, 
which is going on on the floor of the Senate and in the President's 
press conference, is occurring at a moment in time which is freighted 
with significance in terms of the activities of this Government in 
relation to the privacy and the personal rights of its citizens.
  It was disclosed in the New York Times and Washington Post and other 
major papers last week that for several years now our Government has 
been eavesdropping on American citizens through the National Security 
Agency. This, to me, is a dramatic departure from the basic rules and 
process we followed for over 30 years in America, where we have said 
that if you want to listen in on the conversation of my neighbor or 
someone in my family, you need to have a legal right to do so and that 
legal right will be established by going to court to establish why it 
is necessary for you to listen in on that conversation; to establish, 
for example, probable cause that a crime has been committed or probable 
cause or evidence that someone has engaged in unlawful activities. That 
is the American standard. It appears now, from what the President has 
said, that this administration for several years has rejected that 
standard. The President has assumed the power to eavesdrop on the 
conversations of innocent Americans on the possibility that they will 
come up with some evidence of wrongdoing. This is not only illegal, it 
borders if not crosses the border into a violation of criminal law. It 
is extremely significant.
  In this holiday season with all the other things we are thinking 
about personally, with the rush of Congress to adjourn and go home and 
be with our families, I don't know if we are reflecting on the 
significance of what we have learned in the last several days. To think 
that any President of the United

[[Page 30474]]

States believes he has the power as Commander in Chief to basically 
avoid, ignore, or violate the laws of the land is a significant charge.
  I am encouraged that Senator Specter, the chairman of the Senate 
Judiciary Committee, a member of the President's own party, from 
Pennsylvania, has promised us a thorough investigation when we return 
in January as to what has been occurring in terms of the National 
Security Agency and this eavesdropping. But I raise this because our 
entire discussion of the PATRIOT Act is in the context of this 
consideration: Simply stated, have we gone too far in violating the 
basic rights and liberties and freedoms of Americans in our pursuit for 
security and safety? Can we strike a balance and be safe as a nation 
without endangering our basic freedoms and liberties? I think this 
question of eavesdropping on hundreds if not thousands of innocent 
Americans raises that question foursquare. But I also believe the 
extension of the PATRIOT Act does as well.
  When the Democratic leader of the Senate comes before the body twice 
today, as he did last week, and asks for an extension of time so the 
PATRIOT Act will still be in force, can still be used for 90 days while 
we work out these significant questions, it is a good-faith offer. For 
his critics--whether in the executive branch or legislative branch--to 
suggest that he wants to do away with the PATRIOT Act or he is 
insensitive to the terrorist threat is not a fair characterization of 
his position nor the position of many of us. We believe the PATRIOT Act 
is important, but we believe some modifications will make it an act 
that is more consistent with our constitutional rights.
  I hope the Republican leadership in the Senate will reconsider their 
position. I hope they will allow us to extend the PATRIOT Act for 90 
days. We can go home for the holidays and return in January, which the 
Senate Judiciary Committee is going to do, anyway, and get down to 
business, rolling up our sleeves to work out this conference committee. 
Let's make sure the PATRIOT Act is not only reenacted but in a fashion 
that is consistent with our basic freedoms.
  Mr. NELSON of Florida. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield for a question.
  Mr. NELSON of Florida. I want to again commend the Senator for 
reminding the Senate of the substance of the issue. The substance of 
the issue is that Americans are quite concerned they are going to lose 
their civil liberties. They certainly want the Government of the United 
States to in fact prosecute the war against terrorists, but they don't 
want our society, because of our protection of civil liberties, to 
change into some other kind of society. Would the Senator agree that is 
the substantial majority opinion in this country, to protect our civil 
liberties?
  Mr. DURBIN. It certainly is in my State of Illinois and I suspect 
nationwide. It is interesting to me, the passions that many of our 
colleagues bring to the fight of protecting a person's money--which is 
an important part of our job--but when it comes to protecting our 
freedoms, I don't see the same level of passionate commitment. I hope 
we will see that change during the course of this debate. But I think 
Americans value their freedoms very much.
  I always recall, as a practicing attorney, how many people would be 
dismissive of criminal procedures to protect defendants until it was 
their teenage son or daughter who was arrested and then they came to 
their attorney and said, What can we do? What does the law provide to 
protect us?
  I think we should all be sensitive to that fact.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, in a few moments--there are a few details 
being worked out in the next few seconds--we will be moving to 
hopefully get the clock started on the omnibus deficit reduction bill. 
As our colleagues know, as I outlined this morning, we have 10 hours to 
spend on that conference report. Then I know there are other 
discussions and comments that are wanted to be made about the PATRIOT 
Act. We plan on doing that using that time. A number of people have 
been waiting to speak on that.
  At this juncture, while we work out the last few remaining details, 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 that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________