[Congressional Record (Bound Edition), Volume 152 (2006), Part 2]
[Senate]
[Pages 2157-2164]
[From the U.S. Government Publishing Office, www.gpo.gov]




    USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 2271, which the clerk will report.
  The bill clerk read as follows:

       A bill (S. 2271) to clarify that individuals who receive 
     FISA orders can challenge nondisclosure requirements, that 
     individuals who receive national security letters are not 
     required to disclose the name of their attorney, that 
     libraries are not wire or electronic communication service 
     providers unless they provide specific services, and for 
     other purposes.

  Pending:

       Frist Amendment No. 2895, to establish the enactment date 
     of the Act.
       Frist Amendment No. 2896 (to Amendment No. 2895), of a 
     perfecting nature.

  The PRESIDING OFFICER. Under the previous order, the time until 12:30 
p.m. will be equally divided.
  The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I wish to speak about the USA PATRIOT Act. 
As you know, the Senate has recently agreed to another temporary 
extension of this act. We have twice since December been in a position 
of having to offer, instead of permanent reauthorization, a temporary 
fix. Yet at a time when so many in this body are continuing to talk 
about security, this one piece of legislation, in my humble opinion, 
has been more important in terms of protecting the security of the 
United States than anything else we have done since September 11.
  This critical law, which, of course, provides law enforcement 
agencies with the vital tools necessary to fight and win the war on 
terror, should not be allowed to expire. I, frankly, am at a loss to 
explain why we are spending so much time trying to get to final closure 
on this legislation when the merits of the legislation seem to be so 
obvious--primarily by providing tools to law enforcement and 
intelligence agencies of this country, tools that are already in broad 
use in other aspects of law enforcement investigations.
  Unfortunately, it seems to me that there has been a certain amount of 
hysteria whipped up over this to cause people to have unreasonable fear 
and concern about civil liberties, when, in fact, the balance between 
security and civil liberties has been struck in an entirely appropriate 
way in this legislation.
  We must make it a top priority of the Senate to reauthorize this 
legislation as soon as possible, as it would be unconscionable to 
compromise the safety of the American people and undermine the progress 
we have made since 9/11 and delay critical investigations.
  An agreement reached in December between the House and Senate 
conferees preserved the provisions of this act which have made America 
safer since 9/11 while increasing congressional and judicial oversight, 
which should alleviate the concerns of those who believe the law 
enforcement tools somehow endanger civil liberties. And even recently, 
the White House and leaders of the House and Senate have made 
additional concessions in an attempt to reach a final agreement to 
reauthorize the PATRIOT Act.
  Unfortunately, it seems that there are a few who are continuing in 
their effort to stop reauthorization of the PATRIOT Act, insisting on 
imposing their will on a bipartisan majority of the Senate, the House, 
and the President of the United States. The handful of diehards who 
continue to oppose this legislation are simply unwilling to accept the 
compromise that has been agreed to by both Houses of Congress, despite 
efforts from all quarters to try to accommodate reasonable concerns. 
Most reasonable people would agree that it is a practical impossibility 
for each legislator to get every single thing they want out of any 
particular piece of legislation, but that doesn't mean the American 
people should be left with nothing and be stripped bare of the 
protections the PATRIOT Act has been so effective at delivering.
  The art of compromise is, at times, a bitter pill, particularly when 
matters of such profound consequence as our

[[Page 2158]]

national security and waging the war on terror hang in the balance. I 
personally supported leaving sections 215, 213, and other provisions of 
the PATRIOT Act alone. I also wanted to add administrative subpoenas to 
the PATRIOT Act and to add judicial review for national security 
letters.
  I also feel very strongly about ensuring that the 9/11 Commission's 
recommendations with regard to risk-based funding for homeland security 
grant moneys are implemented and personally pushed for such a provision 
during these negotiations. Senator Specter made it clear to me that he 
would try to seek consensus but that my demands would not be met in all 
regards.
  While I did not get everything I wanted and while I believe what I 
wanted was in the best interests of my country, I support this bill. I 
am simply unwilling to return the American people to the pre-9/11 law 
enforcement tools which so poorly served our national interests at that 
time. And while this legislation is not perfect in every regard, it 
represents what I believe are the best efforts of the Congress to 
arrive at an acceptable compromise.
  The national security has been well served by the PATRIOT Act since 
its original passage in a way that is both consistent with our national 
values and the protection of civil liberties. The war on terror must be 
waged in a manner consistent with American values and American 
principles.
  The hysteria over this legislation is simply hard for me to 
understand. The fact that people in too many instances have not focused 
on the hard-fought attempts to balance our security and civil liberty 
concerns is, I believe, a disservice to the American people. This 
debate does not concern a typical policy disagreement about taxes or 
other issues; in fact, the stakes are much higher.
  The PATRIOT Act was enacted in 2001 by an overwhelming bipartisan 
margin--98 to 1 in the Senate and 357 to 66 in the House. At that time, 
Senators on both sides of the aisle agreed that this legislation struck 
a wise and careful balance between national security and civil 
liberties.
  The law, to date, has had a successful track record. In addition to 
helping prevent any terrorist attacks in this country since 9/11 and 
playing such a critical role in dismantling several terrorist cells 
within the United States, the Department of Justice inspector general 
has consistently found no systemic abuses of any of the act's 
provisions.
  I support these recent concessions that have made this bill what it 
is today--and one in particular. Before these changes, a recipient of a 
215 order seemingly could challenge the nondisclosure obligation at any 
time. The new revisions make clear that a recipient cannot challenge 
this requirement for 1 year, and it ensures that the conclusive 
presumption applies to these orders as well--something that was not 
clear before reaching this compromise agreement.
  The remaining changes seemed to me to be quite sensible; that is, 
recipients of a 215 order or a national security letter do not have to 
tell the FBI that they have or will consult an attorney or that a 
library is not an electronic or wire communications provider unless, of 
course, they happen to be such a provider.
  Prior to the PATRIOT Act, we know there were barriers that seriously 
hindered information sharing among law enforcement agencies and 
intelligence agencies, and those barriers imperiled our Nation. This 
was described by Patrick Fitzgerald in his testimony before the Senate 
Judiciary Committee. I quote:

       I was on a prosecution team in New York that began a 
     criminal investigation of Osama bin Laden in early 1996. The 
     team--prosecutors and FBI agents assigned to the criminal 
     case--had access to a number of sources. We could talk to 
     citizens. We could talk to local police officers. We could 
     talk to foreign police officers. Even foreign intelligence 
     personnel. We could talk to foreign citizens. And we did all 
     of those things as often as we could. We could even talk to 
     al-Qaida members--and we did. We actually called several 
     members and associates of al-Qaida to testify before a grand 
     jury in New York. And we even debriefed al-Qaida members 
     overseas who agreed to become cooperating witnesses. But 
     there was one group of people we were not permitted to talk 
     to. Who? The FBI agents across the street from us in lower 
     Manhattan assigned to a parallel intelligence investigation 
     of Osama bin Laden and al-Qaida. We could not learn what 
     information they had gathered. That was the wall.

  I am confident I am not the only one who is astounded at that 
statement. Consider our progress in the war on terror since the PATRIOT 
Act's enactment: Information sharing between intelligence and law 
enforcement personnel has been critical in dismantling terrorist 
operations, including the Portland Seven in Oregon, as well as a 
terrorist cell in Lackawanna, NY.
  It has helped prosecute several people involved in an al-Qaida drugs-
for-weapons scheme in San Diego, two of whom have already pleaded 
guilty.
  Furthermore, nine associates of an al-Qaida-associated Northern 
Virginia violent extremist group were convicted and sentenced to prison 
terms ranging from 4 years to life.
  Two Yemeni citizens have been charged and convicted for conspiring to 
provide material support to al-Qaida and Hamas.
  An individual has been convicted of perjury and illegally acting as 
an agent of the former Government of Iraq by a jury in January of 2004.
  And the executive director of the Illinois-based Benevolence 
International Foundation, who has had a longstanding relationship with 
Osama bin Laden, pleaded guilty to racketeering and furthermore 
admitted that he diverted thousands of dollars from his charity 
organization to support Islamic militant groups in Bosnia and Chechnya.
  These tools simply must remain available to those on the front lines 
who continue to wage the war on terror. The very safety of our Nation 
depends on it.
  I would like to share with my colleagues--and perhaps some of them 
have seen this op-ed piece--a piece written by Debra Burlingame, the 
sister of Charles F. ``Chic'' Burlingame III, the pilot of American 
Airlines flight 77 which crashed into the Pentagon on September 11, 
2001. This op-ed was originally published in the Wall Street Journal, 
and I believe it articulates precisely why this legislation must be 
reauthorized without delay.
  I will read an excerpt, and I ask unanimous consent that the complete 
op-ed be printed in the Record following my remarks.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. CORNYN. Mr. President, Ms. Burlingame writes:

       A mere four-and-a-half years after victims were forced to 
     choose between being burned alive and jumping from 90 
     stories, it is frankly shocking that there is anyone in 
     Washington who would politicize the Patriot Act. It is an 
     insult to those who died to tell the American people that the 
     organization posing the greatest threat to their liberty is 
     not al Qaeda but the FBI. Hearing any member of Congress 
     actually crow about ``killing'' or ``playing chicken'' with 
     this critical legislation is as disturbing today as it would 
     have been when Ground Zero was still smoldering. Today we 
     know in far greater detail what not having it cost us.

  She continues:

       The Senate will soon convene hearings on renewal of the 
     Patriot Act--

  And indeed we had those hearings--

     and the NSA terrorist surveillance program. A minority of 
     Senators want to gamble with American lives and ``fix'' 
     national security laws which they can't show are broken. They 
     seek to eliminate or weaken anti-terrorism measures which 
     take into account that the Cold War in its slow-moving, 
     analog world of landlines and stationary targets is gone. The 
     threat we face today is a completely new paradigm of global 
     terrorist networks operating in a high-velocity digital age 
     using the Web and fiber-optic technology. After four-and-a-
     half years without another terrorist attack, these senators 
     think we're safe enough to cave in to the same civil 
     liberties lobby that supported that deadly FISA wall in the 
     first place. What if they, like those lawyers and judges, are 
     simply wrong?
       Why should we allow enemies to annihilate us simply because 
     we lack the clarity or resolve to strike a reasonable balance 
     between a healthy skepticism of government power and the need 
     to take proactive measures to protect ourselves from such 
     threats? The mantra of civil-liberties hard-liners is to

[[Page 2159]]

     ``question authority''--even when it is coming to our 
     rescue--then blame that same authority when, hamstrung by 
     civil liberties laws, it fails to save us. . . .More 
     Americans should not die because the peace-at-any-cost fringe 
     and antigovernment paranoids still fighting the ghost of 
     Nixon hate George Bush more than they fear al Qaeda. Ask the 
     American people what they want. They will say that they want 
     the commander in chief to use all reasonable means to catch 
     the people who are trying to rain terror on our cities. Those 
     who cite the soaring principle of individual liberty do not 
     appear to appreciate that our enemies are not seeking to 
     destroy individuals, but rather whole populations.

  She concludes:

       The public has listened to years of stinging revelations 
     detailing how the government tied its own hands in stopping 
     the devastating attacks of September 11. It is an 
     irresponsible violation of the public trust for members of 
     Congress to weaken the Patriot Act or jeopardize the NSA 
     terrorist surveillance program because of the same illusory 
     theories that cost us so dearly before, or worse, for rank 
     partisan advantage. If they do, and our country sustains yet 
     another catastrophic attack that these antiterrorism tools 
     could have prevented, the phrase ``connect the dots'' will 
     resonate again--but this time it will refer to the trail of 
     innocent American blood which leads directly to the Senate 
     floor.

  I urge my colleagues to heed the words of Ms. Burlingame. And today I 
join my voice with hers and the millions of Americans who are calling 
for us to do our duty and to do our utmost to protect this country and 
the American people.
  Mr. President, I yield the floor.

                               Exhibit 1

                [From opinionjournal.com, Jan. 30, 2006]

                         Our Right to Security

                         (By Debra Burlingame)

       One of the most excruciating images of the September 11 
     attacks is the sight of a man who was trapped in one of the 
     World Trade Center towers. Stripped of his suit jacket and 
     tie and hanging on to what appears to be his office curtains, 
     he is seen trying to lower himself outside a window to the 
     floor immediately below. Frantically kicking his legs in an 
     effort to find a purchase, he loses his grip, and falls.
       That horrific scene and thousands more were the images that 
     awakened a sleeping nation on that long, brutal morning. 
     Instead of overwhelming fear or paralyzing self-doubt, the 
     attacks were met with defiance, unity and a sense of moral 
     purpose. Following the heroic example of ordinary citizens 
     who put their fellow human beings and the public good ahead 
     of themselves, the country's leaders cast aside politics and 
     personal ambition and enacted the USA Patriot Act just 45 
     days later.
       A mere four-and-a-half years after victims were forced to 
     choose between being burned alive and jumping from 90 
     stories, it is frankly shocking that there is anyone in 
     Washington who would politicize the Patriot Act. It is an 
     insult to those who died to tell the American people that the 
     organization posing the greatest threat to their liberty is 
     not al Qaeda but the FBI. Hearing any member of Congress 
     actually crow about ``killing'' or ``playing chicken'' with 
     this critical legislation is as disturbing today as it would 
     have been when Ground Zero was still smoldering. Today we 
     know in far greater detail what not having it cost us.
       Critics contend that the Patriot Act was rushed into law in 
     a moment of panic. The truth is, the policies and guidelines 
     it corrected had a long, troubled history and everybody who 
     had to deal with them knew it. The ``wall'' was a tortuous 
     set of rules promulgated by Justice Department lawyers in 
     1995 and imagined into law by the Foreign Intelligence 
     Surveillance Act (FISA) court. Conceived as an added 
     protection for civil liberties provisions already built into 
     the statute, it was the wall and its real-world ramifications 
     that hardened the failure-to-share culture between agencies, 
     allowing early information about 9/11 hijackers Khalid al-
     Mihdhar and Nawaf al-Hazmi to fall through the cracks. More 
     perversely, even after the significance of these terrorists 
     and their presence in the country was known by the FBI's 
     intelligence division, the wall prevented it from talking to 
     its own criminal division in order to hunt them down.
       Furthermore, it was the impenetrable FISA guidelines and 
     fear of provoking the FISA court's wrath if they were 
     transgressed that discouraged risk-averse FBI supervisors 
     from applying for a FISA search warrant in the Zacarias 
     Moussaoui case. The search, finally conducted on the 
     afternoon of 9/11, produced names and phone numbers of people 
     in the thick of the 9/11 plot, so many fertile clues that 
     investigators believe that at least one airplane, if not all 
     four, could have been saved.
       In 2002, FISA's appellate level Court of Review examined 
     the entire statutory scheme for issuing warrants in national 
     security investigations and declared the ``wall'' a 
     nonsensical piece of legal overkill, based neither on express 
     statutory language nor reasonable interpretation of the FISA 
     statute. The lower court's attempt to micromanage the 
     execution of national security warrants was deemed an 
     assertion of authority which neither Congress or the 
     Constitution granted it. In other words, those lawyers and 
     judges who created, implemented and so assiduously enforced 
     the FISA guidelines were wrong and the American people paid 
     dearly for it.
       Despite this history, some members of Congress contend that 
     this process-heavy court is agile enough to rule on quickly 
     needed National Security Agency (NSA) electronic surveillance 
     warrants. This is a dubious claim. Getting a FISA warrant 
     requires a multistep review involving several lawyers at 
     different offices within the Department of Justice. It can 
     take days, weeks, even months if there is a legal dispute 
     between the principals. ``Emergency'' 72-hour intercepts 
     require sign-offs by NSA lawyers and preapproval by the 
     attorney general before surveillance can be initiated. 
     Clearly, this is not conducive to what Gen. Michael Hayden, 
     principal deputy director of national intelligence, calls 
     ``hot pursuit'' of al Qaeda conversations.
       The Senate will soon convene hearings on renewal of the 
     Patriot Act and the NSA terrorist surveillance program. A 
     minority of senators want to gamble with American lives and 
     ``fix'' national security laws, which they can't show are 
     broken. They seek to eliminate or weaken anti-terrorism 
     measures which take into account that the Cold War and its 
     slow-moving, analog world of landlines and stationary targets 
     is gone. The threat we face today is a completely new 
     paradigm of global terrorist networks operating in a high-
     velocity digital age using the Web and fiber-optic 
     technology. After four-and-a-half years without another 
     terrorist attack, these senators think we're safe enough to 
     cave in to the same civil liberties lobby that supported that 
     deadly FISA wall in the first place. What if they, like those 
     lawyers and judges, are simply wrong?
       Meanwhile, the media, mouthing phrases like ``Article II 
     authority,'' ``separation of powers'' and ``right to 
     privacy,'' are presenting the issues as if politics have 
     nothing to do with what is driving the subject matter and its 
     coverage. They want us to forget four years of relentless 
     ``connect-the-dots'' reporting about the missed chances that 
     ``could have prevented 9/11.'' They have discounted the 
     relevance of references to the two 9/11 hijackers who lived 
     in San Diego. But not too long ago, the media itself reported 
     that phone records revealed that five or six of the hijackers 
     made extensive calls overseas.
       NBC News aired an ``exclusive'' story in 2004 that 
     dramatically recounted how al-Hazmi and al-Mihdhar, the San 
     Diego terrorists who would later hijack American Airlines 
     flight 77 and fly it into the Pentagon, received more than a 
     dozen calls from an al Qaeda ``switchboard'' inside Yemen 
     where al-Mihdhar's brother-in-law lived. The house received 
     calls from Osama Bin Laden and relayed them to operatives 
     around the world.
       Senior correspondent Lisa Myers told the shocking story of 
     how, ``The NSA had the actual phone number in the United 
     States that the switchboard was calling, but didn't deploy 
     that equipment, fearing it would be accused of domestic 
     spying.'' Back then, the NBC script didn't describe it as 
     ``spying on Americans.'' Instead, it was called one of the 
     ``missed opportunities that could have saved 3,000 lives.''
       Another example of opportunistic coverage concerns the 
     Patriot Act's ``library provision.'' News reports have given 
     plenty of ink and airtime to the ACLU's unsupported claims 
     that the government has abused this important records 
     provision. But how many Americans know that several of the 
     hijackers repeatedly accessed computers at public libraries 
     in New Jersey and Florida, using personal Internet accounts 
     to carry out the conspiracy? Al-Mihdhar and al-Hazmi logged 
     on four times at a college library in New Jersey where they 
     purchased airline tickets for AA 77 and later confirmed their 
     reservations on Aug. 30. In light of this, it is ridiculous 
     to suggest that the Justice Department has the time, 
     resources or interest in ``investigating the reading habits 
     of law abiding citizens.''
       We now have the ability to put remote control cameras on 
     the surface of Mars. Why should we allow enemies to 
     annihilate us simply because we lack the clarity or resolve 
     to strike a reasonable balance between a healthy skepticism 
     of government power and the need to take proactive measures 
     to protect ourselves from such threats? The mantra of civil-
     liberties hard-liners is to ``question authority''--even when 
     it is coming to our rescue--then blame that same authority 
     when, hamstrung by civil liberties laws, it fails to save us. 
     The old laws that would prevent FBI agents from stopping the 
     next al-Mihdhar and al-Hazmi were built on the bedrock of a 
     35-year history of dark, defeating mistrust. More Americans 
     should not die because the peace-at-any-cost fringe and 
     antigovernment paranoids still fighting the ghost of Nixon 
     hate George Bush more than they fear al Qaeda. Ask the 
     American people what they want. They will say that they want 
     the commander in chief to use all reasonable means to catch 
     the people who are trying to rain terror on our cities. Those 
     who

[[Page 2160]]

     cite the soaring principle of individual liberty do not 
     appear to appreciate that our enemies are not seeking to 
     destroy individuals, but whole populations.
       Three weeks before 9/11, an FBI agent with the bin Laden 
     case squad in New York learned that al-Mihdhar and al-Hazmi 
     were in this country. He pleaded with the national security 
     gatekeepers in Washington to launch a nationwide manhunt and 
     was summarily told to stand down. When the FISA Court of 
     Review tore down the wall in 2002, it included in its ruling 
     the agent's Aug. 29, 2001, email to FBI headquarters: 
     ``Whatever has happened to this--someday someone will die--
     and wall or not--the public will not understand why we were 
     not more effective and throwing every resource we had at 
     certain problems. Let's hope the National Security Law Unit 
     will stand behind their decisions then, especially since the 
     biggest threat to us now, [bin Laden], is getting the most 
     `protection.'''
       The public has listened to years of stinging revelations 
     detailing how the government tied its own hands in stopping 
     the devastating attacks of September 11. It is an 
     irresponsible violation of the public trust for members of 
     Congress to weaken the Patriot Act or jeopardize the NSA 
     terrorist surveillance program because of the same illusory 
     theories that cost us so dearly before, or worse, for rank 
     partisan advantage. If they do, and our country sustains yet 
     another catastrophic attack that these antiterrorism tools 
     could have prevented, the phrase ``connect the dots'' will 
     resonate again--but this time it will refer to the trail of 
     innocent American blood which leads directly to the Senate 
     floor.

  Mr. CORNYN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, later today we will have a cloture vote 
on S. 2271. We should not end debate on this bill, and we should not 
pass this bill. Doing so will only help implement the deeply flawed 
deal that was struck with the White House to reauthorize the PATRIOT 
Act without enacting the core civil liberties protections for which so 
many of us have fought. So I urge my colleagues to vote no on cloture.
  Everybody in this body wants to reauthorize the PATRIOT Act. Many of 
the expiring provisions are entirely noncontroversial. But we also need 
to fix the provisions that went too far, that do not contain the checks 
and balances necessary to protect our rights and freedoms. This 
reauthorization process is our chance to get it right, and moving 
forward with this bill takes us one step closer to wasting that chance.
  Back in December, 46 Senators voted against cloture on the PATRIOT 
Act conference report. I think it is clear by now that the deal makes 
only minor changes to that conference report, which remains as flawed 
today as it was 2 months ago. The Senator from Pennsylvania, the 
chairman of the Judiciary Committee and the primary proponent of the 
conference report in this body, was quoted as saying that the changes 
that the White House agreed to were ``cosmetic.'' And then he said, 
according to the AP:

       But sometimes cosmetics will make a beauty out of a beast 
     and provide enough cover for Senators to change their vote.

  Since this deal was announced, editorial pages of newspapers also 
have pointed out how minimal these changes are and have urged Senators 
not to change their votes. Let me read a few examples.
  The editorial board of the Roanoke Times in Virginia had this to say 
on February 11:

       A compromise that is expected to clear the way for the 
     law's reauthorization is a victory of fear over strength. The 
     ``compromise'' the White House and congressional leaders 
     reached this week on reauthorization of the USA PATRIOT Act 
     is a compromise of the basic freedoms that define this 
     Nation. The Bush administration has made a few minor 
     concessions, enough to give the handful of defiant Senate 
     Republicans and some of their Democratic allies cover to 
     extend the broad antiterrorism bill and claim they have done 
     what they could to protect the civil liberties of innocent 
     Americans. They have not.

  That same day from the New York Times we heard this:

       The PATRIOT Act has been one of the few issues on which 
     Congress has shown backbone lately. Last year, it refused to 
     renew expiring parts of the act until greater civil liberties 
     protections were added. But key members of the Senate have 
     now caved, agreeing to renew these provisions in exchange for 
     only minimal improvements. At a time when the public is 
     growing increasingly concerned about the lawlessness of the 
     Bush administration's domestic spying, the Senate should 
     insist that any reauthorization agreement do more to protect 
     Americans against improper secret searches.

  From my own home State, this is from the Wisconsin State Journal on 
February 18:

       In recent weeks, Senators have worked with the White House 
     to produce a compromise. However, the compromise remains far 
     short of what is required to protect Americans' civil 
     liberties. Regrettably, the Senate has backed down from its 
     earlier stand and is poised to pass the inadequate bill.

  These editorial boards and millions of Americans across the country 
recognize what everybody in this body already knows: that this deal 
makes only minor--yes, cosmetic--changes to the conference report that 
was blocked in December. The deal is woefully inadequate, and let me 
explain why.
  I start by reminding my colleagues of the context for this deal. Back 
in November and December, when so many of us were fighting for 
improvements to the conference report, we made very clear what we were 
asking for. We laid out five issues that needed to be addressed to get 
our support, and I am going to read quickly excerpts from a letter we 
sent explaining our concerns because I think it will help demonstrate 
why this deal is so bad and so inadequate. Here are the problems we 
identified and the changes we asked for several months ago.
  On section 215, we said:

       The draft conference report would allow the Government to 
     obtain sensitive personal information on a mere showing of 
     relevance. This would allow Government fishing expeditions. 
     As business groups like the U.S. Chamber of Commerce have 
     argued, the Government should be required to convince a judge 
     that the records they are seeking have some connection to a 
     suspected terrorist or spy.

  Next, we discussed gag orders, both for section 215 orders and 
national security letters:

       The draft conference report does not permit the recipient 
     of a section 215 order to challenge its automatic, permanent 
     gag order. Courts have held that similar restrictions violate 
     the First Amendment. The recipient of a section 215 order is 
     entitled to meaningful judicial review of the gag order.
       The draft conference report does not provide meaningful 
     judicial review of an NSL's gag order. It requires the court 
     to accept as conclusive the Government's assertion that a gag 
     order should not be lifted, unless the court determines the 
     Government is acting in bad faith. The recipients of NSLs are 
     entitled to meaningful judicial review of a gag order.

  We then moved on to national security letters more generally. The 
draft conference report does not sunset the NSL authority. In light of 
recent revelations about possible abuses of NSLs, the NSL provision 
should sunset in no more than 4 years when the Congress will have an 
opportunity to review the use of this power.
  Finally, we addressed sneak-and-peek search warrants. The draft 
conference report requires the Government to notify the target of a 
sneak-and-peek search no earlier than 30 days after the search rather 
than within 7 days as the Senate bill provides and as pre-PATRIOT Act 
judicial decisions required. The conference report should include a 
presumption that notice will be provided within a significantly shorter 
period in order to protect fourth amendment rights. The availability of 
additional 90-day extensions means that a shorter initial timeframe 
should not be a hardship on the Government.
  Again, these quotes are from a letter we sent late last year. Now, 
you might ask, in this newly announced deal on the PATRIOT Act, have 
any of these five problems been solved?
  The answer is no, not a single one. Only one of these issues has even 
been partially addressed by this deal, but it has not been fixed.
  This deal only makes a few small changes. First, it would permit 
judicial review of section 215 gag orders, but under conditions that 
would make it

[[Page 2161]]

very difficult for anyone to obtain meaningful judicial review. Under 
the deal, judicial review can only take place after a year has passed, 
and it can only be successful if the recipient of the section 215 order 
proves that the Government has acted in bad faith. As many have argued 
in the context of the national security letters, now that is a 
virtually impossible standard to meet. We need meaningful judicial 
review of these gag orders, not just the illusion of it.
  Second, the deal would specifically allow the Government to serve 
national security letters on libraries if the library comes within the 
current requirements of the NSL statute. This is a provision that 
appears to just restate current law. Even the American Library 
Association has called it nothing other than a fig leaf.
  Third, the deal would clarify that people who receive a national 
security letter or a section 215 order would not have to tell the FBI 
if they consult with an attorney. Now, this last change is a positive 
step, but it is only one relatively minor change. So that is what we 
are left with: one relatively minor improvement. That is nowhere near 
enough.
  Ordinarily, when we debate a flawed bill such as this one, we at 
least have the chance to improve it on the Senate floor by offering 
amendments, and I have been trying to do just that to make sure we 
don't miss the opportunity to address the core problem with the PATRIOT 
Act that so many of us have been fighting to fix. Before the recess, I 
filed four amendments to S. 2271, but I was prevented from calling them 
up because the majority leader used the procedural tactic of filling 
the amendment tree in order to prevent Senators from offering and 
getting votes on amendments. Using procedural maneuvers like this to 
prevent the Senate from debating and voting on amendments is an insult 
to the institution, and it is an insult to every one of my colleagues. 
We are being told that we have no choice but to accept the deal that a 
few Members cut with the White House, without being allowed to even try 
to change a single word.
  We do have a choice--to oppose cloture on this bill and insist that 
any deal include meaningful civil liberties protections. I don't know 
if the majority leader fears that my amendments would actually pass or 
if he just wants to protect Senators from having to explain why they 
oppose basic protections for law-abiding Americans, but that should not 
be how the Senate does its business. Offering, debating, and voting on 
amendments is what the Senate is supposed to be all about. That is how 
we are supposed to craft legislation. Trying to ram this deal through 
without a real amending process is a cynical maneuver that we should 
all reject, regardless of how we may feel about the merits of the bill.
  If my colleagues want to vote against my amendments, that is their 
right. But no one has the right to turn this body into a rubberstamp.
  Let's take a step back and consider the process that got us here 
today. As we know, conference reports are not amendable. They come to 
this body as a take-it-or-leave-it proposition. Those are the rules, 
and we all understand them and play by them. In December, we understood 
that. In December, we just said no. We said no to the PATRIOT Act 
conference report.
  Now we have a new bill, the product of a side deal with the White 
House, that is essentially an amendment to the conference report. It is 
even drafted that way. Each section of the bill amends the underlying 
law, as amended by the conference report. That is right. The bill we 
are considering today amends a law that hasn't even been passed by the 
Senate, much less signed into law. As I understand it, this bill, 
should both Houses of Congress pass it, will have to sit on the 
President's desk unsigned until the President signs the conference 
report bill into law.
  The proponents of this deal want to effectively amend the conference 
report which couldn't pass the Senate in December, even though 
conference reports are unamendable, and they want to do it by 
circumventing the regular legislative process with a bill that no one 
is being allowed to amend, even though the bill did not go through 
committee, let alone a conference. How is that fair? Why should a 
handful of members of this body be able to amend an unamendable 
conference report with a deal struck by the White House, and then 
prevent the Senate from working its will on that deal?
  How can one group of Senators amend the conference report but prevent 
other Senators from trying to do the same thing? How is that possible?
  The answer is that it is not possible unless the Senate lets it 
happen. And the vote we will have later today is the vote where we will 
find out if the Senate will let it happen.
  I hope even colleagues who may support the deal will oppose such a 
sham process. It makes no sense to agree to end debate without a 
guarantee that we will be allowed to actually try to improve the bill, 
and it is a discourtesy to all Senators, not just me, to try to ram 
through controversial legislation without the chance to improve it.
  My amendments are limited and reasonable. I spoke about them at 
length before the recess, but let me just take a few minutes to explain 
again what they would do.
  First, amendment No. 2892 would implement the standard for obtaining 
section 215 orders that was in the Senate bill that the Judiciary 
Committee approved by a vote of 18 to 0, and that was agreed to in the 
Senate without objection. This is obviously a very reasonable amendment 
that every Senator in one way or another has basically supported.
  It took hard work, but the Judiciary Committee came up with language 
on section 215 that protects innocent Americans, while also allowing 
the Government to do what it needs to do to investigate and prevent 
terrorism. The Senate standard would require the Government to convince 
a judge that a person has some connection to terrorism or espionage 
before obtaining their sensitive records.
  The Senate standard is the following: One, that the records pertain 
to a terrorist or spy; two, that the records pertain to an individual 
in contact with or known to a suspected terrorist or spy; or--and I 
emphasize ``or''--three, that the records are relevant to the 
activities of a suspected terrorist or spy. That is the standard my 
amendment would impose.
  This would not limit the types of records that the Government could 
obtain, and it does not go as far to protect law-abiding Americans as I 
might prefer, but it would make sure the Government cannot go on 
fishing expeditions into the records of innocent people.
  The conference report did away with this delicate compromise, 
replacing the three-prong test with a simple and quite broad relevance 
standard which could arguably justify the collection of all kinds of 
information about perfectly law-abiding Americans.
  Of all the concerns that have been raised about the PATRIOT Act since 
it was passed in 2001, section 215 is the one that has received the 
most public attention, and rightly so. A reauthorization bill that 
doesn't fix this provision, in my view, has no credibility.
  My second amendment is amendment No. 2893, which would ensure the 
recipients of business records orders under section 215 of the PATRIOT 
Act and also recipients of national security letters can get meaningful 
judicial review of the gag orders they are subject to.
  Under the conference report, as modified by the Sununu bill, 
recipients of these documents would theoretically have the ability to 
challenge the gag orders in court, but the standard for getting the gag 
orders overturned would be virtually impossible to meet. In order to 
prevail in challenging the NSL or section 215 gag order, the recipient 
would have to prove that any certification by the Government that 
disclosure would harm national security or impair diplomatic relations 
was made in bad faith. There would be what many have called a 
conclusive presumption that the gag order stands, unless the recipient 
can prove that the Government acted in bad faith. Again, I simply don't 
think that anyone could reasonably call this meaningful judicial 
review.

[[Page 2162]]

  My amendment would eliminate the bad faith showing currently required 
for overturning both section 215 and NSL gag orders. And it would no 
longer require recipients of section 215 orders to wait a year before 
they can challenge the accompanying gag orders, which is actually a new 
requirement in the Sununu bill.
  My third amendment, amendment No. 2891, would add to the conference 
report one additional 4-year sunset provision. It would sunset the 
national security letter authorities that were expanded by the PATRIOT 
Act. It would simply add that sunset to the already existing 4-year 
sunsets that are in the conference report with respect to section 206, 
section 215, and the so-called lone wolf provision.
  National security letters, or NSLs, are finally starting to get the 
attention they deserve. This authority was expanded by sections 358 and 
505 of the PATRIOT Act. The issue of NSLs has flown under the radar for 
years, even though many of us have been trying to bring more public 
attention to it.
  National security letters are issued by the FBI to businesses to 
obtain certain kinds of records without any--any--sort of court 
approval whatsoever. NSLs can be used to obtain three types of business 
records: subscriber and transactional information related to Internet 
and phone usage; credit reports; and financial records, a category that 
has been expanded to include records from all kinds of everyday 
businesses such as jewelers, car dealers, travel agents, and even 
casinos. This is a very broad power. I can think of no reason Congress 
would not want to place a sunset on these authorities to ensure we have 
the opportunity to take a close look at them.
  Finally, my fourth amendment, amendment No. 2894, concerns so-called 
sneak-and-peek searches, whereby the Government can secretly search 
people's houses in everyday criminal investigations and not provide 
notice of the search until afterward. The key issue here is how long 
the Government should be allowed to wait, at least in most cases, 
before it notifies individuals that their homes have been searched. The 
Senate bill said 7 days, 7 days should be the presumption, with the 
ability to get extensions if necessary, but the conference report does 
away with that and instead allows a delay of 30 days in most cases.
  My amendment would restore the key component in the Senate compromise 
by requiring that subjects of sneak-and-peek searches be notified of 
the search within 7 days unless a judge grants an extension of that 
time because there is good reason to still keep the search secret.
  It makes no other change in the conference report other than changing 
30 days to 7 days.
  Those are my amendments. They are eminently reasonable. They are 
consistent with provisions that we approved in the Senate last year or 
they were central to the concerns raised by so many Senators late last 
year. So these are obviously not extreme ideas, and the Senate should 
be allowed to vote on these four amendments. All of us have as much 
right as the Senators who struck a deal with the White House to try to 
amend the conference report.
  I am happy to report that the Senator from Pennsylvania, the chairman 
of the Judiciary Committee, thinks these are reasonable amendments, 
too. In fact, he thinks they are so reasonable that late yesterday he 
announced that he is going to combine them into a single bill and 
introduce it today and try to move it through the Judiciary Committee. 
That is right. The chairman of the Judiciary Committee, the chief 
proponent in this body of the PATRIOT Act reauthorization conference 
report and of the White House deal the Senate is being asked to ratify, 
has taken the four amendments I just described and, with a few minor 
tweaks, he has introduced them as a bill.
  I must say, I guess I am flattered and, of course, I will support 
that bill, but there is an alternative to the lengthy and uncertain 
legislative process that awaits the chairman's new bill, and that is to 
simply allow the Senate to vote on my amendments this week. The 
chairman could offer them with me. We could make a pretty powerful team 
on this issue, maybe. We have the perfect and logical vehicle for these 
amendments to the PATRIOT Act before us right now. All we need to do is 
add the chairman's reasonable proposals to this bill and send it to the 
House, where it would almost certainly pass if the leadership would 
simply allow it to be voted on.
  These provisions, most of which come right out of the bill that 
passed the Senate without objection last July, could become law in a 
matter of weeks rather than a year or more from now, if ever.
  My amendments and Senator Specter's bill are simply what the 
bipartisan group asked for back in December when we blocked the PATRIOT 
Act reauthorization conference report. Our requests were reasonable 
then, and they are reasonable now. The only reason we are considering a 
package that doesn't include them is that the White House played 
hardball, and the decision was made by some to capitulate.
  Mr. President, I oppose the flawed deal we are being asked to ratify, 
and I oppose the sham process that the Senate is facing here. We still 
have not fixed some of the most significant problems of the PATRIOT 
Act, and if we allow the conference report to go through, the 
chairman's sincere hopes notwithstanding, I fear that we will lose that 
chance for at least another 4 years. So I must oppose cloture on this 
bill, which will allow the deal to go forward.
  Before I yield the floor, let me ask one more time for unanimous 
consent to set the pending amendments aside so that I may call up 
amendment No. 2892, the amendment to modify the standard for section 
215 orders.
  The PRESIDING OFFICER. In my capacity as Senator from New Hampshire, 
I object.
  Objection is heard.
  Mr. FEINGOLD. Mr. President, that objection says it all. I urge my 
colleagues to vote no on cloture, not only because this deal is flawed 
but also because of the tactics being used to prevent votes on 
reasonable, relevant amendments--reasonable, relevant amendments that 
would improve the flawed bill we are debating.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SUNUNU. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Mr. SUNUNU. Mr. President, I want to speak briefly about the bill 
before us, a bill that I introduced and the details of which I helped 
work out over a period of 5 or 6 weeks following the delay of the 
conference report to reauthorize the PATRIOT Act at the end of last 
year.
  I recognize that this legislation, like almost any piece of 
legislation that is dealt with in Congress and in the Senate, in 
particular, represents a compromise. If you pursue every piece of 
legislation insisting that you get everything you asked for in that 
bill, in all likelihood you will never get anything you are seeking, 
and you certainly would not be able to count on the long-term support 
of others in this institution who might have requests or initiatives 
with which you might not agree. A compromise is always necessary.
  But I think in this case the legislation represents a substantial 
step forward in terms of better safeguarding our civil liberties from 
where we were with the current law and, equally important, allows us to 
lock in, to get enacted into law a number of other improvements that 
many of us worked very hard on in a bipartisan way.
  I understand that Senator Feingold doesn't support the legislation. 
That is certainly his right, his prerogative. But I think he 
shortchanges the nature of these improvements.
  I want to touch on the three elements of this bill so that all 
Senators and the public understand how these three provisions take us 
forward. Maybe the agreement represented in

[[Page 2163]]

this bill does not move us as far forward as he or I or others in the 
Senate might like, but its moves us forward nonetheless.
  First, in this bill, we create an explicit review of the gag order 
that accompanies a 215 subpoena. He has criticized the fact that there 
is a 12-month waiting period for taking that gag order before a judge.
  In our legislation, the SAFE Act, we had a 3-month waiting period. We 
asked for a 3-month waiting period, and we ended up with a 12-month 
waiting period. That is the nature of compromise, but we did get an 
explicit judicial review of the gag order. I think the principle that 
any gag order be given an opportunity for review before a judge is not 
only a step forward but a victory on principle, which is extremely 
important in this legislation, and I think it will guide us in the 
future when we might deal with similar questions.
  Second, we struck a provision in the delayed conference report that 
requires the recipient of a national security letter to disclose the 
name of their attorney to the FBI. That is a provision that doesn't 
occur anywhere else in the law. It is a provision that I think could 
have discouraged people from seeking legal advice. And in the case of a 
national security letter--a subpoena issued without the approval of a 
judge--we are not talking about a few dozen subpoenas or a few dozen 
individuals or businesses affected; we are talking about tens of 
thousands. Striking that requirement regarding the recipient of an NSL 
notifying the FBI the name of their attorney, I think, again, is a very 
important step forward not only in encouraging people to seek legal 
advice but also a very important principle to set down in this bill.
  A third improvement which was not even considered in the remarks of 
Senator Feingold is clarification that a library engaged in the 
traditional role of lending books, providing books to patrons in 
digital format, or providing access to the Internet, is not subject to 
a national security letter. This is an important clarification of 
congressional intent, an important clarification of the existing law 
which, unfortunately, is not clear on this point.
  It is not clear because the underlying law uses definitions that were 
written 20 years ago before the age of the Internet. I hope the 
Judiciary Committee will take up a full review and evaluation of the 
definitions and the standards regarding technology and the underlying 
law that is referenced here. In lieu of that, the least we can do is 
provide clarification as to how and when this law applies to 
institutions such as libraries. We have done so in a positive and 
meaningful way.
  There are two areas Senator Feingold mentioned where we had not made 
progress. I am more than willing to recognize we did not get everything 
asked for, even as we significantly improved the conference report. One 
is the standard of conclusive presumption which is a standard he does 
not support. I do not support imposing this standard of inclusive 
presumption for overturning the 215 and NSL gag orders, but the fact 
remains, as was pointed out by Chairman Specter during our original 
debate at the end of last year, that this is a standard that was in the 
Senate bill that was passed unanimously last summer. It is quite 
challenging tactically to try to negotiate out a provision that all 
Senators supported and voted for in the original Senate bill.
  The second issue is the most problematic, the one where I would like 
to have made more progress. That is in changing the standard for 
getting a 215 subpoena from one of mere relevance to terrorism 
investigation, as is the current law and the standard in the conference 
report, to having a clear connection to a suspected or known terrorist 
or foreign power. We did not succeed in getting an improvement to the 
standard itself. However, through the course of negotiations, because 
of the work done by me and Senator Feingold and others, we were able to 
get other requirements and criteria to be met by the government before 
a 215 subpoena can be issued which I will speak to in a moment.
  These three provisions, again, are significant steps forward from the 
delayed conference report. They are a step forward in the very areas 
that were raised as concerns at the end of the session. In 
conversations with Senator Feingold and Senator Craig and others after 
we defeated cloture on the conference report in December, we came back 
to the four priorities about which most of our discussions with the 
administration took place. We made progress on two of those priorities 
and added the provision clarifying the applicability of national 
security letters to libraries. That is a real success, indeed.
  It is unfortunate in this debate on the underlying bill has included 
language such as ``capitulation'' and ``caving.'' But it certainly does 
not bother me. I am very comfortable with the process we used to get 
these improvements. I am certainly very comfortable with the stand I 
took, the priorities I raised, and the end result as far as this 
reauthorization process goes. The conference report is a significant 
improvement over current law and the bill before us today is a 
significant improvement to the conference report. However, it is unfair 
to those Members who might not have had the opportunity to work 
directly on these issues in Judiciary or directly in our working group 
but feel this is a good, appropriate improvement and a good compromise, 
to suggest that they are only changing their vote for political 
reasons. There were many individuals--Democrats and Republicans--who 
were never willing to take a stand on this issue, even though they may 
have agreed with Senator Feingold, me, or others, about our concerns. 
They may have wished the issue would go away. There were some Members 
who claimed to support us but, frankly, when given the opportunity to 
weigh in with the administration or to help move the process forward, 
they chose not to.
  It is unfair to criticize those who worked with us--Democrats and 
Republicans--to push this issue forward, to make these improvements, to 
suddenly bring their motivation into question when they decide to 
support a compromise. I do not think that serves the institution of the 
Senate well, especially as we had before the recess a 93-to-6 vote to 
move forward. We have leadership on both sides of the aisle supporting 
this package. I think the ultimate vote on final passage of my bill and 
the delayed conference report will yield a very strong bipartisan 
agreement also.
  We can take issue with the level of progress that was made, we can 
take issue with the underlying substance of the original PATRIOT Act, 
the conference report, or these additional improvements, but everyone I 
have dealt with in this process has worked in a very direct, 
straightforward way. There has been a desire to find common ground, and 
in finding that common ground, to come to a consensus that allowed this 
conference report to move forward.
  In addition to the three improvements I described, we had previously 
gained improvements in a number of other areas in the conference 
report. I talked about the 215 standard and the fact we were not 
successful in changing the standard as it exists in current law. We 
were successful, though, in getting into the conference report the 
requirement that a statement of facts is provided, a statement of 
articulable facts supporting the 215 subpoena request. We now have 
minimization requirements in the conference report that require the 
Justice Department to eliminate extraneous information, information 
collected on innocent Americans, and to report to Congress exactly how 
that is done. We were successful in adding clarity to the roving 
wiretap provision so it is less likely to be abused or misused. We were 
able to improve the sneak-and-peek search warrant.
  Senator Feingold indicated we supported a 7-day notification period. 
In the bill we have a 30-day notification period. The original PATRIOT 
Act contains no specific requirement on notice other than that notice 
must be given to the subject of a search ``in a reasonable amount of 
time,'' which I think everyone would recognize leaves things to the 
whim of a prosecutor or a judge unnecessarily.

[[Page 2164]]

  We have 4-year sunsets for the most controversial provisions of this 
bill, including the 215 subpoena power, the roving wiretaps, and the 
lone wolf provisions.
  Through the work of Senator Leahy, in particular, we were able to get 
a criminal penalty for inadvertent disclosure of national security 
letters dropped from the conference report. All of these represent 
significant changes from the original act, significant changes included 
in the conference report. And in addition to the three changes in this 
underlying legislation, we have a better product and one that will 
receive strong bipartisan support.
  I look forward to passage of the bill. I was pleased to work with my 
colleagues on both sides of the aisle in getting this done. In doing 
so, in forcing us to take more time and forcing the administration to 
add additional protections for civil liberties to the legislation and 
putting together a bipartisan group willing to demand these things, we 
sent an important message, a message that we have a group willing to 
work in Congress to achieve these improvements and a message to the 
administration that when we are dealing with these issues, they need to 
be engaged and active and working toward consensus from the very 
beginning of the process.
  I yield the floor and 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. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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