[Congressional Record (Bound Edition), Volume 151 (2005), Part 22]
[Senate]
[Pages 30480-30483]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              PATRIOT ACT

  Mr. SESSIONS. Mr. President, I want to share some thoughts about the 
PATRIOT Act and the situation we find ourselves in now with this 
legislation that we passed 4 years ago that expired December 31. This 
legislation that passed the Senate by a vote of 80-something, with one 
``no'' vote, all the rest of the Senate voted for it. It was made law, 
and we agreed to reauthorize it after 4 years. We have been involved in 
that process.
  I wish to say this has not been a rushed-up deal. We have not gone 
into this without watching over it.
  We have had--I am sure some of the Members may have forgotten--a host 
of committee hearings dealing with the PATRIOT Act. In fact, the 
numbers I have is that the Senate Judiciary Committee had 13 oversight 
hearings over the PATRIOT Act. The House Judiciary Committee had 12 
oversight hearings this year alone dealing with the PATRIOT Act and our 
law enforcement against terrorism.
  For example, I have a list of the hearings we held. On November 28, 
2001, not long after the act passed, there was a hearing entitled, 
``Department of Justice Oversight: Preserving Our Freedom While 
Defending Against Terrorism,'' witness Michael Chertoff, then-Assistant 
Attorney General, Department of Justice, Chief of the Criminal 
Division. He is now the Department of Homeland Security Secretary.
  Also on that panel were William Barr, former Attorney General of the 
United States; Philip Heymann, James Barr Ames, Professor of Law at 
Harvard Law School; Griffin Bell, senior partner at King and Spalding, 
a former Attorney General of the United States under President Jimmy 
Carter; Scott Silliman, executive director of the Center of Law, Ethics 
and National Security at Duke University School of Law; Kate Martin, 
Director of the Center for National Security Studies; Neal Katyal, 
visiting professor, and Yale Law School professor of law at Georgetown 
University.
  Also, in December of 2001, another hearing: ``Department of Justice 
Oversight, Preserving Our Freedom While Defending Against Terrorism.'' 
The primary witness was Attorney General John Ashcroft.
  Oversight Hearings on Counterterrorism, June of the next year, 
witness list: Honorable Robert S. Mueller, III, Director of the Federal 
Bureau of Investigation; Honorable Glenn A. Fine, inspector general for 
the U.S. Department of Justice; Special Agent Colleen Crowley, chief 
division counsel for the FBI.
  You remember she is the one who complained they did not listen to the 
evidence she had. And in fact, she made a lot of complaints. But if you 
boil it down to the bottom, the wall that had been put up, some of the 
rules and regulations and bureaucratic situations created by existing 
law at the time of 9/11, made it difficult for information to be 
shared. That has been fixed, in large part, by the PATRIOT Act and 
other acts that were passed.
  Another one on oversight: Department of Justice with the Attorney 
General himself; then another one in September of that year, ``USA 
PATRIOT Act In Practice: Shedding Light on the FISA Process.''
  Foreign Intelligence Surveillance Act, ``Court and Process,'' had a 
hearing on all of that so your people understand it.
  The Honorable David Kris, associate counsel, Department of Justice; 
Kenneth Bass, senior counsel with Sterne Kessler; William Banks, 
professor of law at Syracuse; Morton Halperin, director of the Open 
Society Institute, a true civil libertarian, he had his day to be 
heard.
  ``Tools Against Terror'' was another hearing, ``How the 
Administration is Implementing the New Laws to Protect our Homeland''--
oversight on how these laws are being carried out; Glenn Fine, the 
inspector general, testified; Scott Hastings, associate commissioner of 
the Office of Information Resources Management; Alice Fisher, Deputy 
Assistant Attorney General; Dennis Lormel, Chief of the Financial 
Crimes Section.
  Another one: ``War Against Terror: Working Together to Protect 
America,'' Attorney General John Ashcroft; Secretary of Homeland 
Security Tom Ridge; Honorable Robert Mueller, Director of the FBI.
  We had them there to answer how we are working better with these new 
laws to protect America.
  Another one, oversight hearing: ``Law Enforcement and Terrorism,'' 
Honorable Robert Mueller, Director of the FBI; Honorable Asa 
Hutchinson, Undersecretary for Border and Transportation Security.
  Senator Hatch had a hearing in Utah with about 10 witnesses dealing 
with all of the issues related to homeland security.
  Another one: ``FBI Oversight, Terrorism and Other Topics''; ``DOJ 
Oversight: Terrorism and Other Topics''; Department of Homeland 
Security, ``Oversight, Terrorism and Other Topics.''
  The top people in Department of Justice--and that is in the Senate, 
and that does not count the Intelligence Committee that has had 
hearings, and it does not count the 12 or 13 or more hearings which the 
House Judiciary Committee has had.
  First, I want to say that we spent a great deal of time 34 years ago 
in drafting the first PATRIOT Act. How did it

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pass with only one ``no'' vote if it was an extreme act? It passed with 
such an overwhelming vote because we made a commitment from the 
beginning that we would not undermine any of the great civil liberties 
that we as Americans have come to know and respect and cherish.
  I remember asking witnesses. Somebody one time thought it was 
humorous. But I asked these witnesses: Is there anything in this 
PATRIOT Act that any court is going to declare to be unconstitutional? 
Every one of them said ``no.''
  Why did they say that? Because the techniques that we allowed 
terrorism investigators to utilize have already been approved and were 
being utilized in other aspects of law enforcement already, but they 
weren't available in an effective way for these investigators.
  If there was something that was expanded in any way, it was well 
within the principles of the law as had already been established by the 
Supreme Court of the United States. For example the roving wiretap--you 
could always get a wiretap on a specific phone of a person, and you 
have to have a big affidavit. It has to be monitored, and the judge has 
to approve it to be satisfied. You approved it in advance of that 
wiretap being effective, that you had probable cause to believe that it 
was a justified act. Those facts are reviewable. If the judge was 
wrong, all the evidence that was gained pursuant to that would be 
dismissed, would be fruit of the poisonous tree and not be admitted in 
a court of law.
  We simply said: Wait a minute, we are seeing more and more terrorists 
who travel around, use one cell phone and then another cell phone, move 
from apartment to apartment. Why not allow the courts to have an 
intercept of communications based on the phones that person may use if 
there is sufficient evidence to show that person is connected to 
terrorism and it is relevant to a terrorism investigation and it meets 
all the standard burdens of proof that have always been used in 
intercepting communications?
  I was a U.S. attorney for 12 years. In that 12 years, I think we did 
one wiretap. These are not done routinely. In a big international 
terrorism security case, a wiretap can be incredibly valuable. It is 
one thing to have a wiretap on a Mafia gang or a drug gang; it is 
another thing to need to know a terrorist group may be plotting to kill 
thousands or tens of thousands of American people. If these intercepts 
are lawful for a drug gang, for a group of white-collar criminals, for 
a Mafia group, they sure ought to be lawful for surveillance on 
terrorists.
  We made that change and set forth all the standards, and we went 
through the legislation. We worked on the exact wording, word by word 
by word, and the bill we passed in this Senate unanimously came out of 
our Senate Judiciary Committee 18 to 0 a few months ago to reauthorize 
it. It said the order must describe a specific target with 
particularity so that there could not be any confusion about which 
person for whom the intercept is permissible.
  The House bill had language they considered carefully. They came out 
with this language: ``based on specific facts provided in the 
applications.'' Then it goes to conference. We go over the House bill 
and the Senate bill and try to hammer out on agreement. Many of the 
provisions were complementary; they were approved in both bills. Where 
the provisions were in conflict, the Senate language was adopted.
  With regard to the roving wiretap multipoint wiretap provision, 
section 206 of the original PATRIOT Act, basically the Senate version 
prevailed. I will talk about that for a few minutes because we have 
Members of the Senate on the Senate Judiciary Committee who voted for 
the bill when it passed unanimously a few months ago. We have Members 
of the Senate objecting today who were part of the majority of the 
unanimous Senate that approved it who are contending there were big 
changes made in conference. These changes are why they are now opposing 
a bill that just a few days ago they were supporting.
  They should listen to the chairman of the Judiciary Committee, 
Senator Specter. Senator Specter was part and parcel of all 
negotiations. Members contended to get their own version of things. 
Frankly, some Members thought the language was not clear enough, and 
there were some difficulties for law enforcement we would like to have 
seen closed because it could have led to jeopardizing national safety. 
We held out and held out, but at the end, basically we gave in. As 
Senator Specter said, the bill that came out of conference was 80 
percent the Senate bill. The Senate prevailed time and again even 
though on some occasions I thought the House provisions were better. We 
came in and moved a bill we thought we would have bipartisan support 
for.
  For example, there was a question about sunsets, what would be made 
permanent in the bill and what would have to come up for 
reauthorization or would sunset. The Senate bill eliminated all but two 
of the PATRIOT Act sunsets--the roving wiretap and the business records 
sunset. They were extended for 4 years. We said we will go 4 more years 
with these two provisions. We extended the lone wolf provision for the 
same period in the Senate. We passed it; 4 more years for those three 
provisions.
  The House did not sunset the lone wolf provision but did sunset 
section 206 and 215, but for 10 years. They said they would be extended 
for 10 years. So we go to conference and we debate this issue. I 
thought the original agreement was we would split the difference, as is 
commonly done, and we would do it for 7 years. In fact, I signed the 
conference report at that point. I believe that is when I signed it. 
But Senator Leahy and other Members of the conference did not like it 
and held out and held out.
  We talked to Senator Specter and asked: Why are we coming back in 4 
years again? We just had a 4-year bill.
  Senator Specter said: Look, it is important to the Members. We want 
some bipartisan support, Senator Sessions. Would you support us on it 
in 3 to 4 years?
  I said: All right, we will take the 4 years, the exact Senate bill 
language.
  Senator Kyl felt strongly about this also as we discussed it.
  So we send that, thinking we made people happier and they would be 
enthusiastic supporters of a bipartisan piece of legislation important 
to protect the safety of the people of the United States of America.
  Now, here is another example of the flap, this spasm we are having 
that amounts to little or nothing: the delayed notice search warrant. 
As a person who has been involved in supervising investigations 
relating to large-scale international drug smuggling groups--not 
terrorist groups but those kinds of conspiracies--I have been made 
familiar with the difficulties of law enforcement, the burdens on law 
enforcement, the need to do things right. Our law enforcement agencies 
do things right according to the instructions they are given.
  There comes a time when it is important in an investigation to 
execute a warrant, but at the time you execute it, it is not an 
appropriate time to arrest the people involved. That happened a lot. 
Maybe it is less important in a drug case than in a terrorism case 
where people may have poisonous gas or biological weapons hidden in 
their apartment, but in a drug case this is what you come down to. The 
law allowed and has always allowed, to my knowledge, a warrant with 
specific stated facts. It could be approved, but that warrant has to be 
based upon the same factual proof we have always had, but you would 
want to ask the court to allow a search to be conducted of a house. 
Instead of immediately telling the person whose house or business or 
automobile is being searched that you searched it, you delay notifying 
them. You still have protected them from an unlawful search because you 
have gotten a lawful court order based on facts proven to a Federal 
judge. In the case of terrorism and these cases I dealt with, proof had 
to be submitted. And then you could ask the court to allow you to delay 
notifying the person who is searched for a period of time.
  This is important because otherwise you tip off the whole group, and 
they

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will scatter like a covey of quail. They will be gone. If you do not 
have everybody there at the time you do that search, then they have the 
ability to notify one another and scram, and the whole thing can go 
down in a hurry. So dealing with that complex issue is an important 
thing.
  So with regard to the delayed notice warrants, I just want to say to 
my colleagues and friends, I cannot tell you how important this is to 
our investigators, who may be out there this very moment surveilling 
some sleeper cells of terrorist groups and who need to obtain 
information that could be critically important to identifying a major 
organization.
  Maybe the individual they have information about, and for which they 
have probable cause sufficient to conduct a search warrant of their 
house, is the only name they really have, but maybe they have good 
evidence this individual is talking to a number of other persons, and 
that they may even be planning to bring a chemical or biological weapon 
or some other explosive device into the country or into that house, and 
they want to search that house, and they have proof sufficient to allow 
that to occur by presenting it to a Federal judge to get approval. But 
they do not need to tell them right then because you are trying to 
penetrate the organization and get all of them, not just one or two. 
Maybe there are 20 or 30, and maybe you only know of 1 or 2 of them, so 
you conduct these warrants, and you delay notification.
  So I want to point out that what the big difference fundamentally was 
is this: The Senate bill said the investigators who go out and conduct 
that warrant have to report back to the judge--in all of our 
legislation, they have to report back to the judge--to see what they 
did and how they did it and make an official report; they just don't 
tell the person whose house is searched. So the Senate bill said they 
should have an initial period of delay of 7 days. The House bill said 
they would have an initial period of delay of up to 180 days.
  So we went to conference, and the House said: Well, we think 180 is 
appropriate under these circumstances. These are groups, terrorist 
groups, whatever. It might be really necessary to have more time. We 
were at 7. And then you could come back and ask the judge to extend it 
under either one of the bills. So we hammered around and worked around, 
and we agreed on 30 days--much closer to the Senate bill's version, our 
version, than the House bill's version.
  So how is this some big deal? So we have Senators down here saying: 
Well, I think it is all right to have a delayed warrant for 7 days. I 
just don't want to have it for 30 days. So I think we need to get our 
act together here and try to reach some agreements and get this bill 
passed.
  But I will say this: For those of us who believe strongly this act is 
important, it should not just be seen that we are now going to come 
back and water down this bill and erode the provisions that are in it 
and not have delayed warrants, not have section 215 authority, to 
eliminate national security letters that have been part of the law for 
25 years. We cannot take these things out.
  Mr. President, I urge my colleagues to study this legislation 
carefully. Talk to the Department of Justice attorneys, call the FBI, 
if you need to. They will go over it step by step, word by word, line 
by line. As you go through that and consider the history of law 
enforcement, what is allowed to be done now, how this all occurs, you 
are going to feel so much better about it and not just react to this 
unfair choice that is presented: civil liberties or protection. We gave 
greater protection while protecting civil liberties.
  Mr. SESSIONS. Mr. President, we just go back to trying to comprehend 
the enormity of what has happened as Senator Reid, the Democratic 
leader in the Senate, had a big press conference to declare victory. He 
said:

       We killed the PATRIOT Act.

  It is not something I think is worthy of a leader of any great party 
in the Senate. It is the equivalent of the Democratic leader saying we 
have no way to win in Iraq. These are the kind of statements that are 
really contrary to what this Nation needs to do right now.
  The PATRIOT Act is an act that we passed with one dissenting vote 4 
years ago and that we passed out of this Senate unanimously and out of 
the Judiciary Committee unanimously just a few weeks ago and which has 
now come back as only a modestly modified conference report. It ought 
to be unanimously affirmed again.
  We have ended up with a filibuster led by the Democratic leader. I am 
disappointed at that. I can't comprehend why it occurred and why this 
would happen. There were a lot of contests, let me say, in the 
conference committee; a lot of hard work over every single word in the 
bill. But our version, the one we supported in a bipartisan way, was 
overwhelmingly the version that was adopted. We brought it back with 
everyone thinking we would have a great opportunity to pass it. In 
fact, some of us thought we went too far and that we had weakened law 
enforcement in ways that were not necessary.
  We tried to resist, but in the end, at the request of Senator 
Specter, in a bipartisan effort to move the bill quickly through the 
Senate, we dropped our objections and went along with that provision.
  Lo and behold, we end up with another obstructing tactic to block one 
of the most important pieces of legislation we have passed in a long 
time. At many of the hearings I mentioned before, the witnesses 
testified unequivocally that this act had made America a safer place.
  I mentioned earlier the sunsets. We have differences of agreement on 
the sunsets. The Senate version was totally adopted on the roving 
wiretaps. By far, the Senate version was adopted on the delayed notice 
search warrants. I have explained how important and critical they are. 
Just ask an FBI agent or talk to a Federal prosecutor who has worked on 
one of these cases how critically important it can be to have this 
delayed notification. The Senate version of the bill was 7 days, the 
House version 180 days, and we agreed on 30. One would have thought 
that would be the case.
  With regard to the business records, the Senate bill had a very 
troubling part to it. It had a three-part relevancy test. This test 
required the FBI, before they could obtain these records--and these are 
not records in the personal dominion of a potential defendant; these 
are records they don't control but are in the control of a bank or 
telephone company. They are not the words one says in a telephone 
message, but the telephone toll records. These are part of the records 
and have always been subject to a subpoena by law enforcement. Any 
county attorney in America can subpoena these records.
  Because we wanted to go an extra mile and deal with the question of 
immediate notification of the person whose records are being sought, we 
enhanced the requirements. So instead of issuing a subpoena, such as an 
IRS agent, without going to a U.S. attorney or without going to any 
court--an IRS agent can issue a subpoena for your income tax records to 
see if you paid your taxes. A DEA agent can get your bank records to 
determine whether a person made money selling dope. For white collar 
crime, Customs agents, there are about 200 or 300 provisions that allow 
for these kinds of records to be obtained by administrative subpoena. 
But we don't have that under section 215. They have to get a prior 
approval, and the agent has to certify it is related to a national 
security investigation. Only then are they able to get library records 
or your bookstore records.
  I don't know why they think that is just so big. Pardon me if I am 
amused a bit. A county attorney in Illinois or Idaho can issue a 
subpoena right now to the library for somebody's records. What is this 
deal? But the association raised a ruckus, so we gave them all kinds of 
enhanced protections under this bill.
  Again, the conference report went further than the Senate bill in 
many areas in the direction of civil liberties. We did have private 
briefings, secret briefings from Federal investigative agencies, and we 
learned why there

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were defects in the three-part relevancy test.
  By the way, the average district attorney in America and, I think, 
the Federal attorneys, when they issue subpoenas for records, it only 
has to be relevant to an investigation. For a U.S. attorney, it has to 
be relevant to a Federal investigation. But, oh, here we go much 
further. You have to have a three-part test to what relevancy is in 
addition to certifying it is important to national security.
  So we dealt with that problem. I thought we had reached an agreement 
in language that did not leave serious gaps in the need for records and 
ability to obtain records that law enforcement was concerned with. We 
were concerned about that, and we tried to change it, fix it. I thought 
we reached an agreement on it. I thought we went too far, but I agreed 
to sign it because we needed to do this bill. That is why I agreed to 
sign the conference report.
  Civil liberties that were not passed by the Senate or the House were 
added to the conference report at the request of Senate conferees, 
mostly Democratic conferees. So we added some items in addition.
  Under the report, the Attorney General must adopt minimization 
procedures within 180 days of enactment of the legislation; that is, he 
must create procedures that minimize any likelihood that civil 
liberties could be adversely affected. And he must submit an annual 
report to Congress which enumerates the total number of applications 
made under the act, the number granted, the number modified, the number 
denied so we can have oversight over this issue.
  Who is overseeing the county attorney? Who is overseeing the U.S. 
attorney who may be investigating a Member of Congress or the Senate or 
a Governor for tax fraud or something such as that? They are issuing 
subpoenas every day.
  This is a very responsible, fully debated, intensely discussed piece 
of legislation. It is important to the safety of our country. It is 
important that we pass it and extend this act and reauthorize it. As of 
January 1, the wall will go back up that would deny the right of the 
CIA to share foreign intelligence with the FBI that may have domestic 
intelligence and, therefore, be able to put the pieces together in a 
puzzle that will identify a criminal gang that may be intent on 
destroying large parts of our country.
  I believe that every effort has been made to assure that all the 
provisions of this act are consistent with established constitutional 
procedures. I believe not one line of it is going to be found to be 
unconstitutional. I believe it has all the protections and details that 
are necessary for good legislation.
  There are some things in it that I think hamper law enforcement more 
than necessary that have little or no relevancy to real civil liberties 
issues, but they are in there because people were concerned. People are 
concerned so we dealt with the concerns, but we do not need to weaken 
this act any more. It is time for us to pass this legislation, to 
reauthorize this act and not allow it to expire as of the end of this 
year.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank my friend from Alabama. On many 
issues, we are together, and that is as it should be. On other issues, 
we, perhaps, do not agree. But I always--I always--hold his opinions in 
great respect, great respect. I admire him. And I admire the heritage 
he brings to us from that great State of Alabama. I thank him always 
for his service.

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