[Congressional Record (Bound Edition), Volume 152 (2006), Part 2]
[Senate]
[Pages 2418-2453]
[From the U.S. Government Publishing Office, www.gpo.gov]




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

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the conference report to accompany H.R. 3199, 
which the clerk will report.
  The assistant legislative clerk read as follows:

       Conference report to accompany H.R. 3199, an act to extend 
     and modify authorities needed to combat terrorism, and for 
     other purposes.

  The PRESIDING OFFICER. Under the previous order, the time until 2:30 
p.m. shall be equally divided, with 1 hour of the time controlled by 
the minority to be under the control of the Senator from Wisconsin, Mr. 
Feingold.
  Mr. VITTER. Mr. President, I ask unanimous consent that I be 
permitted to speak as in morning business for up to 15 minutes and that 
the time be charged to the Republican side. I further ask that Senator 
Stevens be recognized at 12:15 for up to 5 minutes and Senator Byrd 
then be recognized for up to 35 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Lobbying Reform

  Mr. VITTER. Mr. President, I rise to speak on the very important 
subject of lobbying reform. When you think of our role in our 
constitutional system and how important it is that that role be held in 
high regard and confidence by the American public, this issue certainly 
takes center stage as a very important one that we need to address. 
Again, it goes to the heart of who we are and what we are about and the

[[Page 2419]]

heart of the crucial task of having the confidence of the American 
people in our system.
  Obviously, in the last year, in particular, that has been shaken--
shaken by some very real and serious scandals that have touched the 
Congress. Because of that, we need to address these issues of lobby 
reform, campaign finance reform, and other related issues very boldly 
and very directly.
  Again, why do we need to do this? For a very simple reason. This goes 
to the heart of our credibility, the heart of the central issue: Do the 
American people have confidence in our integrity, in our ability to put 
their interests ahead of the interests of narrow or special interests?
  I come to this set of issues with quite a bit of experience from 
Louisiana. These sorts of issues have been at the center of our 
political debate for quite some time because, quite frankly, we have 
fought our own challenges in terms of integrity and credibility. We 
have had a political culture and a political history riddled with 
corruption and cronyism. Many of us are working very hard to get beyond 
that. Before I came to the House of Representatives in 1999, I served 
in the Louisiana legislature. While I was there for about 7 years, 
these sorts of issues--reform issues, lobby reform, campaign finance 
reform--were at the very top of my agenda because, again, what could be 
more important than building the confidence of citizens in the 
integrity of their Government? Certainly, when I stepped into the 
Louisiana legislature in January 1992, that credibility and that 
integrity absolutely needed bolstering.
  When I first went to the legislature in 1992, we had a Governor named 
Edwin Edwards. We had an explosion of legalized gambling issues and 
legalized gambling concerns. That only fueled the need to address these 
central, ethical lobby and related issues. Issues such as the influence 
of gambling and gambling contributions came to the floor, and the 
influence of gambling entities on elected officials. Because of all 
this, I filed several formal ethics complaints against our then-
Governor, Edwin Edwards. Many of those were successful to help draw 
attention to the very real problems that were persistent. And then 
several years later, that was actually followed by Federal prosecution 
of then-former Governor Edwards on gambling-related charges, and he now 
still serves a significant sentence in Federal prison.
  Other issues came before us, such as gambling contributions. We had 
an infamous incident of the president of the State Senate handing out 
gambling contribution checks on the floor of the Senate. This caught 
everybody's attention, and the good part of the incident--the only good 
part--is that it ushered in more reform, more cleaning house, if you 
will.
  So I was very involved in those issues for exactly the same reason. 
They went to the heart of what we are about. They went to the heart of 
voters' and citizens' confidence. They went to the heart of the 
question of our integrity.
  In part, because of that background and that experience, I was very 
interested in being involved in these ethics reform and lobby reform 
efforts on Capitol Hill. Very early on, I joined the working group in 
the Senate that was focused on these important issues. The group 
consisted of Senators Santorum, McCain, Lott, Kyl, Lieberman, Obama, 
Isakson, Dodd, Feingold, and Collins. It was a very strong, very 
sincere bipartisan working group to look hard at these crucial 
questions and to come up with a strong package that could gain 
bipartisan consensus support, and that we could pass through the 
Senate.
  In working with this group, we discussed a lot of issues and tried to 
hone in on the key abuses and, therefore, the key reforms we thought we 
needed to address. That led to our releasing a statement in favor of 
meaningful lobby reform, particularly with regard to the following 
areas: The revolving door between private lobbying and public service; 
privately funded travel, which has clearly been abused in the past; 
gifts from lobbyists; improved lobbying disclosure; earmarks and the 
abuse of earmarks and the need for transparency and some limit in terms 
of those earmarks; strengthened ethics guidelines, training, and 
enforcement.
  Again, I compliment all of my fellow Senators who worked on that 
important group--Senators Santorum, McCain, Lott, Kyl, Lieberman, 
Obama, Isakson, Dodd, Feingold, and Collins. We all worked together in 
a very aggressive and sincere way. I think we have made a lot of 
headway. That headway is being exhibited this week and even more next 
week.
  This past Tuesday, the Senate Rules Committee, chaired by Senator 
Lott, voted out a consensus package of important reforms. Now, today, 
the other committee of jurisdiction, the Committee on Homeland Security 
and Governmental Affairs, chaired by Senator Collins, will take a look 
at their side of these matters--those matters in this general category 
that fall under their jurisdiction. I think they are going to come out 
today with a strong and significant package in terms of matters that 
come from their jurisdiction. Of course, as I said, Senators Lott and 
Collins were very active, very forceful, and contributing members to 
the working group.
  I look forward to supporting these two packages that will come 
together next week on the Senate floor. But as I do, I also look 
forward to strengthening the package, perhaps here on the Senate floor, 
perhaps through separate legislation, on other crucial questions, which 
I truly believe we also need to address in a bold and direct and 
forceful way to gain the confidence of the American people.
  I want to highlight three of those additional issues today. The first 
has to do with a very important matter of Indian tribe campaign 
contributions. Now, this, as everyone knows, is not some theoretical 
concern. This issue has been at the heart of the recent scandals that 
have plagued the Congress and the country with regard to lobby reform 
and campaign contributions. So this is not a theoretical or abstract 
concern.
  What is the problem? The fundamental problem, as I see it, is that 
the rules are very different and very tilted for Indian tribes, as 
opposed to other entities such as corporations. How is that true? Let 
me give you a few examples. The first is that Indian tribes are treated 
as ``persons'' under Federal campaign finance law, and because of that 
they are allowed to contribute up to $2,100 per election to a 
candidate. But they are not considered what are called ``individuals'' 
under the law. For that reason, there is no aggregate limit in terms of 
how much money they can give to Federal political campaigns overall in 
an election cycle.
  For other entities, such as corporations, there is absolutely an 
overall limit of $101,400. That is a lot of money but understand that 
tribes have no such limit, so they can go beyond that and give 
absolutely as much as they want, without limit, to Federal campaigns.
  The second area of difference I think is even more significant, and 
that is because most Indian tribes are unincorporated, they are not 
subject to any rules or ban on using corporate treasury funds to fund 
all of this or to any rules with regard to mandatory disclosure of the 
source of the funds they use and where they go. That is a huge 
difference.
  Corporate PACs, of course, have to collect money in very certain 
ways. They cannot write a check out of the corporate treasury. An 
Indian tribe can and, in doing so, doesn't have to disclose in any 
meaningful way where the money came from or where it is going.
  The second issue I want to highlight is the ability of some 
incumbents, some Members of Congress, in the House and Senate, to pay 
their spouses or dependent children for work on their own political 
campaign. Why is that a problem? It is a fundamental problem, in my 
opinion, because it gives Members of Congress the ability to increase 
their salary if they want to abuse that right to write checks to their 
own personal bank account from their campaign account by ``hiring'' a 
spouse or even a dependent child or both.
  Again, this is not a theoretical concern; this has been a practice in 
the past and is, to at least a limited extent, a practice now. There 
may be

[[Page 2420]]

some spouses or some kids who do a lot of work for that paycheck, who 
do a full day's work for a full day's paycheck. But, clearly, this is 
an area that is wide open to abuse and, in fact, in my opinion, has 
been abused in the past.
  So how do we fix it? I think it is pretty simple. I think to gain the 
confidence of the American people and to do ourselves a favor, we fix 
it in a very simple and direct way, which is by completely banning 
spouses or dependent children from being on the payroll of a Member's 
campaign or on the payroll of a Member's leadership PAC.
  The final issue that I quickly want to highlight is the issue of 
Members' spouses being able to lobby Congress. Again, I think in the 
real world, in the heartland of America, this causes average citizens 
and average voters a lot of concern. The concern, again, is obvious. A 
Member's spouse has a unique ability to lobby, No. 1. No. 2, that 
relationship, if a Member's spouse is on the payroll of a lobbying 
firm, means that the lobbying firm is writing a check, which basically 
goes directly into the family banking account of that Member.
  How do we address this? We need to be very careful to address it 
responsibly and carefully and also to take into account the fact that 
some spouses may have been a true lobbyist with true expertise, earning 
an honest day's work, before they were ever spouses of a Member of 
Congress. So I believe the way to address it is to ban that activity if 
the spouse was not a registered lobbyist a year or more before the 
Member was elected to Congress or the marriage between the spouse and 
the Member occurred.
  I think that is a responsible, fair way to address a very real 
concern, a very real issue in the hearts and minds of the American 
people.
  I close by again saying I appreciate all of the work of my fellow 
members of the working group on which I serve. I look forward to that 
legislation coming to the floor next week, and I also look forward to 
us addressing other crucial issues that may not be in that underlying 
package, such as campaign contributions of Indian tribes, such as 
spouses and dependent children being on the payrolls of campaigns, and 
such as lobbying by Member spouses.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Ensign). Who yields time? The Senator from 
Alaska.


                   Permanent Postponement of S. 1977

  Mr. STEVENS. Mr. President, I have come to the floor today to ask a 
request of the joint leadership. Last year, I introduced S. 1977 to 
repeal a provision of the 1977 reauthorization of the Marine Mammal 
Protection Act of 1972. My bill was designed to address the concerns on 
the west coast about the impact of high energy prices on their 
economies, their businesses, and their consumers.
  Upon its introduction, S. 1977 was immediately met with press 
releases condemning it. I believe the purpose of my legislation was 
deliberately misinterpreted. By repealing this provision, this bill 
would ensure that the Cherry Point refinery in the State of Washington 
could maintain its current capacity.
  The Cherry Point refinery processes 225,000 barrels of crude oil per 
day. About 60 percent of the crude oil processed at the refinery comes 
from my State of Alaska, and 70 percent of its refined product is 
consumed by businesses, vehicles, and industries located in Washington 
State.
  S. 1977 deals solely with the construction or expansion of marine 
terminals and docks in Puget Sound specifically at Cherry Point. It has 
nothing to do with the number or size of tankers in Puget Sound. The 
Coast Guard controls that through regulation. The existing provision of 
law under consideration limits the expansion of docks which is vital to 
the area's economy. If this provision is enforced, it will eventually 
reduce crude oil delivery at the Cherry Point refinery by about 10 
percent, reducing fuel capacity for the entire region by about 704,000 
gallons per day of refined product.
  My intention on introducing this legislation was to ensure stable 
supplies of fuel for the Pacific Northwest at the existing capacity. It 
would not have increased capacity at all.
  Some have litigated this issue in the press, politicized this issue, 
and leveraged it for personal political publicity. Some Washingtonians 
have appealed to me because they don't like to see a conflict between 
our State and their State. They contacted me privately and sought to 
work this out.
  In particular, one letter convinced me that despite my good 
intentions, the bill may not be the best policy for the people of 
Washington right now. But they contacted me.
  Because of my private consultation with the author of the letter, 
which I do appreciate very much, I have come to the floor to ask that 
the joint leadership institute procedures to bring about the permanent 
postponement of this legislation and indicate we will never take it up.
  It is my understanding that this is the only procedure available as 
it is not possible for me to ask to withdraw it. I have never, in my 38 
years in the Senate, asked to pull legislation or have any bill I 
introduced be permanently postponed. But that is my intention now.
  For years, I have fought for Alaska's right to determine our State's 
future and to develop our own energy resources, particularly in the 
Alaska Coastal Plain. I defer to this policy now, and I believe the 
people of Washington will have to make this decision. It is a decision 
that will have to be made. But based on the private conversations and 
the letter I mentioned, I yield to the concerns of Washingtonians on 
this legislation. I still believe S. 1977 is the right policy, but I 
respect the rights of those living in Washington State to make the 
decision as to when that policy should be pursued. Consistent with my 
personal philosophy, again I ask that the leadership find a way to 
permanently postpone consideration of S. 1977.
  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. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Appointing Conferees

  Mr. President, still another day has gone by. It is now Thursday, and 
we have been unable to appoint conferees for the pension reform bill. 
This is a shame. Up to 40 million Americans are concerned about what we 
do in the Senate. They may not wake up every morning thinking about it, 
but there are millions of Americans who are worried about their 
pensions, and they should be.
  It is so important that we get this matter to conference and come 
back with a bill that will help those 40 million Americans. We passed a 
bill out of this body on a bipartisan basis; 97 of the Senators voted 
for it. Not only was it a bipartisan vote, it was a bipartisan effort 
to get it to the floor. We need to do things on a bipartisan basis. 
This pension reform bill is an indication of how we can work together, 
but it shouldn't break down now.
  There is a dispute over whether the conference should have seven 
Republicans or eight Republicans. That is what it amounts to, whether 
it has seven Republicans going to conference or eight Republicans. 
There is a two-vote difference. Because of the majority, 55 to 45, we 
have agreed to a two-vote difference, but it is not right that we are 
not going to conference because the majority doesn't want an extra 
Senator.
  I need an extra Senator. I need 8 to 6. I have Senators who are 
heavily engaged in this matter and who have worked hard: Senator 
Kennedy, Senator Harkin, Senator Mikulski, and, of course, Senator 
Baucus who does the finance aspect of this and has worked very hard. 
Senator Rockefeller has worked hard on this. There isn't anything 
unreasonable about saying: Mr. Leader, instead of going for seven 
Republicans, go with eight, go with nine. They have already agreed to 
go with nine, they just wanted the difference to

[[Page 2421]]

be 9 to 6. They wanted a difference of three. I can't do that. I will 
go with nine. If they want nine Senators from the current seven, fine, 
I will go along with that.
  In yesterday's Congress Daily the majority said they didn't want an 
8-to-6 ratio because, ``How do you break a tie?'' I took my math 
training at Searchlight Elementary School. We had one teacher who 
taught all eight grades and it wasn't that great, I am sure. But I even 
know that really doesn't make sense. Remember, how do you break the tie 
if the vote is 8 to 6?
  We know that can't be the real reason for the delay because we know 
the majority's first proposal was 7-5. You would have to have the same 
concerns about 7-5, so that can't be the reason.
  I understand another reason for the delay could be the majority's 
insistence that they get a three-vote margin conference. We can't start 
something like that around here. There are five Republicans, and I 
understand and appreciate that. We have agreed to a two-vote margin. 
That is fair. We have never had a conference committee that I am aware 
of with a three-vote margin, certainly not in this session of Congress. 
I am hard pressed to remember that it ever happened, so that can't be 
the reason.
  So there must be something else going on. There must be pressure 
coming from people downtown, as we refer to the special interest groups 
that are interested in legislation. There must be pressure coming from 
these special interest groups to appoint particular Members to this 
conference, to ensure that they get the result they seek at the end of 
the conference. It is like fixing a jury. Sometimes you work too hard 
and you wind up with a bad result.
  I had a case once where I represented the North Las Vegas Police 
Department. They had been accused of false arrest. So we go to pick the 
jury, and the plaintiff's attorney--I was representing the defendant--
used up all their voir dire during the voir dire examination of the 
jury, and then we have a period of time after that wherein you can 
peremptorily challenge a juror. You don't have to have a reason, you 
just get rid of them. He used all of his peremptory challenges, and 
somebody stood and talked who had been a police officer. He didn't want 
that guy on the jury, but he had used up all of his challenges. He 
couldn't get rid of a juror who was a police officer, who would tend to 
side with me. He worked a little too hard in coming up with a jury that 
he thought would be OK and wound up trying too hard. So sometimes you 
try to play with the jury too long and you wind up being hurt.
  In that case, I got a defense verdict. I won the case. I don't know 
if that was the reason, but I am sure it didn't hurt me to have a 
former police officer during that jury deliberation.
  So I really don't know how to explain this deadlock. The downtown 
interests, the special interests say they obviously can't have that 
Republican or that Democrat on this conference because they don't agree 
with whomever it is on this issue.
  This bill passed the Senate by a vote of 97 affirmations. Ninety-
seven Senators said it is a good bill. This is not a Republican 
conference; it is a Senate conference. Is it going to make that much 
difference if it is 8-6 or 9-7, compared to 7-5? I don't think so.
  In the past, we would appoint conferees based strictly on seniority. 
If the majority leader doesn't want to do that, then have him pick 
based on some other principle. We will probably stick with the 
seniority rule over here, but not necessarily. There is little 
consideration of how anyone would vote. I haven't asked those I would 
like to be on the conference committee--Senator Kennedy, Senator 
Baucus, Senator Rockefeller, Senator Harkin, Senator Mikulski--how they 
are going to vote. I do know that Senator Harkin and Senator Mikulski 
both believe there should be pension reform, but they are experts in 
different areas of this very complex piece of legislation that is so 
important that we complete. We will appoint people to this conference 
and let them do what they think is right. We need to move on.
  It should not have taken 9 months to consider the bill in the first 
place, and it shouldn't take us 2 months to go to conference. Democrats 
have cooperated on this every step of the way--Senators Baucus and 
Grassley, Kennedy and Enzi--the chairman and ranking members of the 
committees. We are ready to go to conference 5 minutes from now. If the 
majority leader walked through these doors and said: I move that we go 
to conference, the ratio will be 8-6, 9-7, it is done. They could start 
meeting today. We are not delaying this legislation.
  I don't understand all the reasons that we are not going forward with 
the conference, but I have to tell you, it looks somewhat suspicious to 
me when they are saying, instead of having seven Republican Senators, 
we want eight, for some reason. That is wrong. We need to stop playing 
around with this. Up to 40 million Americans, I repeat, are counting on 
us to do this the right way and to do it quickly.
  Mr. President, I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The 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.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that I be 
recognized at 2:15 p.m. for up to 15 minutes to make some final remarks 
on this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, yesterday the Senate took further steps 
to reauthorize the PATRIOT Act without the fundamental checks and 
balances that so many of us believe are needed. To bring us back to 
first principles, I read aloud the Constitution and the Bill of Rights. 
And to remind us of the broad, bipartisan support for amending the 
PATRIOT Act all over this country, I read the eight statewide 
resolutions that have passed in the last few years expressing concerns 
about the PATRIOT Act. I also read some of the nearly 400 local 
resolutions that have passed--the four resolutions from my own State of 
Wisconsin. Today I want to continue by reading some additional items to 
take my colleagues back to how hard we fought in November and December 
to stop the flawed conference report, and how many Americans wanted us 
to do better than we have done this week.
  Let me start with a few editorials. The resolutions passed by State 
and city governments that I read here on the floor yesterday are not 
the only way by which Americans have expressed their concerns about the 
PATRIOT Act. The Fourth Estate has weighed in too, with many newspapers 
running editorials or columns criticizing the PATRIOT Act's effect on 
Americans' freedom. And not just a few newspapers, but dozens and 
dozens, from all across the United States. From major national 
newspapers to small, local newspapers. Papers in big cities and small 
towns. All concerned about the erosion of civil liberties under the 
PATRIOT Act. I am going to read just a few representative editorials.
  From the Orlando Sentinel, August 17, 2005; headline: Fighting the 
terrorists.

       Our position: Patriot Act changes need to be tough but 
     protect against abuse of power.
       The U.S. House and Senate have taken different approaches 
     to renewing the USA Patriot Act, the sweeping anti-terrorism 
     law that otherwise would expire at year's end. The Senate's 
     more thoughtful, bipartisan approach deserves to prevail when 
     members begin meeting next month to reconcile their competing 
     proposals.
       The House proposal leaves the Patriot Act's expanded 
     surveillance and law-enforcement powers largely intact. It 
     does not accommodate legitimate concerns raised by both 
     liberals and conservatives about inadequate checks on those 
     powers.
       The Senate proposal, passed unanimously, includes what 
     Judiciary Chairman Arlen Specter called ``responsible changes 
     to safeguard civil liberties.'' It would continue to let the 
     government obtain secret court orders to seize medical, 
     financial, library and

[[Page 2422]]

     other records, but only records tied to suspected terrorists 
     or spies, or people in contact with them. It would require 
     the government to notify targets of secret search warrants 
     after seven days, though a judge could extend that deadline.
       Also under the Senate proposal, two of the most 
     controversial Patriot Act provisions--to seize records 
     secretly and conduct roving wiretaps--would expire in 2009 
     unless renewed. That would encourage Congress to re-evaluate 
     those provisions in four years.
       The Senate proposal would not stop the government from 
     using the powers in the Patriot Act to go after terrorists. 
     But its changes would better protect ordinary Americans from 
     possible abuse of those powers.

  Next, The Los Angeles Times; editorial, ``Checks on the Patriot 
Act,'' from November 21, 2005.

       The Patriot Act, a 4-year-old federal law that gave 
     investigators unprecedented power to search for and chase 
     terrorists, is a case study in bad lawmaking. Angry and 
     anxious to respond to the atrocities of 9/11, Congress 
     hastily approved a measure that exposed an indeterminable 
     number of Americans to unreasonable searches and intrusive 
     snooping for the sake of the war on terror. The law provided 
     few of the legal system's usual checks to protect against 
     investigators abusing the new capabilities.
       The measure eventually generated outrage on both sides of 
     the political spectrum, as well as from corporations, 
     libraries and retailers forced to report secretly on the 
     activities of employees and customers. Nevertheless, in their 
     haste to wrap up business before the Thanksgiving recess, 
     lawmakers were poised last week to reauthorize the Patriot 
     Act, which is due to expire at the end of the year, with only 
     minor changes.
       That was the outcome sought by the White House and its 
     allies in the House. A bipartisan group of six senators 
     stopped the bill, however, by threatening a filibuster. They 
     demanded that House and Senate negotiators produce a 
     reauthorization bill with more of the safeguards that the 
     Senate had approved earlier this year.
       The senators' demands are modest, recognizing that law 
     enforcement agencies do need enhanced powers to battle 
     elusive and technologically sophisticated groups of 
     terrorists. But the public also needs to be able to review 
     how those powers have been used. And people need more 
     assurance that the information vacuumed up by their 
     government is actually connected to a suspected terrorist or 
     spy.
       In particular, the bill should do away with the automatic, 
     permanent gag orders that allow investigators to hide forever 
     their demands for records from banks, libraries, doctors and 
     other sources. And the most controversial provisions of the 
     Patriot Act should be extended for a much shorter period than 
     the seven years suggested by House and Senate conferees.
       When Congress approved the Patriot Act, it put its trust in 
     prosecutors and investigators to use their expanded powers 
     responsibly. It now appears that trust was misplaced. 
     Authorities have gone on a snooping frenzy since 2001, 
     issuing more than 30,000 secret demands for records per year, 
     according to the Washington Post. And unless the law is 
     changed, no one will ever know whether those records should 
     have been gathered, or what has been done with them.
       Americans want to trust their government. It is their 
     government's foundation, its system of checks and balances, 
     that enables that trust.

  Now, from The Pittsburgh Post-Gazette, entitled, ``True patriots: 
Some in Congress won't let terror limit freedom,'' from November 30, 
2005.

       Long before the 9/11 terrorist attacks and the so-called 
     Patriot Act that was passed in reaction and fear, a man with 
     stellar patriotic credentials who championed the cause of 
     liberty had words of wisdom for his fellow Americans: ``They 
     that can give up essential liberty to obtain a little 
     temporary safety deserve neither liberty nor safety.''
       What Benjamin Franklin said in his own day remains a 
     telling commentary for our time. Indeed, these words could 
     have been written specifically about the Patriot Act, which 
     went too far in trying to accomplish a legitimate goal: to 
     remove some of the bureaucratic and legal barriers that stood 
     in the way of hunting down terrorists.
       But increasing government power while decreasing judicial 
     oversight was a troubling exercise in a free country, and 
     Congress realized as much when it passed the Patriot Act, 
     including sunset provisions that could be considered in 
     calmer days. That time has come and plenty of true patriots 
     have stood up and offered suggestions that would make the 
     Patriot Act more respectful of civil liberties and the 
     American ideal of freedom.
       This is one issue that provides common ground for liberals 
     and conservatives. When a government has the power to search 
     a suspect's premises without his knowledge and can retrieve 
     personal business and library records of people without 
     showing any connection to terrorism, then the alarms that go 
     up are for Americans regardless of party. That is why, for 
     example, former Republican Rep. Bob Barr, the scourge of 
     President Clinton, finds himself on the same side of the 
     fight as the American Civil Liberties Union.
       Despite the bipartisan qualms about reauthorizing the 
     Patriot Act without proper amendment, the Bush administration 
     has not been sympathetic. Trust us, it says implicitly. But 
     because paranoia animates policy for this White House, the 
     use of the Patriot Act is bound to go too far and impinge on 
     basic civil liberties. This is an administration, after all, 
     that feels threatened when Sen. John McCain and others want 
     to outlaw torture.
       Sadly, ordinary Americans can't naively trust their freedom 
     to such hands. The Patriot Act needs to have reasonable 
     checks and balances written into it. Of the two bills to 
     reauthorize the act, the Senate version accomplishes this 
     better than the House measure. A tentative agreement has been 
     reached on reconciling the bills, but principled opposition 
     remains.
       Six senators--three Republicans (Larry Craig of Idaho, John 
     Sununu of New Hampshire and Lisa Murkowski of Alaska) and 
     three Democrats (Richard Durbin of Illinois, Russell Feingold 
     of Wisconsin and Ken Salazar of Colorado)--have emerged to 
     resist accepting a version of the Patriot Act that doesn't 
     meet their legitimate concerns.
       This isn't about being pro-terror but pro-American. It is 
     possible to keep essential liberty and obtain safety. For 
     Americans to deserve both, the true patriots on Capitol Hill 
     need support.

  From the New York Times, just recently, on February 11, 2006, 
entitled, ``Another Cave-In on the Patriot Act.''

       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. When the Patriot 
     Act was passed after Sept. 11, 2001, Congress made some of 
     its most far-reaching provisions temporary so it would be 
     able to reconsider them later on. Those provisions were set 
     to expire last December, but Congress agreed to a very short 
     extension so greater civil liberties protections could be 
     added. This week, four key Republican senators--later backed 
     by two Democrats--said that they had agreed to a deal with 
     the White House. It is one that does little to protect 
     Americans from government invasions of their privacy.
       One of the most troubling aspects of the Patriot Act is the 
     ``gag order'' imposed by Section 215, which prohibits anyone 
     holding financial, medical and other private records of 
     ordinary Americans from saying anything when the government 
     issues a subpoena for those records. That means that a person 
     whose records are being taken, and whose privacy is being 
     invaded, has no way to know about the subpoena and no way to 
     challenge it. Rather than removing this gag order, the deal 
     keeps it in place for a full year--too long for Americans to 
     wait to learn that the government is spying on them. Even 
     after a year, someone holding such records would have to meet 
     an exceedingly high standard to get the gag order lifted. It 
     is not clear that this change has much value at all.
       The compromise also fails to address another problem with 
     Section 215: it lets the government go on fishing 
     expeditions, spying on Americans with no connection to 
     terrorism or foreign powers. The act should require the 
     government, in order to get a subpoena, to show that there is 
     a connection between the information it is seeking and a 
     terrorist or a spy.
       But the deal would allow subpoenas in instances when there 
     are reasonable grounds for simply believing that information 
     is relevant to a terrorism investigation. That is an 
     extremely low bar.
       One of the most well-publicized objections to the Patriot 
     Act is the fact that it allows the government to issue 
     national security letters, an extremely broad investigative 
     tool, to libraries, forcing them to turn over their patrons' 
     Internet records. The wording of the compromise is unclear. 
     If it actually says that national security letters cannot be 
     used to get Internet records from libraries, that would be an 
     improvement, but it is not clear that it does.
       In late December, it looked as if there was bipartisan 
     interest in the Senate for changing the worst Patriot Act 
     provisions and standing up for Americans' privacy rights. Now 
     the hope of making the needed improvements has faded 
     considerably.

  Clearly the PATRIOT Act touched a nerve, and has continued to do so 
for 4 years now. While I support a strong fight against terrorism, we 
cannot sacrifice our citizens' basic liberties in that fight. To do so 
would weaken this country.
  Next I want to turn back to some PATRIOT Act resolutions. It was not 
just State and city governments that passed resolutions these past 
several years. Colleges and universities across

[[Page 2423]]

the United States have become actively involved in the PATRIOT Act 
debate as well. Across the country, 53 resolutions have been passed on 
44 campuses advocating for substantial changes to the PATRIOT to 
protect the civil liberties of the American people. From Mt. Holyoke, a 
small private all-women's liberal arts school in South Hadley, MA, to 
the University of Texas at Austin, one of the largest public 
universities in the United States, students and faculties alike are 
coming together to pass these resolutions. Resolutions have been passed 
on college campuses in states from California to Kentucky. I will now 
read a few of these campus resolutions.

       A resolution concerning the protection of students' civil 
     rights in the wake of the passage of the USA PATRIOT Act.


            University of Texas at Austin Student Government

       WHEREAS: The United States Congress passed the Uniting and 
     Strengthening America by Providing Appropriate Tools Required 
     to Intercept and Obstruct Terrorism Act (USA PATRIOT Act; 
     Public Law 107-56) on October 25, 2001, championed by U.S. 
     Attorney General John Ashcroft;
       WHEREAS: The 4th amendment of the Bill of Rights 
     establishes: The right of the people to be secure in their 
     persons, houses, papers, and effects, against unreasonable 
     searches and seizures, shall not be violated, and no warrants 
     shall issue, but upon probable cause, supported by oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.
       2. WHEREAS: According to Mayor Pro Tem Jackie Goodman's 
     Austin City Council resolution regarding the PATRIOT Act, 
     ``fundamental rights granted by the United States 
     Constitution are threatened by actions taken at the Federal 
     level, notably by passage of certain sections of the `U.S.A. 
     P.A.T.R.I.O.T. Act,' other acts and executive orders which, 
     among other things:
       Grant potential unchecked powers to the Attorney General 
     and the U.S. Secretary of State to designate legal domestic 
     groups as ``terrorist organizations'' by overly broad 
     definitions, and implying restrictions to Constitutionally 
     protect First Amendment rights of speech and assembly by 
     reference, such as political advocacy or the practice of a 
     religion; while lifting administrative regulations on covert, 
     surveillance counter-intelligence operations;
       Violate the First and Fourth Amendments to the Constitution 
     through the expansion of the government's ability to wiretap 
     telephones, monitor e-mail communications, survey medical, 
     financial and student records, and secretly enter homes and 
     offices without customary administrative oversight or without 
     showing probable cause;
       Give law enforcement expanded authority to obtain library 
     records, and prohibits librarians from informing patrons of 
     monitoring or information requests;
       Violate the Fifth, Sixth and Fourteenth Amendments to the 
     Constitution in establishing secret military tribunals, and 
     in subjecting citizens and non citizens to indefinite 
     detention without being allowed an attorney, without being 
     brought to trial, and without even being charged with a 
     crime;
       Authorize eavesdropping on confidential communications 
     between lawyers and their clients in federal custody;''
       WHEREAS: In the October 1997 edition of Global Issues, 
     available as Vol. 2, No. 4 of the USIA Electronic Journal, 
     then Senator John Ashcroft (R-MI) wrote in an article 
     entitled, ``Keep Big Brother's Hands Off the Internet,''
       The FBI wants access to decode, digest and discuss 
     financial transactions, personal e-mail, and proprietary 
     information sent abroad--all in the name of national 
     security. . . This proposed policy raises obvious concerns 
     about American's privacy. . . The protections of the Fourth 
     Amendment are clear. The right to protection from unlawful 
     searches is an indivisible American value. Two hundred years 
     of court decisions have stood in defense of this fundamental 
     right. The state's interest in crime-fighting should never 
     vitiate the citizens' Bill of Rights. . .
       The administration's interest in all e-mail is a wholly 
     unhealthy precedent, especially given this administration's 
     track record on FBI files and IRS snooping. Every medium by 
     which people communicate can be subject to exploitation by 
     those with illegal intentions. Nevertheless, this is no 
     reason to hand Big Brother the keys to unlock our e-mail 
     diaries, open our ATM records, read our medical records, or 
     translate our international communications. . .
       WHEREAS: Eva Poole, President of the Texas Library 
     Association, the oldest and largest organization representing 
     Texas libraries, including university and academic libraries, 
     stated in a personal e-mail by request:
       The USA PATRIOT Act is just one of several troubling 
     policies that compromise the public's privacy rights. 
     Enhanced surveillance powers permitted under the provisions 
     of the Act license law enforcement officials to peer into 
     Americans' most private reading, research, and 
     communications. Several of the Act's provisions not only 
     violate the privacy and confidentiality rights of those using 
     public libraries, but take no consideration of constitutional 
     checks and balances as it authorizes intelligence agencies to 
     gather information in situations that may be completely 
     unconnected to a potential criminal proceeding.
       Librarians do not know how the USA PATRIOT Act and related 
     measures have been applied in libraries because the gag order 
     bars individuals from making that information public. Equally 
     troubling is the fact that librarians are not allowed to 
     comment on FBI visits to examine library users' Internet 
     surfing and book-borrowing habits. I oppose any use of 
     governmental power to suppress the free and open exchange of 
     knowledge and information.
       WHEREAS: The Student Governments of the University of 
     California at Berkeley and Santa Barbara, University of 
     Alaska Fairbanks, University of Washington, Washington State 
     University, University of Wisconsin and Southern Oregon 
     University have passed resolutions denouncing the USA PATRIOT 
     Act;
       THEREFORE BE IT RESOLVED that the Student Government of the 
     University of Texas at Austin has been, and remains, 
     absolutely committed to the protection of civil rights and 
     civil liberties for all of its students and affirms its 
     commitment to embody democracy and to embrace, defend, and 
     uphold the inalienable rights and fundamental liberties 
     granted to students under the United States and Texas 
     Constitutions;
       BE IT FURTHER RESOLVED that the Student Government of the 
     University of Texas at Austin firmly calls upon the Austin 
     Police Department, University of Texas Police Department, 
     Federal Bureau of Investigation and Joint Terrorism Task 
     Force to refrain from and, in certain cases, discontinue the 
     surveillance of individuals, groups of individuals, and 
     organizations based solely on their participation in 
     activities protected by the First Amendment to the United 
     States Constitution, such as political advocacy or the 
     practice of a religion without reasonable and particularized 
     suspicion of criminal conduct unrelated to the activity 
     protected by the First Amendment of the United States 
     Constitution;
       BE IT FURTHER RESOLVED that Student Government respectfully 
     requests that Dr. Fred Heath, Vice Provost of General 
     Libraries, direct all UT libraries to post in a prominent 
     place within the library a notice as follows:
       ``WARNING: Under Section 215 of the federal USA PATRIOT Act 
     (Public Law 107-56), records of books and other materials you 
     borrow from this library may be obtained by federal agents. 
     This law also prohibits librarians from informing you if 
     records about you have been obtained by federal agents. 
     Questions about this policy should be directed to Attorney 
     General John Ashcroft, Department of Justice, Washington, DC 
     20530.'';
       BE IT FURTHER RESOLVED that the Student Government of the 
     University of Texas at Austin commits to organizing a forum 
     addressing student privacy concerns consisting of a panel of 
     relevant administrators and community members;
       BE IT FURTHER RESOLVED that the Student Government of the 
     University of Texas at Austin firmly calls upon UTPD to 
     preserve and uphold students' freedom of speech, assembly, 
     association, and privacy, the right to counsel and due 
     process in judicial proceedings, and protection from 
     unreasonable searches and seizures, even if requested to do 
     otherwise in accordance with new federal law, which infringes 
     upon such rights granted to federal or state law enforcement 
     agencies under powers assumed by the USA PATRIOT Act by 
     Executive Order;
       BE IT FURTHER RESOLVED that the Student Government of the 
     University of Texas at Austin calls upon the Austin City 
     Council to do everything in its power to protect and defend 
     the rights and liberties of University of Texas at Austin 
     students who reside within jurisdiction of the City of 
     Austin.

  Next:

              Associated Students of Mount Holyoke College


 A Resolution Affirming Civil Rights and Liberties in Light of the USA 
                              PATRIOT Act

       WHEREAS, Mount Holyoke College has a diverse student and 
     faculty body, including many students from outside the United 
     States, and many students with diverse cultural backgrounds 
     whose contributions to this community are vital to the 
     culture and civic character of Mount Holyoke College; and
       WHEREAS, the preservation of civil rights and civil 
     liberties is a pillar of American society and is essential to 
     the well-being of any democracy, particularly during times of 
     conflict when such rights and liberties, especially those of 
     immigrants and ethnic minorities, may be threatened, 
     intentionally or unintentionally; and
       WHEREAS the preservation of civil rights and liberties is 
     essential to the well-being of a democratic society; and
       WHEREAS, The community of Mount Holyoke College denounces 
     terrorism, and acknowledges that federal, state and local 
     governments have a responsibility to protect

[[Page 2424]]

     the public from terrorist attacks in a rational, deliberative 
     and lawful fashion to ensure that any new security measure 
     enhances public safety without impairing constitutional 
     rights or infringing upon civil liberties; and
       WHEREAS, Mount Holyoke College as a private institution, is 
     also responsible to protect its community, including all 
     faculty, staff, and students, whether they be residents or 
     non-residents; and
       WHEREAS, the United States Congress passed the Uniting and 
     Strengthening America by Providing Appropriate Tools Required 
     to Intercept and Obstruct Terrorism Act (USA PATRIOT Act; 
     Public Law 107-56) on October 26, 2001; and
       WHEREAS, some provisions of the USA PATRIOT Act and other 
     related federal orders and measures may pose a threat to the 
     civil rights and civil liberties of all students, staff and 
     faculty at Mount Holyoke College, including natural citizens 
     of the United States, and particularly, but not limited to, 
     those who are of Middle Eastern, Muslim or South Asian 
     descent; by:
       a. Reducing judicial supervision of telephone and Internet 
     surveillance.
       b. Expanding the government's power to conduct secret 
     searches without warrant.
       c. Granting power to the Secretary of State to designate 
     domestic groups, including political and religious groups, as 
     ``terrorist organizations''.
       d. Granting power to the Attorney General to subject non-
     citizens to indefinite detention or deportation even if they 
     have not committed a crime.
       e. Granting the Federal Bureau of Investigation (FBI) 
     access to sensitive medical, mental health, financial and 
     educational records about individuals without having to show 
     evidence of a crime.
       f. Granting the FBI the power to compel libraries and 
     bookstores to produce circulation or book purchase records of 
     their patrons, and forbidding disclosure that such records 
     have been requested and produced; and
       WHEREAS, law enforcement and security measures that 
     undermine fundamental constitutional rights do irreparable 
     damage to the American institutions and values of equal 
     justice and freedom that the students staff and faculty of 
     Mount Holyoke College hold dear; and
       WHEREAS, the Senate of the Associated Students of Mount 
     Holyoke College believes that there is not and need not be 
     conflict between security and the preservation of liberty, 
     and that students of Mount Holyoke College can maintain their 
     privacy and be both safe and free;
       BE IT RESOLVED BY THE SENATE OF THE ASSOCIATED STUDENTS OF 
     MOUNT HOLYOKE COLLEGE THAT the SGA Senate supports the 
     fundamental, constitutionally-protected civil rights and 
     civil liberties of all members of Mount Holyoke College; and 
     THAT the SGA Senate opposes those measures that infringe upon 
     such civil rights and liberties, or that single out 
     individuals for legal scrutiny or enforcement activity based 
     solely on their country of origin, religion, ethnicity or 
     immigration status; and THAT the SGA Senate urges all 
     students, staff, and faculty of Mount Holyoke College to 
     respect the civil rights and civil liberties of all members 
     of this community, regardless of citizenship or heritage; and 
     THAT the SGA Senate urges the Mount Holyoke College 
     Department of Public Safety and all other applicable 
     departments, except when required by law, to refrain from:
       a. utilizing race, religion, ethnicity or national origin 
     as a factor in selecting which individuals to subject to 
     investigative activities except when seeking to apprehend a 
     specific suspect whose race, religion, ethnicity or national 
     origin is part of the description of the suspect,
       b. participating in a joint search of the property or 
     residence, with any law enforcement agency absent the 
     assurance that simultaneous notice of the execution of a 
     search warrant to such member of Mount Holyoke College,
       c. any practice of stopping drivers or pedestrians for the 
     purpose of scrutinizing their identification documents 
     without particularized suspicion of criminal activity, and
       THAT the SGA Senate urges the Mount Holyoke College 
     Department of Public Safety not to subject any individual to 
     the custody of the South Hadley Police Department, who may be 
     placed in federal custody, to military detention, secret 
     detention, secret immigration proceedings, or detention 
     without access to counsel; and
       THAT the SGA Senate urges the Mount Holyoke College 
     administration to provide notice to all individuals whose 
     education records have been obtained by law enforcement 
     agents pursuant to Section 507 of the USA PATRIOT Act 
     (Disclosure of Educational Records).

  Mr. President, I ask unanimous consent to have printed in the Record 
the resolution passed by the United Council of Students at the 
University of Wisconsin Madison.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         University of Wisconsin Student Resolution (2/19/2004)


          MC1201-01: Resolution in Response to USA PATRIOT Act

       Whereas the Fourth Amendment of the United States 
     Constitution states;
       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures, shall not be violated, and no Warrants shall 
     issue, but upon probable cause, supported by Oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized, and;
       Whereas the Fifth Amendment of the United States 
     Constitution states;
       No person shall be held to answer for a capital, or 
     otherwise infamous crime, unless on a presentment or 
     indictment of a Grand Jury, except in cases arising in the 
     land or naval forces, or in the militia, when in actual 
     service in time of war or public danger; nor shall any person 
     be subject for the same offence to be put twice in jeopardy 
     of life or limb; nor shall be compelled in any criminal case 
     to be a witness against himself, nor be deprived of life, 
     liberty, or property, without due process of law; nor shall 
     private property be taken for public use, without just 
     compensation, (emphasis added), and;
       Whereas Section 1 of the Fourteenth Amendment of the United 
     States Constitution states;
       All persons born or naturalized in the United States and 
     subject to the jurisdiction thereof, are citizens of the 
     United States and of the State wherein they reside. No state 
     shall make or enforce any law which shall abridge the 
     privileges and immunities of citizens of the United States; 
     nor shall any State deprive any person of life, liberty, or 
     property, without due process of law; nor deny to any person 
     within its jurisdiction the equal protection of the laws 
     (emphasis added), and;
       Whereas the United Council of University of Wisconsin 
     Students Policy Platform in regards to Student/Civil/Legal 
     Rights states the following two points;
       United Council opposes discrimination based on but not 
     limited to race, ethnicity, creed, gender, gender identity, 
     sexual orientation, religious belief or lack thereof, veteran 
     status, marital/familial/parental status, age, physical 
     appearance, disability, political affiliation, national 
     origin, income level or source, residency status, or 
     geographic disadvantage for any reason including but not 
     limited to educational opportunity, employment, housing, 
     physical or emotional well being, and social attitudes; and;
       United Council supports the student campaign for the 
     statistical accounting and documentation of Racial Profiling 
     in the UW System, the state of Wisconsin, and the United 
     States of America;
       Whereas the Uniting and Strengthening America by Providing 
     Appropriate Tools Required to Intercept and Obstruct 
     Terrorism, USA PATRIOT, Act of 2001 (H.R. 3162, S. 1510) of 
     the title officially introduced: `To deter and punish 
     terrorist acts in the United States and around the world, to 
     enhance law enforcement investigatory tools, and for other 
     purposes' became Public Law No. 107-56 on October 26, 2001;
       Whereas Senator Russ Feingold (D-WI) was the only member of 
     the United States Senate to vote against this bill;
       Whereas Laura Murphy, Director the American Civil Liberties 
     Union Washington National Office stated that, ``Included in 
     this bill are provisions that would allow for the 
     mistreatment of immigrants, the suppression of dissent and 
     the investigation and surveillance of wholly innocent 
     Americans;''
       Whereas the USA PATRIOT Act overrides civil liberties such 
     as those encompassed within the Fourth, Fifth and Fourteenth 
     Amendments of the United States Constitution;
       Be it resolved that United Council appreciates the support 
     of Senator Russ Feingold for voting against the USA PATRIOT 
     Act;
       Be it further resolved that United Council upholds Civil 
     Liberties such as those encompassed within the Fourth, Fifth 
     and Fourteenth Amendments of the United States Constitution;
       Be it finally resolved that United Council urges UW 
     institutions to both officially state that they will protect 
     students, citizens and non citizens alike, and their rights, 
     and inform students that they are entitled to legal advice 
     before cooperating with Federal law enforcement agencies.

  Mr. FEINGOLD. Mr. President, every day children across this country 
learn about the role of their Government and how it is intended to 
function. I have also collected a handful of textbooks used by children 
from elementary school up through high school to see what they have to 
say about the role of Government. In looking at these books, I notice 
that each of them at different reading levels discuss the Government as 
a whole, the importance of the Constitution as the foundation of our 
Government, and the importance of checks and balances and separation of 
powers. Each of these books, at whatever learning level or reading 
level, teaches that

[[Page 2425]]

the Government does not have endless, unchecked powers over the people 
it is intended to protect.
  I started my presentation after cloture was invoked by reading the 
Constitution of the United States. I wish to conclude for now by 
reading a very brief portion of one of these books. It is entitled 
``National Government, a Kids' Guide.'' ``Separation of Powers.''

       The people who wrote the U.S. Constitution wanted to make 
     sure that the leaders of the government did not have too much 
     power. The writers spread the power among three separate 
     branches of government that work together to govern the 
     country. This is called separation of powers.
       The executive branch is lead by the president of the United 
     States. This part of the government is responsible for making 
     sure the laws are carried out, or executed.
       The legislative branch is made up of the people in the 
     Senate and the House of Representatives. Together, the Senate 
     and the House of Representatives are called the United States 
     Congress. The legislative branch makes the laws.
       The third branch is the judicial branch, which is led by 
     the Supreme Court. The judges--called justices--of the 
     Supreme Court explain the laws and decide if any laws are not 
     fair.
       Each branch of the government has its own job to do, but 
     the three branches have to work together. The people who 
     wrote the Constitution were very careful to make sure that 
     each branch of the government could check up on the others. A 
     system called checks and balances keeps different parts of 
     the government from having too much power.

  Mr. President, I ask unanimous consent that Senator Byrd be 
recognized at 12:30 p.m. today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I reserve the remainder of my time.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KYL. 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. KYL. Mr. President, I ask unanimous consent that I be allowed to 
speak until 12:30, with the time to be charged to the Republican side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, the hour has almost arrived. I understand 
that in a little less than 3 hours, we will finally be voting for the 
final time on the reauthorization of the PATRIOT Act. This is critical 
for the defense of our country, the security of our Nation.
  I am pleased we have the opportunity now to approve it, and I predict 
it will be approved overwhelmingly. The question is, What took us so 
long? We could have done this at least 2 weeks ago. Indeed, we could 
have done it 2 months ago. Such is the process in the Senate that 
sometimes the wheels grind slowly.
  The problem is the war on terror. Our enemy does not treat the war 
necessarily the same way some people in this country do. They are very 
flexible. They are very agile. They do not tell us what they are going 
to do in advance. Sometimes they are very patient and wait a long time 
to strike, and when they do strike, it can be with great speed and 
lethalness, which means that our ability to fight the terrorists has to 
be equally agile.
  Good intelligence has a short shelf life. Yet that is basically our 
main weapon in the war on terror. This is not a war we fight with 
planes, tanks, and ships, but with good intelligence to find out where 
the terrorists are, who they are, what they are up to, and, if we can, 
find out whether we are able to stop their terrorist attacks before 
they occur. That takes good intelligence. It takes agility to be able 
to get that intelligence, cooperate among the various law enforcement 
and intelligence agencies.
  Before September 11, several of us had provisions of law we believed 
were important to amend in our statutes to provide tools to fight 
terrorists. Little did we know how important those would soon become. 
Senator Feinstein and I have been ranking member and chairman of the 
Subcommittee on Terrorism, Technology and Homeland Security for many 
years, since I came to the Senate. We held a lot of hearings on the 
subject. We had a lot of ideas about what we wanted to propose.
  Shortly after September 11, a lot of these things made their way into 
the PATRIOT Act which we were able to approve. Some Members said the 
PATRIOT Act was approved hastily. Actually, a lot of the ideas of the 
PATRIOT Act had been around for some time, had a lot of debate and 
hearings, but there did not seem to be a reason to get them passed; 
that is, until September 11, and then, indeed, we did act quickly. But 
I submit there is a difference between acting hastily and acting 
quickly.
  Nevertheless, some of the provisions were sunsetted. Regarding things 
we did then and some subsequent amendments to statute, we wanted to 
take another look down the road to make sure we did not act too 
hastily. Our action today will make it clear that by reauthorizing 
these provisions, we intended them to be in effect. We know the 
terrorists have not stopped their war on terror, and therefore we dare 
not stop the tools to fight terrorism, many of which are embodied in 
the PATRIOT Act. So it is important to reauthorize these provisions and 
not have them expire or sunset.
  There is a certain amount of pride of authorship I confess to since a 
lot of the provisions we are reauthorizing today are provisions which I 
wrote or helped to write in coauthorship with some of my colleagues. 
Let me mention some of these because these are important, one of which 
has been known as or has come to be known as the Moussaoui fix, which 
is named after Zacarias Moussaoui, sometimes referred to as the 20th 
hijacker. In the 108th Congress, Senator Schumer and I introduced the 
Moussaoui fix, which allows the FBI to obtain FISA warrants to monitor 
and search suspected lone wolf terrorists such as Zacarias Moussaoui.
  Now, lone wolf terrorists exist because in today's world, you do not 
get a little card that says: I am a proud member of al-Qaida. It is a 
very loose-knit organization. Some have likened it to a franchise where 
all over the world there are little bands of people--cells--who would 
do harm to the West generally and the United States in particular and 
who share the same goals and ideals of al-Qaida, frequently have 
communication with members of al-Qaida, train in the same way, and 
conduct the same kinds of terrorist activities, sometimes in 
consultation or concert with al-Qaida. But it is not like a club, it is 
not like you are a member of the KGB of the Soviet Union, which is what 
the threat was when we wrote the FISA act.
  Because the FISA act refers to foreign intelligence organizations or 
terrorist organizations, we found that with people such as Zacarias 
Moussaoui, who we could not prove was a card-carrying member of any 
particular terrorist group but we figured he was a terrorist and up to 
no good, we did not have an ability under FISA to seize and search his 
computers even though we had the ability to arrest him. This was 2 
weeks before September 11. Had we been able to get into the computer, 
we might well have discovered the information we later found that could 
have pointed us in the direction of an attack on September 11.
  Well, that is what the object of the Zacarias Moussaoui fix was: to 
enable us to add the lone wolf terrorist to the other situations in 
which a FISA warrant could be obtained. And it filled a gap in our laws 
that, as I said, might well have uncovered the September 11 conspiracy 
had it been in place at the time.
  It was reported out of a unanimous Judiciary Committee and passed out 
of the Senate 90 to 4 in 2003. In 2004, it was added to the 
Intelligence Reform and Terrorism Prevention Act, with the general 
PATRIOT Act sunset applied to it. Like the other PATRIOT provisions, 
the Moussaoui fix was set to expire at the end of last year. Today, we 
will extend the sunset on that critical provision of law for another 4 
years.
  Another was the material support enhancements. In 2004, I introduced 
a bill that, among other things, clarified and

[[Page 2426]]

expanded the statute prohibiting the giving of material support to a 
designated foreign terrorist organization. These changes helped address 
perceived ambiguities in the law that had led the Ninth Circuit Court 
of Appeals to strike down parts of it as unconstitutionally vague. The 
changes also expanded the law to bar giving any type of material aid 
whatsoever--including providing one's self--to a terrorist group.
  This legislative proposal also was enacted into law later that year 
as part of the intelligence reform bill, and also was subjected to a 
sunset. Again, today, with the PATRIOT Act reauthorization conference 
report, we repeal that sunset. We make the 2004 material support 
enhancements permanent features of our law, as they should be.
  Another part of the original PATRIOT Act I helped author was the so-
called pen registers and trap-and-trace authority. Now, the authority 
for pen registers and trap and trace is critical for antiterror 
investigations. It has been around for years in connection with other 
kinds of investigations, and it obviously was an important tool to 
fight terrorism.
  What these authorities do is allow investigators to discover what 
telephone numbers are being dialed into and out of a suspect's 
telephone. As I said, they already had this authority in connection 
with other kinds of crimes. It certainly made sense to have it track 
terrorists. An important feature here was to get one court order from a 
judge in one place and not have to hop all around the country wherever 
the telephone was used and get a separate court order in that State. 
That requirement made it totally useless.
  So this one court warrant for trap and trace and pen registers was 
enacted. I am very glad to see the conference report repeals the sunset 
on this authority--in other words, the automatic ending of the 
authority--and makes permanent for antiterror investigations this pen 
register and trap-and-trace authority, another critical tool to fight 
terrorism.
  For the past 2 years, I have also been a cosponsor of legislation 
that my colleague, Senator Feinstein, helped to coauthor on seaport 
security and mass transportation security. This is especially 
interesting in view of the debate and concern right now about seaport 
security with which we are all familiar. This particular legislation 
increases the penalties for and, by the way, also the scope of the 
criminal offenses for attacks on seaports and shipping. It also 
consolidates and updates the laws with regard to attacks on railroads 
and other mass transportation facilities.
  Now, these proposals also had been amended into the intelligence 
reform bill in 2004 by the House of Representatives but have been 
dropped in conference. Today these important provisions, which I helped 
to coauthor, are enacted into law through the conference report of the 
PATRIOT Act.
  There is another rather interesting, rather esoteric--one of the 
things lawyers debate about--but an interesting and important provision 
of the PATRIOT Act we are going to be dealing with today. When the 
final draft of the PATRIOT Act reauthorization was introduced in the 
Judiciary Committee the night before the committee acted on it, for the 
first time a proposed three-part test was inserted into the bill--a 
test for determining whether a section 215 order is relevant to a 
terrorism investigation. There has been a lot of debate about these 
section 215 orders, but these are critical to obtain records that might 
help in the investigation of a potential terrorist.
  Several of us expressed reservations about this three-part test and 
whether it would impede the use of these section 215 warrants and 
impede important investigations and thought it required further study.
  Well, during the next weeks and months, we became persuaded 
essentially that this three-part test would simply either make 
impossible or certainly delay needed investigations and, therefore, 
should not be enacted. It raised more questions than it answered, 
complicated this investigative tool that was being used, after all, at 
the very preliminary stages of an investigation--not the stage at which 
you ought to be proving probable cause to introduce evidence into the 
trial.
  Well, the test remains in the conference report, but with changed 
language. I think it is much better in its current form. The form of 
the test remains in the conference report, but investigators are no 
longer required to use that test. Instead, they are simply permitted to 
use that test to obtain a presumption that a 215 order is relevant to a 
terror investigation, which is fine.
  Usually, when we create a legal presumption that a standard has been 
met, it is easier to satisfy the presumption than it is to satisfy the 
underlying legal test. I do not believe that is the case here. 
Relevance is a simple and well established standard of law. Indeed, it 
is the standard for obtaining every other kind of subpoena, including 
administrative subpoenas, grand jury subpoenas, and civil discovery 
orders.
  So I cannot imagine that investigators will ever bother using the 
complicated three-part test in order to get a presumption when they can 
simply plead relevance and that will suffice for their investigation. I 
might be wrong, and they might find this test useful. It is there 
should they decide they can use it. But I am pleased to see the 
conference report is not impeding investigations by mandating the use 
of that test.
  We are not betting important antiterror investigations on the issue, 
I guess, is another way to say it. I think it would have been clearer 
just to eliminate the test, but it does not--other than, in my view, 
cluttering up section 215 of the PATRIOT Act because it is not 
mandatory, I do not think it is going to cause any harm. Investigators 
are not going to be impeded in their investigations because of it. I 
think that is an important change we made.
  The conference report also does something that is important for 
States, like my own State of Arizona, that have attempted to improve 
the ability to prosecute and defend against certain kinds of serious 
crimes. In the 1996 Antiterrorism and Effective Death Penalty Act, 
Congress made an offer to the States in effect saying: If you will 
provide qualified counsel, lawyers, in capital cases to the defendants 
in those cases during the stage of the case after conviction but during 
appeal--it is the so-called postconviction review stage of litigation--
then the Federal Government would apply a streamlined and expedited 
procedure to review the habeas corpus petitions that are normally filed 
during that period of time from the conviction in the State court.
  The Federal courts would be required to abide by timelines in ruling 
on these cases, and they would be barred from staying Federal petitions 
to allow further exhaustion or broadly exempting claims from procedural 
default requirements on the grounds of the perceived inadequacy or lack 
of independence of the State's procedural rules. The bottom line is 
that if the defendants are represented by good counsel, by good 
lawyers, then they should be able to comply with the provisions of the 
law and not plead, in effect, they have to delay the law as they are 
having their appeals reviewed.
  Arizona did its part to comply with this statute. It enacted a system 
to provide qualified counsel to capital defendants on State 
postconviction review. It spent a lot of money doing it. But to date, 
it has not received the benefits of the system. It is because the 
decision about whether a State is entitled to the benefits of this 
chapter 154 relief--including the time deadlines--is made by the same 
Ninth Circuit Court of Appeals that would be bound by those deadlines. 
And it has repeatedly refused to extend to Arizona the benefits of the 
1996 law's special habeas chapter. By the way, it has also been very 
slow in many of these cases, and that has been a real problem.
  The good thing about today's conference report is that it includes a 
provision that would shift the decision of whether a State is eligible 
for this expedited review of capital cases away from the regional 
courts of appeals to the U.S. Attorney General, with a review of his 
decision in the U.S. Circuit

[[Page 2427]]

Court for the District of Columbia. That court hears no habeas cases; 
therefore, it has no conflict of interest as the other circuit courts 
would. This will allow the Federal Government to keep its end of the 
bargain that it made with the States back in 1996 and will allow States 
like Arizona to finally take advantage of the streamlined and expedited 
procedures to which it is entitled.
  I will conclude in this fashion. I think that by what I have just 
said it is clear there are a variety of important provisions in this 
conference report, this PATRIOT law we are reauthorizing. In some cases 
we are saying this is now going to be permanent law. We do not need to 
come back and reauthorize it every 4 years. In other cases, we are 
saying there are important provisions of other laws that need to be put 
in the PATRIOT Act and made permanent law. And we have done that. In 
other cases, as I mentioned, we wrote particular provisions into the 
PATRIOT Act, and it is important that we reauthorize those provisions. 
And there were other provisions, in addition to pen registers and trap 
and trace that I mentioned before, as well as the material support, 
which were parts of the original act.
  We established several crimes as part of the PATRIOT Act that would 
serve as predicate crimes for further investigation, and these were 
very important because in the early stages of an investigation into a 
terrorist you may not have all of the scope of the activity of this 
individual well in mind. You may know he has been guilty of what you 
think of one particular crime, but you need to be able to use that as a 
predicate to expand your investigation into other things he may have 
done.
  So, for example, we establish that violations of the Federal 
terrorism statutes could serve as a predicate offense allowing the 
Department of Justice to apply to courts for authorization to intercept 
wire or oral communications pursuant to title III when investigating 
such offenses. We establish that the felony violations of the Federal 
computer crimes statutes, the so-called hacking statutes, might serve 
as a predicate offense, allowing the Department of Justice to apply to 
courts for authorization to intercept wire or oral communications 
pursuant to title III when investigating such offenses.
  We provide for the detention, for up to 7 days, of aliens the 
Attorney General has reasonable grounds to believe were engaged in 
conduct that threatened the security of the United States or aliens who 
are inadmissible; that is to say, they are not supposed to be coming 
into the United States or are deportable from the United States on the 
grounds of terrorism, espionage, sabotage, or sedition.
  There are a variety of other provisions that are included in the 
PATRIOT Act. The key thing to remember here is, as I said before, our 
law enforcement and intelligence officials need to have adequate tools 
to fight terrorism because we provide those tools when we send the 
military into harm's way. We have an obligation to do that. And they 
fight important fronts in the war on terror. But so much of this war on 
terror relates to intelligence gathering and law enforcement activity, 
investigating potential crimes of these individuals. We have to give 
them the tools they need to fight these terrorists.
  The PATRIOT Act does that. It is one of our tools. The FISA law is 
another one of those tools, the Surveillance Act. The Foreign 
Intelligence Surveillance Act is what FISA stands for. We have 
activities such as the NSA surveillance that is another important tool 
that deals with al-Qaida terrorists who are calling into or out of a 
foreign country. There are other mechanisms we are using to fight the 
terrorists.
  But one of the bedrock laws now that we use is the PATRIOT Act. That 
law passed not long after 9/11 because we understood this world had 
changed and that it was time to apply to terrorism many of the same 
kinds of techniques in law enforcement authorities that we already 
deemed very useful in investigating other kinds of crimes. Our idea 
was, if it is good enough to investigate money laundering or drug 
dealing, for example, we sure ought to use those same kinds of 
techniques to fight terrorists. We have done that.
  Today, actually, is a very important day because many of the 
provisions of the PATRIOT Act go into permanent law. Others are 
reauthorized for 4 more years. They provide critical support to the 
people we want to protect us in this war on terror. I am delighted we 
will be adopting the PATRIOT Act conference report today. My only 
regret, as I said, is we could not have done it before now. But we can 
at least celebrate the fact that the Senate has done its duty for the 
American people to help make them secure in the future.
  The PRESIDING OFFICER (Mr. Isakson). The majority leader is 
recognized.


                    Appointment of Pension Conferees

  Mr. FRIST. Mr. President, this morning the minority leader came to 
the floor to once again call into question our good faith efforts on 
the pensions bill. He now claims our longstanding offer of a 7-5 ratio 
on the conference committee ``looks suspicious.'' I can't help but feel 
that what is beginning to look suspicious is this continuing pattern of 
obstruction on ground that seems to be ever shifting.
  We originally considered proposing a 5-3 ratio but, to accommodate 
his caucus, we ultimately offered a 7-5 ratio. After a 2-month delay, 
this was rejected. The Democratic leader was unable to make a decision 
among members of his caucus. I understand those challenges, but that is 
what leadership is all about. Now he wishes to further delay with an 
arbitrary dispute over the ratio of conferees and this new, equally 
disingenuous charge of ``fixing the jury,'' which is absurd.
  As the minority leader well knows, I have been working for years to 
fix the pensions problem. The American people deserve it. People don't 
understand why these games are being played.
  The clock is ticking. People's lives are at stake. The first quarter 
of the physical year ends on March 31, 31 days from now. Within 2 weeks 
of that happening, companies have to make contributions to their 
pension plans. The pensions of millions of hard-working Americans are 
at stake. That is why these games don't make sense.
  We have two committees with an equal stake in this bill. They should 
have an equal number of conferees on the committee. The conference 
committee should fairly represent the two committees of jurisdiction. 
The minority leader knows his proposals won't allow for that. I am for 
a fair conference but, equally importantly, I am for getting to 
conference so that we can address these challenges. The American people 
are waiting.
  I know the Democratic leader says he wants to move forward as well. 
But remember, we passed this bill in November of last year, and we are 
still trying to do something very simple; that is, to get to conference 
so that we can pass the legislation.
  I am baffled by the minority leader's inability to decide which five 
Senators from his caucus could join with our seven Senators so that we 
can appoint a conference and do the Nation's business. I am equally 
confused about why, in refusing to make that decision, he instead feels 
that he should decide on his own, unilaterally, the ratio of conferees 
with no regard for treating the two committees of jurisdiction fairly. 
If anyone is trying to fix the jury, it appears to be the minority 
leader by having one committee with more representatives than the 
other. We go back and forth every day, and that clock is ticking.
  The airline provisions of the bill are necessary to keep additional 
pension obligations from being terminated and left at the doorstep of 
the Pension Benefit Guaranty Corporation. As Chairman Grassley has 
suggested, in remarks that I will include in the Record, if we cannot 
make some progress shortly, we may need to look at pulling these 
provisions out and moving them on some other vehicle. That should not 
be necessary, but continued obstruction would leave us with no other 
choice. We are simply running out of time.
  I plead with the Democratic leader to put forth his five. We have 
been ready for the last 2 months to put forth our

[[Page 2428]]

7 so we can get to conference and provide answers and a resolution to 
what millions of Americans are waiting for.
  I ask unanimous consent to print in the Record the above-referenced 
document.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       [From Dow Jones Newswires]

     U.S. Senator Grassley: Senator Reid Undermining Pension Talks

                    (By Rob Wells and John Godfrey)

       Washington (Dow Jones).--A top U.S. Senate Republican on 
     Thursday accused Senate Minority Leader Harry Reid, D-Nev, of 
     undermining talks for a final pension overhaul bill, thereby 
     helping the bill's critics.
       ``It's playing right into the hands of Ford (F) and General 
     Motors (GM), because they negotiated benefits, both health 
     and savings, they can't keep their promise to,'' said Senate 
     Finance Chairman Charles Grassley, R-Iowa, at the National 
     Summit on Retirement Savings, an industry and government 
     seminar.
       He said these companies ``don't want these reforms because 
     they're going to have to pay up'' through higher pension 
     contributions.
       The bill would change pension funding rules and increase 
     premiums paid by companies to the Pension Benefit Guaranty 
     Corporation. The measure has divided business and labor 
     groups, many of whom argue that it would be too strict.
       The Senate has been attempting to name negotiators since 
     December to a House and Senate conference to write a final 
     pension overhaul bill.
       Grassley accused Reid of delaying final pension talks by 
     not formally naming Democratic negotiators. Part of the 
     delay, however, stemmed from internal Republican 
     disagreements over who would lead negotiations.
       Reid and Senate Majority Leader Bill Frist, R-Tenn., have 
     been in a standoff over the number of Democrats who will be 
     part of the talks.
       Grassley, departing from his prepared remarks, sharply 
     criticized Reid for the delay. ``They're being held up 
     because one person in U.S. Senate can't make up his mind 
     which two or three Democrats ought to be on a conference 
     committee,'' Grassley said.
       If Congress fails to act on the pension bill, companies 
     will have to begin using the relatively pessimistic benchmark 
     of the 30-year Treasury bond in pension calculations. The 30-
     year bond rate would begin to apply after April 15, although 
     higher payments wouldn't occur until January 2007. Currently 
     companies are using a blend of corporate bond rates in such 
     calculations.
       The airline industry also has a major stake in the bill 
     since the Senate version would give a special break from 
     pension funding rules for underfunded airline pension plans.
       Grassley and other bill advocates say it's vital Congress 
     completes work on the bill by the April 15 deadline.
       Without action by then, ``it's putting into jeopardy 
     airlines being able to fly'' Grassley said, which would 
     ``ruin the economy if we don't get something done.''
       Further delays may force negotiators to move pieces of the 
     bill, such as the airline provision, in separate tax 
     legislation to meet the April 15 deadline, he said.
       A telephone call to Reid's office wasn't immediately 
     returned.

  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. DeMINT. 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. DeMINT. I ask unanimous consent to speak for 5 minutes as in 
morning business and that this time be counted against the Republican 
time in the debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Port Security

  Mr. DeMINT. Mr. President, I have had a chance to listen to the 
debate on the PATRIOT Act in my office. I had not planned to speak. But 
hearing continued attacks on the President on security issues, 
particularly port security, while some from the other side seem intent 
on stopping one of the most important security pieces of legislation we 
have, the PATRIOT Act, compelled me to come to the floor to straighten 
out the facts.
  It is important that we have an honest and fair debate. I appreciate 
those on the other side who have participated in the debate in an 
honest way. But I have heard enough of my colleagues from the other 
side use information and perhaps take different positions than they did 
only a year or so ago. I am compelled to point some of these things 
out.
  I will give one example. This week in a Commerce Committee hearing, 
we were talking about port security. Senator Boxer said:

       Our ports are a soft target. Al Qaida told us that when we 
     found that out through [their] documents. . . . . So you take 
     the Dubai situation plus our lack of action on security. . . 
     . . And I'm going to oppose this deal.

  That is fair enough unless we put it in perspective. This week, 
Senator Boxer actually voted to filibuster the PATRIOT Act, which is 
dedicated in large part to security in our ports. An entire title of 
the PATRIOT Act is focused on port security. Originally introduced as 
the bipartisan Reducing Crime and Terrorism in America's Seaports Act 
of 2005, title III strengthens criminal sanctions and takes a number of 
steps to improve our Nation's ability to secure our ports and to thwart 
terrorism. Yet Senator Boxer voted to filibuster the enactment of this 
essential port security provision the day after lamenting the 
vulnerability of American ports.
  The truth is, to anyone who has watched this over time, very often 
our Democratic colleagues, with all due respect, block the very thing 
they blame Republicans for--in this case, blaming the President. Not 
only did Senator Boxer vote to filibuster the PATRIOT Act, but after 
the 9/11 attacks, Senator Boxer was one of four Democratic cosponsors 
of a bill that would have specifically permitted noncitizens to serve 
as airport security screeners. Senator Boxer cosponsored legislation to 
allow noncitizens to do for air travel what essentially the Coast Guard 
does for port security. Now she wants to block foreign companies from 
using American workers to manage our port terminals. It is difficult to 
reconcile the two positions.
  Republicans want a fair and nonpartisan 45-day security review and a 
good but honest debate. It is not fair or honest to take a position 
this week that was very different than one that had been taken before. 
To Republicans, port security is not a passing political issue but a 
cornerstone of our commitment to protect the American people. That is 
why Republicans are working to pass the PATRIOT Act. We demand a fair 
and impartial 45-day security review of the proposed acquisition of the 
P&O Navigation Company of Britain by the Dubai Ports World.
  I don't mean to be unfair to Senator Boxer, but it is an example of 
folks maybe taking a different position, trying to blame the President 
for something, in fact, that they have blocked in the past.
  This is from an editorial in the Los Angeles Times, February 26:

       . . . Now there is a Republican in the White House, and of 
     all the grandstanding surrounding the Dubai Ports World deal, 
     none tops Boxer's performance. She said last week that she 
     would support legislation preventing any foreign firm, state-
     owned or not, from buying port operations. Memo to Boxer: 13 
     of the 14 container terminals at the ports of [Los Angeles] 
     and Long Beach, the biggest port complex in the United 
     States, are run by foreign-owned companies. She later told 
     The Times that she meant such deals should get greater 
     scrutiny, not be banned. Still, this is the sort of proposal 
     one would expect from a Senator from a landlocked state like 
     Vermont, not one where international trade plays a vital role 
     in the economy.

  The article goes on to talk about the 180-degree switch of opinions. 
Again, I don't mean to pick on one Senator. My plea to the other side, 
and my side as well, as we look at this vital issue of security in our 
country, don't look for political opportunities to blame one side for 
something we actually created ourselves. On the security issue, there 
is no better example of colleagues who have blocked security in many 
ways and now are attempting to suggest the President is not strong on 
security. President George Bush is the world leader in the war on 
terror and has probably done more to secure the borders of our homeland 
than any President or any Member of Congress. It is time we give him 
that respect.
  Mr. President, I thank you for the time, and I yield the floor.
  The PRESIDING OFFICER. The minority leader is recognized.
  Mr. REID. Mr. President, yesterday, the Senate passed a bill 
negotiated by

[[Page 2429]]

the junior Senator from New Hampshire, Mr. Sununu, to strengthen civil 
liberties protections in the PATRIOT Act. In light of the improvements 
contained in the Sununu bill, I will now vote in favor of the pending 
conference report.
  As I have emphasized many times, Democrats support the basic 
authorities contained in the PATRIOT Act. We voted for the original act 
in 2001. We unanimously supported the reauthorization bill that passed 
the Senate last summer. In recent months, we have been vigilant to 
ensure that no provision of the act would expire during ongoing 
negotiations over a long-term extension of the law. But our support for 
the PATRIOT Act doesn't mean a blank check for the President.
  Last December, a bipartisan group of Senators joined together to 
insist that the reauthorization bill which had been returned from the 
House-Senate conference be improved. We defeated that conference 
report, we did it purposefully, and it was done on a bipartisan basis.
  I note that some of my ``admirers''--I use that caustically--have run 
ads in the State of Nevada trying to embarrass me, saying that I and 
the Democrats are not for the PATRIOT Act. That was raw politics at its 
worst. What we tried to do, on a bipartisan basis, was to have a better 
conference report. That is what is happening. Some would say it has not 
been improved enough. I could argue that, but it has been improved.
  Republicans and Democrats declared back then that Congress can 
provide the Government with the powers it needs to protect Americans 
and, at the same time, ensure sufficient checks and oversight to 
prevent abuses of these powers. Security and liberty are neither 
contradictory nor mutually exclusive.
  Our insistence that the PATRIOT Act be improved has borne fruit. We 
stood up to the White House to demand a more balanced approach to 
antiterror tactics, and we have succeeded. Some say we didn't improve 
it enough, but there is no question that we improved it. Thanks to the 
courageous stand of Senator Sununu and a handful of other Republicans, 
along with the longstanding efforts of Chairman Specter, Senator Leahy, 
and other Democrats on the Judiciary Committee, the Senate will soon 
pass a stronger, better PATRIOT Act.
  The current bill is far from perfect. It falls short of the 
unanimously supported Senate bill we passed last summer. I would have 
preferred additional improvements in the conference report, but the 
version of the PATRIOT Act we will soon reauthorize is a vast 
improvement over the law we passed hastily in 2001.
  For example, under the original PATRIOT Act, people who received a 
Government request for business records under section 215 were barred 
from discussing the request with anyone--their wives, sons, daughters, 
business partners--no one. But now, for the first time, recipients of 
such a gag order will be able to challenge it before a judge.
  In addition, the new bill will restrict Government access to library 
records. The bill makes it clear that libraries operating in the 
traditional role, including providing Internet access, are not subject 
to national security letters.
  Finally, under the Sununu bill we passed yesterday, individuals or 
businesses that receive a national security letter will not be required 
to tell the FBI the identity of a lawyer they may consult to obtain 
advice or assistance. It seems so obvious that it is the right thing to 
do, but we had to fight for that.
  Even before the Sununu improvements, the conference report included a 
number of crucial provisions to ensure congressional and public 
oversight of the Government's expansive powers under the PATRIOT Act. 
We insisted that the House accept 4-year sunsets instead of 7-year 
sunsets on the most controversial provisions of the act. In the 
original bill, we set sunsets. It is so important, as we look back and 
recognize why we did that. It is so important that we did that. Because 
of that, we were forced to improve this legislation. I again say that 
maybe it is not to the satisfaction of some, but it is certainly 
improved.
  The conference report also requires extensive congressional public 
reporting and mandates audits by an independent inspector general. That 
wasn't there before.
  I will continue to work for additional improvements in the act.
  I wish to say at this time that Senator Russ Feingold is a person for 
whom I have great admiration. We are so fortunate that he is a Senator. 
Academically, no one in the Senate has a record that is superior to 
his. He is a Rhodes scholar, someone who stands for principle. I 
disagree with him on this legislation. I can support this legislation 
not going with all of the improvements that he, as a matter of 
principle, has caused the Senate to review.
  I believe it is unfortunate that this good man, the Senator from 
Wisconsin, was not able to offer even two amendments. We asked the 
majority leader: How about two amendments? Don't fill the tree. He will 
take 15 minutes on each amendment. We were turned down. That is why I 
voted against cloture yesterday. That is a bad way, in my opinion, to 
run this Senate.
  So I want the record to be spread with my words that Russ Feingold is 
a fine lawyer. I congratulate and applaud him for his work on this 
issue and other issues.
  I will continue to work with him to seek additional improvements to 
the act. For example, I know he worked hard on an issue that is so 
important. Let's go back to the Senate-passed version of section 215, 
under which a Government request for medical records and other 
sensitive personal information must have a more direct connection to a 
suspected terrorist or spy.
  Second, I remain extremely concerned about the lack of meaningful 
checks on Government overuse or abuse of national security letters. The 
Washington Post reported last November that the FBI issues more than 
30,000 such letters in a year, with no judicial supervision. So we need 
more oversight of the Government's power to issue these secret 
subpoenas--30,000 of them. How many is that a day? How many is that a 
week? How many is that a month? It is unfortunate that we were unable 
to get ahold of this and change this.
  Third, I still don't believe it was appropriate to include in the 
conference report sections not included in either the House or Senate 
bills limiting the right of habeas corpus in cases having nothing to do 
with terrorism. I will oppose any further weakening of the great writ.
  There is a hue and cry out there that we have to do something about 
earmarks. What they always talk about are appropriations earmarks, 
which include a fraction of a percentage of the spending of this 
Government.
  I do not back away or apologize for the earmarks I have placed in 
appropriations bills. I have a responsibility. I know better than some 
bureaucrat in Washington, DC, how the Forest Service should spend its 
money on the forests in Nevada. I know better than some bureaucrat from 
the Bureau of Land Management how money should be spent in Nevada. And 
80 percent of the Federal lands controlled by the Bureau of Land 
Management are in Nevada. I know better than some bureaucrat in 
Washington, DC, how the money should be spent on roads and highways and 
bridges and dams in my State.
  I believe in the Constitution. I believe the Constitution sets forth 
three separate but equal branches of Government, and by our folding on 
this earmark procedure and not doing our jobs, we are caving in and not 
following the Constitution. There are ways we can improve the way 
earmarks are placed on bills, and I am happy to work on that. I have 
worked with the distinguished ranking member of the Appropriations 
Committee and his staff to make sure this earmarking legislation that 
will be on the floor is not going to hurt what this body does. But my 
point is that earmarking is more than the Appropriations Committee. Is 
this an earmark that they stick in a conference report, where it is not 
in the

[[Page 2430]]

House or Senate bill, that changes one of the basic rights Americans 
have guaranteed by our Constitution--a writ of habeas corpus? Yes. It 
is wrong. So if you want something about earmarks, let's not just focus 
on the Appropriations Committee.
  I have talked about the flaws, and I am satisfied, in spite of them, 
that the conference report, as improved by Senator Sununu, is a step in 
the right direction and certainly better than the original PATRIOT Act.
  Let me say a word about the relationship between the current debate 
on the PATRIOT Act and the continuing controversy over unlawful 
eavesdropping by the National Security Agency. On the same day we voted 
on the PATRIOT Act conference report last December, when the conference 
report wasn't allowed to go forward, the New York Times reported that 
the President had authorized a secret program to eavesdrop on American 
citizens without warrants required by the Foreign Intelligence 
Surveillance Act. That story had a clear impact on the vote that day, 
as it well should have. There was some question why we were even having 
this protracted debate over the PATRIOT Act, since the President seemed 
to believe he was free to ignore the laws we enact anyway. But, in 
fact, no one is above the law--not even the President of the United 
States. One lesson of the NSA spying scandal is that Congress must 
stand up to the President and must insist on additional checks on the 
powers exercised by the executive branch. That is what we are doing 
today with this PATRIOT Act.
  In addition to what we have here with the PATRIOT Act and NSA spying, 
now we have this Dubai port security, I think, scandal, on which the 
final decision was made by the Secretary of the Treasury, not the 
Secretary of Homeland Security. Whenever this administration is faced 
with a decision that affects the business community or the national 
security, the homeland security of this country, they always go with 
business.
  Why wasn't the Secretary of Homeland Security the one who signed off 
on that? These companies control the perimeters of these facilities; 
they decide who does the background checks. The debate over the PATRIOT 
Act and over NSA wiretapping and the Dubai port situation is all about 
checks and balances. That is what this is about. They go to the heart 
of our system of separation of powers.
  Today, we give the Government the tools it needs to help protect our 
national security, while placing sensible checks on the arbitrary 
exercise of Executive power.
  So today, when this bill passes, I hope everybody will understand 
that I am saying that I am voting for this conference report because I 
think it improves the original PATRIOT Act, not because it is perfect. 
It is far from perfect.
  I hope this administration--even though the President is in faraway 
India--gets the word that what is going on in this country with what I 
believe are constitutional violations is inappropriate. We need to get 
back to doing what is right for this country, following the 
Constitution and reestablishing the legislative branch of Government as 
a separate and equal branch of Government.
  Mr. BYRD. Mr. President, how long am I recognized for?
  The PRESIDING OFFICER (Mr. Vitter). The Senator from West Virginia is 
recognized for up to 35 minutes.
  Mr. BYRD. I thank the Chair.
  (The remarks of Mr. Byrd pertaining to the introduction of S. 2362 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')


                             prescribed PSE

  Mr. TALENT. Mr. President, I rise today to engage the distinguished 
chairman of the Judiciary Committee, Senator Specter, in a colloquy 
regarding the intent of the Combat Methamphetamine Act of 2005.
  Section 701 of the PATRIOT Act of 2005 establishes restrictions on 
the sales of precursor chemicals used to manufacture methamphetamine. 
As you know, the methamphetamine abuse and trafficking problem is 
growing in our country, and this legislation will help to combat the 
epidemic.
  The methamphetamine control provisions of the act are intended to 
address those precursor chemicals sold without a prescription.
  I know that Chairman Specter and I agree that exempting 
pseudoephedrine products provided via a legitimate prescription is 
critical. Physicians and other health care providers sometimes 
prescribe pseudoephedrine products in amounts that could violate the 
daily and monthly limits included in this legislation.
  Patients who need more pseudoeph-
edrine than the law would allow need the option of getting 
pseudoephedrine under a prescription, and Senator Specter and I agree 
that the methamphetamine provisions should not impede the care of 
legitimate patients. Our new requirements focus on products purchased 
outside the current prescription process. We are seeking to stop the 
bad actors from manufacturing and trafficking methamphetamine and have 
no desire to prevent proper patient care. Many States that have enacted 
laws to combat the methamphetamine epidemic have also included this 
type of exemption. It just makes sense.
  Mr. SPECTER. Mr. President, I would say to my colleague from Missouri 
that physicians should not be forced to change what are common and 
appropriate prescribing patterns in an effort to stop the manufacturing 
and trafficking of methamphetamine.
  The Senator from Missouri is correct. The Combat Methamphetamine Act 
provisions in the PATRIOT Act are intended to address over-the-counter 
sales, not pseudoephedrine products provided under a valid 
prescription. It is my expectation that these new restrictions apply 
only to pseudoeph-
edrine products provided to consumers without a prescription.
  Mr. TALENT. I thank the distinguished chairman for this 
clarification.
  Mr. KERRY. Mr. President, over the course of this week, the Senate 
has had a series of votes on the PATRIOT Act conference report as well 
as on a bill amending the conference report introduced by Senators 
Sununu, Craig, Murkowski, and Hagel.
  Last December, I voted against cloture on the PATRIOT Act 
reauthorization conference report. I did not cast that vote because I 
oppose reauthorizing the PATRIOT Act--I supported the PATRIOT Act then 
just as I do now. I voted against cloture on the conference report 
because I believed that it did not adequately protect our civil rights 
and liberties. Supporters of the conference report believed that you 
had to choose between two extremes: taking a tough stand on terror and 
protecting our fundamental constitutional rights. I thought you could 
accomplish both at the same time.
  On February 28, 2006, I voted against cloture on the Sununu 
compromise bill, S. 2271, vote No. 22, because of procedural measures 
taken by the majority to prevent Senator Feingold--or any other 
Senator--from offering amendments. Senator Feingold's four proposed 
amendments would have improved the Sununu compromise and addressed more 
of the concerns I had with the conference report. They would have, No. 
1, ensured that section 215 orders to produce sensitive library, 
medical, and other business records would be limited to individuals who 
had some connection to terrorism; No. 2, ensured that judicial review 
of section 215 gag orders and National Security Letter, NSL, gag orders 
is meaningful; No. 3, sunsetted the NSL authorities after 4 years; and 
No. 4, required notification of sneak-and-peek search warrants within 7 
days of the search rather than within 30 days. I believe that each of 
these amendments would have improved both the Sununu compromise bill 
and the conference report. Regardless of whether my colleagues agree 
with me on that, I believe the Senate should have been given the 
opportunity to vote on them.
  On March 1, 2006, the Senate conducted a series of votes, both 
procedural and substantive on the Sununu compromise bill and the 
PATRIOT Act conference report. I voted to support

[[Page 2431]]

the Sununu compromise. I also voted to proceed to the motion to 
reconsider the conference report, to proceed to the conference report, 
and to invoke cloture on the conference report because, in my view, the 
Sununu compromise and the conference report come as a package deal. I 
support the two taken together, and for that reason, I also voted for 
the conference report today.
  I support the Sununu compromise bill because it makes some important 
improvements to the PATRIOT Act. First, it allows judicial review of a 
section 215 nondisclosure order 1 year after its receipt. Section 215 
of the PATRIOT Act allows the Government to obtain business records, 
including library, medical, and gun records among other things. Under 
the conference report, recipients of these section 215 orders were 
subject to an automatic permanent nondisclosure order which would have 
prevented them from bringing any court challenge. Under the compromise, 
a section 215 nondisclosure order is now subject to judicial review.
  Second, the conference report would have required recipients of 
National Security Letters, NSL, to identify their attorneys to the FBI. 
NSLs allow the Government to obtain, without a warrant, subscriber 
records and other data from telephone companies and Internet providers. 
The compromise removes that requirement so that recipients of NSL 
orders can seek legal advice without having to inform the FBI.
  Third, the compromise clarifies that the Government cannot issue NSLs 
to libraries unless the libraries provide ``electronic communications 
services'' as defined by the statute. Thus, libraries functioning in 
their traditional roles, including providing Internet access, are not 
covered.
  Even though this legislation does not address all of my concerns with 
the conference report, these compromise provisions are steps in the 
right direction and will be important components of the PATRIOT Act.
  I am proud to support this legislative package and am pleased we have 
reauthorized and improved the PATRIOT Act. I believe there is still 
more work to be done and will work with my colleagues; such as Senator 
Feingold and Senator Specter, on further improvements. For example, in 
a perfect world the PATRIOT Act would provide for more meaningful 
judicial review of section 215 gag orders as well as NSL gag orders. 
There is no reason to have a conclusive presumption against 
recipients--one that can only be overcome by a showing of Government 
bad faith. Nor is there any reason to prohibit judicial review of those 
gag orders until a full year has passed. They should be immediately 
reviewable, and, if there are any presumptions, they should be in favor 
of the privacy rights being invaded rather than the Government doing 
the invading.
  In a perfect world, the Patriot Act would require the subjects of 
section 215 business record disclosures to have some link to suspected 
terrorists. As I mentioned earlier, section 215 is expansive, and it 
allows the Government to obtain very sensitive, personal records. 
Simply requiring those records to be relevant to an authorized 
intelligence investigation, as the conference report does, is simply 
not enough. This standard will not prevent Government fishing 
expeditions.
  And, in a perfect world, the PATRIOT Act would have required the 
Government to notify victims of sneak-and-peek searches--unannounced 
and secret entries into the homes of Americans--within 7 days as the 
original Senate bill did. The 30- to 60-day timeframe is simply too 
long. People have a right to know when the Government has been in their 
house, searching through their things.
  Thus, I understand why some of my colleagues are disappointed with 
the compromise. They say that it does not go as far as the original 
Senate bill which was passed by unanimous consent, and they are right. 
But the fact is that the compromise does improve the original 
conference report. I believe the compromise was the product of good 
faith negotiations. It is not a perfect bill, but it is a step in the 
right direction. And I will continue to work with my colleagues so that 
we can create a more even balanced PATRIOT Act.
  Mr. ROCKEFELLER. Mr. President, I rise to speak in favor of the 
conference report on the PATRIOT Act Improvement and Reauthorization 
Act of 2005 and the accompanying measure to amend the Reauthorization 
Act. I commend the work of Senator Sununu and others in addressing 
several flaws in the measure reported by the conference in December. 
And I congratulate the hard work of Senators Specter and Leahy in 
leading the Senate's efforts to extend and improve the PATRIOT Act.
  I remain disappointed, however, in the process followed by the House-
Senate conference, which not only excluded Democratic Members from key 
meetings and deliberations but also excluded the public. Sadly, the 
deficient process of the PATRIOT Act conference is characteristic of 
the manner in which too many conferences have been conducted in recent 
years.
  Nevertheless, overall, adoption of the conference report, along with 
the accompanying improvements contained in the Sununu bill, will not 
only extend the PATRIOT Act but make it a stronger, more balanced tool 
in our fight against terrorists. I was one of the Senate's 10 
conferees: 6 Republicans and 4 Democrats. We were appointed from the 
leadership and ranks of the Senate Judiciary and Intelligence 
Committees, the two committees with a direct responsibility for 
reauthorizing the PATRIOT Act.
  The Senate conferees were appointed on July 29, 2005, immediately 
upon the Senate's passage by unanimous consent of the bill that had 
been unanimously reported by the Senate Judiciary Committee. I had 
expected that the conference with the House, which in July had passed a 
different reauthorization bill, would begin promptly on the return of 
the Congress at the beginning of this past September from last 
session's August recess. In fact, the House did not name its conferees 
until November 9.
  The conference met the following day, on November 10, for its one and 
only meeting. That meeting was devoted exclusively to 5-minute opening 
statements. In my opening statement to the conference, I stressed the 
importance of how we did our work. I urged that the conference proceed 
openly, including by considering amendments in public session. I warned 
that otherwise the Congress would risk losing an indispensable ally in 
the long-term effort to defend the Nation; namely, a public that has 
confidence in the necessity for and the balance of the PATRIOT Act.
  Unfortunately, our opening statements turned out to be our closing 
ones, because we never met again as a conference. The flawed process of 
the conference produced a flawed result. Because it fell short of what 
the conference could have achieved, I joined my fellow Senate 
Democratic conferees in not signing the conference report. We then 
joined a bipartisan coalition that opposed cutting off debate in 
December and insisted that there be a further effort to improve the 
bill. That additional time has been well spent.
  From the outset of the PATRIOT Act reauthorization debate, there has 
been neither division nor doubt in the Congress that we would unite in 
extending the investigative and information sharing powers that were 
enacted in the wake of September 11. Over this past year, as we have 
debated the checks and balances that should be added or strengthened, 
Republicans and Democrats alike have been prepared throughout to 
achieve what we have now accomplished, the extension of essential 
national security authorities.
  In most cases, those authorities have been made permanent. For a few, 
we have decided that a further review in 4 years is appropriate before 
deciding whether to make these authorities permanent as well. The 
PATRIOT Act reauthorization agreement now before us establishes or 
augments some notable checks and balances. We have responded to the 
concerns of librarians and booksellers by requiring high level F.B.I. 
approval of applications for orders requiring the production of 
records. And we also have required that any such applications to 
librarians and booksellers be reported to the Congress. The holders of 
other sensitive

[[Page 2432]]

records B concerning firearm sales, tax returns, education, and medical 
matters B also have enhanced protection.
  The Reauthorization Act also places in the law provisions for the 
judicial review of orders from the Foreign Intelligence Surveillance 
Court for the production of records. Similarly, it also places 
explicitly into law something that the courts have already begun to 
require; namely, procedures for judicial review of national security 
letters to businesses from the F.B.I. demanding that they produce 
records for investigators.
  I join others in the Senate and House in wishing that some of these 
provisions had been written in a more balanced way. Specifically, I am 
concerned that some of the new judicial review procedures tilt in a 
one-sided manner toward the Government and may not give the individuals 
and businesses who may seek relief a fair opportunity to make their 
cases. If Congress promises citizens judicial review, it ought to 
deliver fully on that promise. Some of those imbalances may have to be 
addressed by the courts or in future legislation.
  The additional time to reach a PATRIOT Act agreement also gave us the 
opportunity to change other objectionable provisions of the original 
conference report. The report had contained a requirement that the 
recipients of orders for the production of documents from the Foreign 
Intelligence Surveillance Court or by a national security letter advise 
the F.B.I., on its request, of the name of any attorney they contacted.
  This would have been the first time, to my knowledge, that Congress 
had empowered the F.B.I. to demand that a citizen, who has been 
presented with a demand by the Government, inform the F.B.I. that he or 
she has spoken to an attorney and be required to give the F.B.I. the 
lawyer's name. I found that this intrusive provision, which we were 
told that the Department of Justice had insisted upon, to be 
inconsistent with basic American values. I am especially gratified that 
Senators Sununu, Craig, Murkowski, and Hagel were able to persuade the 
White House to strike this misguided provision.
  Congress has an abiding commitment to provide our law enforcement and 
intelligence personnel with the tools and authorities they require to 
protect America. The Foreign Intelligence Surveillance Act and the 
PATRIOT Act are prime examples of that commitment. And it is a 
commitment that is not just a one time thing. Congress has returned 
repeatedly to these statutes to add new authorities or enhance existing 
ones.
  In that process, any of us, as individual legislators, may not 
achieve all of what we want, but collectively we fulfill our oversight 
responsibilities by inquiring, debating, voting, and conducting 
oversight concerning the powerful tools that a President, whomever it 
may be at the time, believes that our law enforcement and intelligence 
officials need to protect America.
  This process has not been followed, unfortunately, with respect to 
the NSA warrantless surveillance program inside the United States 
recently disclosed and acknowledged by the President. The 
administration continues to withhold important facts about the NSA 
program and, in turn, has prevented Congress from understanding the 
program and evaluating whether it is both legally and operationally 
sound. If a President refuses to deal with the Congress as a co-equal 
branch of Government, then the Congress cannot fulfill its 
responsibility on behalf of the people to ensure that the executive 
branch is acting under the rule of law.
  For the PATRIOT Act, this is not the end of the process. We have an 
obligation to be vigilant in our oversight. And we will be returning to 
the act no later than 4 years from now when the remaining sunsets 
expire, in order to consider reauthorization legislation for those 
authorities.
  During this time, the Senate Select Committee on Intelligence, of 
which I am vice chairman, will continue monitoring how the authorities 
contained in the PATRIOT Act are used to ensure that we have struck the 
proper balance between empowering our counterterrorism efforts while 
not infringing upon the civil liberties of Americans.
  Mr. KENNEDY. Mr. President, for months, we have been ready to roll up 
our sleeves and get back to work on the PATRIOT Act, but the White 
House has continued to block bipartisan efforts to improve the original 
bill and accept oversight of its intrusive surveillance programs. 
Again, and again, the administration has refused to join in serious 
negotiations with Republicans and Democrats on matters of national 
security, including the National Security Agency's warrantless wiretaps 
and the FBI's use of national security letters. The latest proposal 
offers improvements and deserves to pass; however, it is unacceptable 
and undemocratic that further amendments could not even be considered.
  We need to implement these improvements quickly given the 
administration's disregard of congressional oversight. The proposed 
reauthorization bill requires public reports on the use of two of the 
most controversial provisions: section 215 and national security 
letters. It also requires the inspector general to audit their use, and 
it mandates a report on any data-mining activities by the Justice 
Department.
  Americans deserve national security laws that protect both our 
security and our constitutional rights, and more changes are clearly 
needed. One of the most glaring omissions in the proposal is the 
failure to include a 4-year sunset provision on national security 
letters, even though it would be consistent with the new reporting and 
auditing requirements that will take effect.
  The latest changes provide some additional protection for libraries, 
but these safeguards should apply to all of the means used by the 
Government to obtain sensitive information, including financial 
documents and library records. We also need a report on the 
Government's use of computerized searches from all Federal agencies, 
and we will continue to seek such a requirement as part of efforts 
toward other reforms.
  We have not yet achieved the 9/11 Commission's goal to maintain 
governmental powers that enhance our national security while ensuring 
adequate oversight over their use. With so much at stake, the 
administration's refusal to work with Congress can only weaken our 
national security and further undermine the public's trust in their 
Government. So this battle will go on, and I regret we could not 
accomplish more in this needed legislation.
  Mr. BINGAMAN. Mr. President, I rise today to speak in opposition to 
the PATRIOT Act conference report.
  As I have stated in the past, I strongly support giving law 
enforcement the tools they need to aggressively fight terrorism. But I 
also believe that we must ensure that we adequately protect 
constitutional rights and properly balance civil liberties with 
national security concerns.
  I support reauthorizing many of the expiring provisions of the 
PATRIOT Act, but I believe we need to make some important changes to 
ensure that Americans' civil liberties are protected. When the Senate 
debated this issue last July, I supported the bipartisan compromise, 
which unanimously passed the Senate, to reauthorize the expiring 
provisions of the PATRIOT Act. Unfortunately, many of the improvements 
that were made were later removed at the insistence of the White House 
and the House of Representatives. I cannot in good conscience support a 
reauthorization bill that is fundamentally flawed and lacks basic 
safeguards with regard to the rights of Americans.
  The final compromise that was worked out, including the conference 
report and the bill offered by Senator Sununu, falls short in several 
respects. First, it does not address the problems with section 215, 
which allows the Government to obtain sensitive personal records, such 
as library, medical, or business records, as long as the Government 
submits a statement indicating that the documents are relevant to a 
terrorism investigation. I, along with many other Senators, have 
pressed to modify this standard to require that the Government show 
that the documents sought are actually relevant to the activities of a 
terrorism

[[Page 2433]]

suspect or the activities of a person in contact with the suspect.
  It is reasonable to require that if the Government is going to look 
at the private records of Americans that the Government demonstrate 
that the request for records has some actual connection to a terrorist 
and isn't just part of a fishing expedition. The final compromise does 
not include any significant improvements with regard to the standard 
for issuing section 215 orders.
  The conference report also falls short with respect to section 215 
gag orders. Under the PATRIOT Act, when a section 215 order is 
issued,the receipt of an order, such as a library or doctor, is 
automatically prohibited from disclosing that the FBI is seeking the 
records. In addition, under current law there is no explicit right to 
petition a court to modify or quash a gag order. The conference report 
still provides for an automatic gag order and prohibits judicial 
review, but specifies that a recipient of a section 215 gag order may 
disclose its existence to an attorney to obtain legal advice.
  Although the Sununu bill the Senate passed earlier this week as part 
of the final compromise technically allows for judicial review of a 
nondisclosure order and permits a recipient to challenge the gag order 
before a FISA judge, this is merely an illusionary right and does not 
provide any meaningful review. A recipient must wait 1 year to 
challenge the gag order and the judge may overturn the order only if 
there is no reason to believe the disclosure will endanger national 
security. However, because the Attorney General may certify that the 
disclosure may endanger national security and a judge must treat this 
certification as conclusive unless the Government is found to be acting 
in bad faith, it would be almost impossible to ever successfully 
challenge a gag order.
  I also have significant concerns with respect to national security 
letters, or NSLs. National security letters are essentially formal 
requests made by Federal intelligence investigators to communication 
providers, financial institutions, and credit bureaus to provide 
certain consumer information relating to a national security 
investigation. The issuance of an NSL does not require any judicial 
oversight. The laws explicitly permitting NSLs were meant to prevent 
financial institutions from being held liable for disclosing private 
financial information in contravention of Federal privacy laws. NSLs do 
not require any court approval, and since 9/11 the Government has 
increasingly relied on them to obtain information as part of terrorism 
investigations. Like recipients of section 215 orders, NSL recipients 
are subject to an automatic gag order. At least two Federal district 
courts have found that NSL gag order restrictions and the lack of 
judicial review amount to constitutional violations under the fourth 
and first amendments.
  The conference report attempts to address constitutional problems 
regarding NSLs by authorizing judicial review of NSLs and providing the 
ability to challenge a nondisclosure order. However, while recipients 
are technically given the ability to go to court, the right is 
essentially meaningless. The conference report does allow an NSL 
recipient to challenge the validity of an NSL in a district court, but 
it also stipulates that all of the Government's submissions are secret 
and cannot be shared with the person challenging the order. In 
addition, although the gag order can be challenged in court after 1 
year, like section 215 challenges, the only way to prevail is to 
demonstrate that the Government is acting in bad faith because the 
Government's certification that disclosure would harm national security 
is conclusive.
  The final compromise included in the Sununu bill does not address the 
significant problems with the NSL process, but rather makes some minor 
improvements with regard to NSLs. Under the compromise, it would remove 
the requirement that a person inform the FBI of the identity of an 
attorney providing advice to a NSL receipt. The compromise also 
clarifies that libraries are not subject to NSLs. Libraries, however, 
would remain subject to section 215. I believe the compromise fails to 
provide meaningful judicial review of NSL orders.
  Finally, I also believe we missed an important opportunity to address 
the so called sneak-and-peek provision, which allows the Government to 
search homes without notifying individuals of the search for an 
extended period of time after the search.
  Many of my colleagues have come to the Senate floor and stated that 
they share the same concerns that I do with regard to the shortcomings 
of this current compromise. Senator Sununu, who has been instrumental 
in negotiating this compromise with the White House, and Senator 
Specter, the chairman of the Senate Judiciary Committee, have indicated 
their intention to push legislation aimed at modifying the PATRIOT Act 
in a manner consistent with the bipartisan bill that the Senate 
unanimously passed in July.
  Although I support these efforts, and I intend to support legislation 
that would make these modifications, I am under no illusion that the 
Senate will take up any of these bills in the near future. Having just 
finished debate on the PATRIOT Act, I do not believe that Congress 
would have much of an appetite to take up this issue again. We had our 
opportunity, and, unfortunately, we missed it.
  The changes that I would like to see made have the support of the 
majority of Senators--indeed, they were included in the bill that 
unanimously passed the Senate. However, because the majority leader 
knew that these sensible changes would garner wide support, he used 
procedural maneuvers to prevent any Senator from offering an amendment 
to fix the bill. Had these amendments been adopted, which I think it is 
fairly clear they would have, I would have voted for the conference 
report without hesitation.
  While I recognize that this bill will make some slight improvements 
with respect to the PATRIOT Act, we have missed a critical opportunity 
to address the primary issues that have concerned the American public. 
As I have discussed, the Government can still access the library 
records and medical records of Americans without having to show that 
the documents sought have some connection to a suspected terrorist or 
the activities of a terrorist. The conference report simply failed to 
address the core shortcomings of some of the provisions in the PATRIOT 
Act.
  I supported the improvements in the Sununu bill, but the analogy I 
would use is this: If you need to fix the broken windows on your house 
and the repairman comes along and paints your house instead--has your 
house been improved? I would say yes, but your windows are still 
broken. It is time for Congress to address the primary problems with 
the PATRIOT Act, and it is my hope that we can eventually enact 
commonsense reforms that enable the Government to fight terrorism in a 
manner consistent with our Nation's historic commitment to upholding 
basic civil liberties. I truly believe that the American people expect 
more of Congress with regard to the approach we have taken in ensuring 
our national security while at the same time protecting the liberties 
of Americans.
  Mr. SALAZAR. Mr. President, I discuss the pending reauthorization of 
the USA PATRIOT Act.
  We are near the end of what has been a very long process. For the 
past year, Congress has grappled with the need to renew a handful of 
provisions of the PATRIOT Act. As my colleagues know well, this 
legislation has embodied the debate over how to balance the needs of 
law enforcement in the war on terrorism and the paramount importance of 
protecting Americans' civil liberties.
  The greatest Americans have always understood our shared 
responsibility as citizens of this great country to ensure that we get 
this balance right. And many times over the course of the debate about 
the PATRIOT Act, I have thought of Benjamin Franklin's words, ``They 
that can give up essential liberty to obtain a little temporary safety 
deserve neither liberty nor safety.'' I have thought about how Daniel 
Webster reminded us that ``God grants liberty only to those who love 
it, and are always ready to guard and defend it.'' I

[[Page 2434]]

believe that it is worth taking pains to be sure that we produce the 
very best balance, and the very best legislation, we can.
  Last week, several Senators with whom I have worked closely over the 
past year announced that they had reached an agreement with the White 
House on a proposal to renew these controversial provisions.
  Let me say at the outset that I do not believe this agreement is by 
any means perfect. My colleagues who were involved in negotiating this 
compromise would be the first to agree with me on that point.
  But it does contain a number of critical improvements over the 
original law. Our ultimate goal was to place reasonable checks on the 
law enforcement powers provided by the original PATRIOT Act. Although 
it is not as strong in some areas as I would prefer, the legislation 
today accomplishes that goal.
  This proposal would produce a PATRIOT Act that includes a number of 
specific improvements over the law that was passed 4 years ago.
  Section 215 of the original PATRIOT Act allowed the government to 
obtain business, library, and a whole host of other personal records 
simply by claiming the records were related to a terrorism 
investigation. The current proposal provides greater protection for the 
most sensitive records, by requiring senior level FBI-approval for 
orders related to library, book, education, gun, medical or tax 
records, and by limiting the retention and dissemination of information 
regarding Americans.
  The original law did not provide for judicial review of Section 215 
orders, National Security Letters, or for the accompanying gag orders. 
The current proposal does.
  The original law did not allow the recipient of a Section 215 order 
or a National Security Letter to consult with an attorney. The current 
proposal does.
  The original law allowed delayed notification of property searches--
so-called ``sneak-and-peek'' searches--for undefined ``reasonable'' 
periods. The current proposal establishes hard limits on those delays, 
while continuing to allow extensions when they are warranted.
  The original law allowed the government to target libraries with 
National Security Letters. The legislation exempts libraries from NSLs 
unless they meet the statutory definition of an Electronic 
Communications Service Provider.
  The original law allowed the use of ``John Doe'' roving wiretaps, 
which don't specify the target or the phone or computer. The current 
proposal imposes limits on the use of such wiretaps.
  Finally, the current proposal once again sunsets the Act's most 
controversial provisions--Section 215 and roving wiretaps--in 4 years, 
increases public reporting requirements about the use of the powers 
authorized by the Act, and requires the Inspector General in the 
Department of Justice to audit the use of Section 215 and National 
Security Letters.
  These safeguards are not simply cosmetic; they make meaningful 
improvements to the original law, and will go a long way toward 
protecting Americans' rights and freedoms.
  In spite of these safeguards, the proposal before us is not perfect. 
I would have preferred a stronger standard for obtaining a search order 
under Section 215. I would have preferred that the expanded authority 
to issue National Security Letters be sunset. But we will have the 
opportunity to review these provisions--both with the sunsets contained 
in this legislation and its increased reporting and auditing 
requirements. I am committed to taking advantage of those provisions to 
fight for strong and appropriate civil liberties safeguards, and I know 
my colleagues are, too.
  I joined with colleagues on both sides of the aisle to push for the 
very best PATRIOT Act we could realistically get. We have come to the 
point where the very best achievable version of the PATRIOT act is the 
one before us.
  I thank Senators Craig, Durbin, Sununu, Feingold, and Murkowski--my 
fellow SAFE Act cosponsors--for all of their hard work over the past 
several years on this critical issue. Without their efforts, we would 
not have the civil liberties protections contained in this proposal. I 
express my sincere gratitude for allowing me to become involved in 
these efforts.
  The vote on this agreement by no means marks the end of this process. 
Whether or not we differ on the legislation before us, I know we will 
continue to work together to provide law enforcement with the tools 
they need to fight terrorists, and to protect and preserve Americans' 
basic rights and freedoms.
  That has been, and will continue to be, a fight that demands our most 
vigorous efforts.
  Mr. AKAKA. Mr. President, I oppose the conference report for H.R. 
3199, the USA PATRIOT Improvement and Reauthorization Act of 2005. This 
bill does not protect the cherished civil liberties and freedoms of the 
American people.
  I voted for the PATRIOT Act in 2001. I believed then, as I do now, 
that we must give our Government the tools it needs to fight, detect, 
and deter terrorist acts. While I had reservations about the PATRIOT 
Act and the possibility that it would allow the Government to infringe 
upon our privacy rights and civil liberties, I supported the bill since 
the more controversial provisions were not made permanent. Granting the 
Government this time-limited authority allowed Congress an opportunity 
to review how these broad new grants of power were being used.
  Unfortunately, the administration has been less than forthcoming in 
disclosing how the PATRIOT Act has been used. According to the reports 
we have received, the Government has used the PATRIOT Act to:

       investigate and prosecute crimes that are not terrorism 
     offenses;
       investigate individuals without having any cause to believe 
     the person is involved in terrorist activities; and
       coerce Internet Service Providers, ISP, to turn over 
     information about email activity and web surfing while 
     preventing the ISP from disclosing this abuse to the public. 
     This information is disturbing and may be indicative of other 
     abuses that the Justice Department has not told us about.

  Given these abuses, meaningful checks and balances on the 
Government's authority to investigate Americans are essential. Last 
July the Senate agreed by unanimous consent to reauthorize the PATRIOT 
Act with substantially stronger protections in place. However, the 
Republican-controlled House of Representatives objected to the Senate 
bill and tried to pass a conference report lacking the protections that 
the Senate insisted upon. Last month, a compromise bill was introduced, 
S. 2271, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 
2006.
  I voted for S. 2271 because it is an improvement over the PATRIOT 
Act. Any improvement is good. However, S. 2271 does not go far enough 
to correct the flaws in the PATRIOT Act and convince me that the 
changes made to the underlying bill will preserve our civil liberties. 
S. 2271 will make explicit the right to counsel and the right to 
challenge in court an order from the Federal Bureau of Investigation, 
FBI, to turn over records sought in an intelligence investigation, 
called section 215 orders, but it does not correct the underlying 
standard for issuing these orders. As such, the FBI, after going before 
the Foreign Intelligence Surveillance Act, FISA, Court, can demand a 
wide array of personal information--including medical, financial, 
library, and bookstore and gun purchase records--about an individual 
without any cause to believe the person is involved in terrorist 
activities. S. 2271 does provide an express right to challenge the gag 
order that accompanies a Section 215 order, but only after waiting a 
year. However, if the Government certifies that the disclosure would 
harm national security, the gag order cannot be lifted.
  S. 2271 would also remove the conference report's language requiring 
recipients of National Security Letters, NSLs, to inform the FBI of the 
name of any attorney they consult about the demand for financial or 
Internet records. NSLs can be issued without FISA Court review. Again 
the bill still

[[Page 2435]]

does not require that there be any connection between the records 
sought by the FBI and a suspected foreign terrorist or person in 
contact with such a target. This is especially troubling since news 
reports show that 30,000 NSLs are issued by the Government per year, a 
hundred-fold annual increase since the PATRIOT Act relaxed requirements 
on the FBI's use of the power.
  In 2003, the State legislature in my home State of Hawaii passed a 
resolution reaffirming its commitment to civil liberties and called the 
entire Hawaii congressional delegation to repeal any sections of the 
PATRIOT Act that limit or violate fundamental rights and liberties 
protected by the Constitution of the United States. In good conscience 
I cannot vote to support the PATRIOT Act because I believe that it 
allows the Government to infringe upon the rights and protections we 
hold most dear.
  I do not believe that the PATRIOT Act makes our Nation safer. It 
makes our country weaker by eroding the very freedoms that define us. 
As Thomas Jefferson said, ``The man who would choose security over 
freedom deserves neither.'' I am afraid that by passing this 
legislation today we will in fact have neither a more secure nation nor 
the freedoms for which we are fighting.
  Mrs. BOXER. Mr. President, I voted for the conference report because 
on balance I believe it is necessary legislation to give our law 
enforcement officials the tools they need to protect the American 
people from terrorist attacks. Before the Patriot Act, various law 
enforcement agencies did not have the ability to share information and 
work together, and this was a vulnerability that needed to be fixed 
after
9/11.
  But this was a difficult decision. The bill had flaws, and two in 
particular concern me the most the so-called ``sneak and peek'' and 
library search provisions. Given my concerns about these provisions, I 
voted for every opportunity to make further improvements to the bill.
  But ultimately I believe that by voting for the conference report I 
will be in a stronger position to help improve the Patriot Act in the 
future, working with Judiciary Committee Chairman Specter, Ranking 
Member Leahy and Senators Feingold and Sununu.
  I also wanted to show my support for Senator Dianne Feinstein's anti-
methamphetamine bill, which was included in the conference report. Meth 
has become a terrible scourge across our country and Senator 
Feinstein's bill will go a long way to combat the spread of the drug by 
restricting access to the ingredients used to make meth.
  Mr. DURBIN. Mr. President, I am pleased that this conference 
agreement includes important provisions which will provide critical new 
tools and resources to help combat methamphetamine--one of the 
deadliest, most powerfully addictive, and rapidly spreading drug 
threats facing our country. Fighting meth requires a comprehensive 
approach designed to assist States, local law enforcement and 
prosecutors to crack down on cooks and traffickers of meth while 
bolstering community education and awareness and expanding treatment 
options for those addicted to this dangerous drug. As a cosponsor of 
the underlying Combat Meth Act that was incorporated in this conference 
agreement, I believe our action today is long overdue.
  In my home State of Illinois, the meth scourge, especially in rural 
areas, is egregious. Like many States, Illinois faces the daunting 
challenge of trying to stay one step ahead of those who will go to any 
length to procure the ingredients to make their drugs.
  Just a year ago, a law took effect in Illinois which required placing 
adult-strength cold tablets containing ephedrine or as their only 
active ingredient behind store counters. The law also limited to two 
packages per transaction the purchase of adult-strength cold tablets 
containing ephedrine or pseudoephedrine as the sole active ingredient 
and tablets with ephedrine or pseudoephedrine in combination with other 
active ingredients. Additionally, the law required education and 
training for retail sales personnel. At that time, the Illinois law was 
among the toughest in the Nation and the strongest law among our border 
States.
  However, after that date, several States passed laws more restrictive 
than the Illinois law, and reports from law enforcement authorities 
indicated that meth makers from Missouri, Iowa, Kentucky and nearby 
States were coming to Illinois to purchase products. Incidents such as 
these led to enactment in November 2005 of the Methamphetamine 
Precursor Control Act to impose stricter controls on the display and 
sale of cold and sinus products containing meth's key ingredient 
pseudo-
ephedrine. The Attorney General of Illinois, Lisa Madigan, has 
instituted and operates an aggressive anti-meth program in partnership 
with law enforcement agencies and multi-country drug task forces.
  The facts and figures about the devastating impact of meth in 
Illinois underscore why our actions today to advance tough new 
provisions and funding authorization are so vital.
  The number of meth labs seized by law enforcement authorities in 
Illinois grew from 24 labs in 1997, to 403 labs in 2000, to 1,099 labs 
in 2003. Illinois State Police reported 962 lab seizures in 2004 and 
nearly 1000 meth labs in 2005, more than double the number uncovered in 
2000. Since 1997, the quantity of methamphetamines seized annually by 
the ISP has increased over tenfold.
  The number of methamphetamine submissions to the Illinois State 
Police crime laboratories increased from 628 in 1998 to 3,250 in 2003--
more than a five-fold increase. The number of counties submitting meth 
also increased during that period, from 73 in 1998 to 96 in 2003. In 
2004, Byrne grants helped Illinois cops make almost 1,267 meth-related 
arrests and seize approximately 348,923 grams of methamphetamines. 
Local police departments depend on Byrne grant funding to participate 
in meth task forces which tackle the meth problem by coordinating the 
enforcement and interdiction efforts of local agencies within regional 
areas. In fact, over 65 percent of Illinois's Byrne funding in 2004 
went to local law enforcement agencies.
  The Southern Illinois Enforcement Group pays almost half of its 
agents with funding from Byrne grants. In 2004, this regional task 
force was responsible for more than 27 percent of the State's meth lab 
seizures. In a recent success of Byrne grant funding, Glen Carbon 
Police coordinated with the Illinois State Police Meth Task Force to 
discover the largest lab in the village's history. In this incident, 
local authorities raided a meth lab that proved to be capable of 
producing up to 6,000 grams of finished methamphetamine. Given examples 
such as this, it is baffling that this administration seeks to 
eliminate these critical funds in its budget proposal.
  Methamphetamine is the only drug for which rural areas in Illinois 
have higher rates of drug seizures and treatment admissions than urban 
areas. Meth use, and the number of people behind bars for possessing, 
making or selling it, has grown rapidly over the past decade in 
Illinois. Just 5 years ago, 79 inmates entered State prisons on meth 
offenses. Last year, that number was 541. In fiscal year 2003, rural 
counties accounted for the vast majority, 79 percent, of persons 
sentenced to prison for meth-related offenses. The number of treatment 
admissions relating to methamphetamine abuse in Illinois jumped from 97 
in 1994 to 3,582 in 2003.
  Another disturbing implication is the effect on families. In 2004, 
more than half of the children entering foster care in some areas of 
rural southeastern Illinois were forced into the program because their 
caretakers were meth abusers. Officials expect to encounter even more 
children in homes where meth labs exist in coming years.
  When specific regions were examined, findings indicate that rural 
counties have experienced the greatest impact of methamphetamine. Rural 
counties have been greatly impacted by the presence and growth of 
methamphetamine, and are responsible for driving the escalating levels 
of methamphetamine arrests, drug seizures and submissions, clandestine 
lab seizures, methamphetamine commitments to Illinois Department of 
Corrections and

[[Page 2436]]

methamphetamine treatment admissions.
  Illinois Criminal Justice Information Authority statistics show that 
in 2003, the per capita occurrence of clandestine meth labs in rural 
counties was over 1700 percent greater than it is in non-rural areas. 
The per capita presence of meth in rural areas in over 500 percent 
greater than it is in non-rural areas; more than 73 percent of meth 
labs found in the State of Illinois were found in rural counties. Of 
366 felony arrests in Edgar County, IL, 145 were for methamphetamine.
  But urban areas are not immune to the meth crisis. The perception 
that meth labs are a rural issue ended when a major meth lab was 
discovered in a Chicago apartment building last September. The 
challenge we face is overwhelming and our actions today signal a 
commitment to support a concerted effort to tackle this urgent criminal 
justice and public health and safety challenge.
  I commend the tireless and tenacious leadership of Senators Talent 
and Feinstein who have labored long and hard to secure passage of a 
strong Combat Meth Act. I look forward to working with them to ensure 
that full funding is provided to implement these new tools and provide 
the needed resources to localities grappling with this drug crisis.
  Mr. LEVIN. Mr President, when the PATRIOT Act reauthorization bill 
left the Senate last July, we had a bill with provisions that protected 
both our security and our liberty. What came back to the Senate from 
the House-Senate conference committee was a bill that raised 
significant concerns for Senators from both sides of the aisle. As a 
result, the Senate did not vote to end debate in December, as Senators 
wanted more time to address those concerns.
  The PATRIOT Act conference report which is before us leaves major 
problems unaddressed. Among the conference report's flaws: Section 215 
of the PATRIOT Act permits the Government to seek court orders, to 
compel the production of any tangible thing, including library, medical 
and business records, in foreign intelligence investigations, including 
records of people who are totally innocent even of any allegation of 
impropriety. The conference report omits language in the Senate-passed 
bill establishing a reasonable standard for the FBI to obtain these 
sensitive records with Section 215 orders. And to make matters worse, 
the conference report permits the FBI to include gag orders that 
preclude the recipient from telling anyone they even received the 
order. The conference report does not even permit recipients to 
challenge those gag orders in court. Also, the conference report 
requires recipients section 215 orders to tell the FBI, if asked, from 
whom they have sought legal advice.
  Since December, there have been a number of efforts to improve the 
conference report. Unfortunately, those have met with limited success. 
The Sununu bill, if it passes the House of Representatives, would make 
only minimal improvements to the conference report that the Senate 
considered last December.
  The Sununu bill, if it passes the House, would eliminate the 
requirement that recipients of 215 court orders tell the FBI, if asked, 
whom they consulted for legal advice. This would be a worthwhile, if 
minor, improvement. The Sununu bill also provides people the right to 
challenge gag orders attached to so-called section 215 court orders. 
But the benefit of that is offset by the fact that the bill severely 
constrains the court's discretion to modify or set aside those gag 
orders.
  Some argue the conference report is an improvement over the original 
PATRIOT Act. The bill before us does indeed correct some of the flaws 
in the original PATRIOT Act. For example, the PATRIOT Act did not 
require that a roving wiretap order identify a specific target--raising 
concerns that it could authorize so-called John Doe roving wiretaps. I 
am pleased that the conference accepted language that I proposed to 
correct that flaw.
  However, too many flaws remain, the most serious of which is the 
standard of review section 215 court orders.
  As I said earlier, section 215 of the PATRIOT Act permits the 
Government to seek court orders, to compel the production of any 
tangible thing, including library, medical and business records, in 
foreign intelligence investigations. No problem there. However, under 
section 215, the Government need not describe, much less identify, a 
particular person to whom the records relate, even in general terms, as 
linked to a terrorist groups or organization. I believe that we ought 
to apply the same logic to section 215 orders that the conference 
report applies to roving wiretaps. We ought to require that records 
sought with section 215 orders have some connection to an alleged 
terrorist or terrorist organization. Unfortunately, the standard in the 
conference report does not include that. It fails to narrow the scope 
of records that the Government can subpoena under section 215 to less 
than the entire universe of records of people who, for instance, 
patronize a library or visit a doctor's office. Instead, fishing 
expeditions are authorized, which could result in invasions of the 
privacy of large numbers of innocent Americans.
  Let's assume the FBI has information that a person, whose identity is 
not known to the FBI, is using computers at New York public libraries 
to view certain Web sites.
  The FBI only knows that the person has knowledge of the particular 
Web sites. The person is not suspected of wrongdoing himself. The FBI 
wants to find out the person's identity as part of a foreign 
intelligence investigation into those Web sites. The agency believes 
that they might be able to identify the person if they could review all 
the computer user records held by public libraries in New York.
  The conference report would presumably permit the FBI to obtain a 
court order compelling the New York Public library to provide the 
records of all their patrons. That is truly a fishing expedition. The 
conference report would also allow the FBI to prohibit the library from 
telling patrons that their names had been handed over to the FBI. While 
the Sununu bill permits the library to challenge that prohibition in 
court, it does not permit meaningful court review because, under its 
terms, if the Attorney General or another specified senior official 
certifies that disclosure may endanger national security or harm 
diplomatic relations, the court must find bad faith on the part of the 
Government in making such certification for the court to modify or set 
aside the nondisclosure requirement. This virtually eliminates the 
court's discretion.
  Another example. Assume the FBI has information that a person, whose 
identity is not known to the agency, is sending money to charitable 
organizations overseas. They know from a credible source that the 
person is being treated for HIV at a particular AIDS clinic in New York 
that has 10,000 patients. The FBI wants to find out the person's 
identity as part of a foreign intelligence investigation into links 
between unspecified overseas charities and terrorist organizations. The 
agency believes that they might be able to identify the person if they 
could review the AIDS clinic's 10,000 patient files.
  The conference report would permit the FBI to obtain a court order 
compelling the AIDS clinic to provide the files of all of its patients. 
The conference report would allow the FBI to prohibit the AIDS clinic 
from telling its patients that their names had been handed over to the 
FBI. While the Sununu bill permits the clinic to challenge that 
prohibition in court, as I discussed earlier, it does not permit 
meaningful court review because the Attorney General's unilateral 
certification would have to be found by the court to have been made in 
bad faith for the gag order to be lifted.
  It is argued in response to the fishing expedition argument that the 
Government must set forth ``facts'' supporting a section 215 
application. But that requirement doesn't fix the fishing expedition 
flaw. I just set forth facts, in two hypotheticals. If those 
hypothetical facts would not support a broad search of the library or 
clinic's records, the supporters should say what language in the 
conference report would preclude a search.

[[Page 2437]]

  When this bill left the Senate, it contained protections against 
fishing expeditions. The Senate bill required a showing that the 
records sought were not only relevant to an investigation but also 
either pertained to a foreign power or an agent of a foreign power, 
which term includes terrorist organizations, or were relevant to the 
activities of a suspected agent of a foreign power who is the subject 
of an authorized investigation or pertained to an individual in contact 
with or known to be a suspected agent. In other words, the order had to 
be linked to some suspected individual or foreign power. Those 
important protections are omitted in the bill before us.
  Some kind of narrowing language needs to be included in the PATRIOT 
Act for section 215 orders, just as it was when this bill left the 
Senate. Without that language and that linkage, the PATRIOT Act 
authorizes the rankest kind of fishing expedition.
  The conference report is also flawed in its treatment of national 
security letters, or NSLs. NSLs compel phone companies and banks, for 
example, to turn over certain customer records. The Government can 
issue an NSL without going to court. And, like section 215 court 
orders, the Government does not have to show any connection between the 
records sought and an individual who the Government thinks is a 
terrorist. And like section 215 orders, the Government can impose a gag 
order on the recipient of an NSL. Also, in the case of NSLs, the 
conference report does not permit meaningful judicial review of those 
gag orders.
  Also troubling about the NSL authority is that there is no 
requirement that the Government destroy records acquired with an NSL 
that turn out to be irrelevant to the investigation under which they 
have been gathered. These are records that relate to innocent 
Americans, and the Government should be required to destroy them if 
they contain no relevant material.
  It is argued that while these protections were in the bill that left 
the Senate, they are not in current law. That is true. But the reason 
we put sunset provisions in the law is so we could more reliably make 
changes if experience indicated the need for change. We understandably 
acted quickly after 9/11 to fill some holes in our laws that needed to 
be filled. We added sunset provisions so we could review the law we 
wrote with the benefit of greater thought, in an atmosphere more 
conducive to protecting our liberties than understandably was the 
situation immediately after a horrific, wrenching, deadly attack.
  Finally, I must comment on a tactic used in this debate which runs 
against the very grain of the Senate. The majority leader used a 
procedural tactic to prevent any Senator from offering any amendment 
during consideration of the Sununu bill, amendments which could have 
addressed some of the flaws I just described. That tactic of stifling 
consideration of any amendment is contrary to the normal procedures of 
the Senate and reflects poorly on what is sometimes billed as the 
greatest deliberative body in the world. The rules of the Senate were 
written with the intent of allowing the consideration of amendments. In 
this instance, the rules were misused to block any effort to offer 
amendments. I voted against ending debate on the Sununu bill and 
against proceeding to debate on the PATRIOT Act conference report 
because no amendments were allowed to be considered.
  This conference report still falls short of what the American people 
expect Congress to achieve in defending their rights while we are 
advancing their security. As a result, although I support many of its 
provisions, I must oppose it.
  Mr. KYL. Mr. President, I rise today to comment on the USA PATRIOT 
Improvement and Reauthorization Act conference report. I support the 
conference report and, in particular, the conference report's 
amendments to section 215, the FISA business records provision, because 
those amendments confirm that investigators may use section 215 to 
obtain records and other tangible items that are relevant to any 
authorized national security investigation other than a threat 
assessment. The conference report appropriately balances privacy 
concerns and national security needs by amending the method by which 
investigators can obtain relevant records but not changing or otherwise 
limiting the scope of records that can be obtained through a section 
215 order. For example, where appropriate, investigators may still 
obtain sensitive records such as library or bookstore, medical, or tax 
return records, but they must obtain very high-level sign-off 
internally before asking the court to order those records' production. 
Similarly, the conference report imposes an obligation on the Attorney 
General to develop minimization guidelines for the retention and 
dissemination of U.S. person information obtained through a section 215 
order, but leaves the Department with flexibility in obtaining the 
information in the first instance and in structuring those minimization 
procedures.
  My support for the conference report turns on my understanding that 
it codifies our intent not to limit the scope of items and records that 
can be obtained through section 215. This stands in contrast to the so-
called ``three-part test'' that passed the Senate last year, which 
really did run the risk of limiting our investigators' ability to 
obtain records relevant to authorized national security investigations. 
The conference report is clear: we are continuing to provide our 
investigators with the tools they need. Along with two of my fellow 
conferees, Senators Roberts and Sessions, I sent a letter to Chairman 
Specter on the eve of the conference vigorously objecting to the 
Senate's proposed three- part test. As the three of us expressed in 
that letter, we believed that requiring use of the three-part test to 
show relevance would have been a serious mistake. I am pleased to see 
that the final conference report does not mandate the use of that test. 
I will have that letter added to the Record following my remarks.
  I support the conference report, including its amendments to section 
206 of the USA PATRIOT Act, which authorizes ``roving'' wiretap orders 
under FISA because I believe that the amendments to section 206 do not 
hamper investigators' ability to use this critical tool. In this day 
and age of sophisticated terrorists and spies who are trained to thwart 
surveillance, allowing investigators to seek a wiretap that follows a 
specified target--rather than a particular cell phone--is critical. The 
conference report explicitly preserves this ability, while clarifying 
the level of detail necessary for investigators to obtain this type of 
wiretap. Similarly, I support the conference report's amendments to 
section 206 because they recognize that there may be some situations 
where it will not be practicable for investigators to return to court 
within 10 days of directing surveillance at a new phone or place. The 
conference report wisely affords the FISA Court judges discretion to 
extend the period of time investigators will have to keep the court 
apprised of how roving wiretaps are being used.
  I support the conference report, and I support the amendments set out 
in S. 2271, because I think they set out the proper standard for 
judicial review of nondisclosure orders accompanying section 215 FISA 
business records orders and national security letters. We all recognize 
the need for secrecy in national security investigations--both to avoid 
tipping off targets in a particular case, and to avoid giving our 
enemies a better picture of how we conduct our investigations. Our 
enemies are sophisticated and devote enormous time and energy to 
understanding how we operate, all in service of allowing their agents 
to evade our investigations. The conference report recognizes the need 
for secrecy when the Government obtains a section 215 order from a 
court or serves an NSL on a business. But it also responds to concerns 
raised that recipients should have an explicit right to judicial review 
of nondisclosure orders.
  The standard in the conference report is the appropriate one, both 
constitutionally and practically, as it recognizes that sensitive 
national security and diplomatic relations judgments are particularly 
within the Executive's expertise. The Constitution has vested

[[Page 2438]]

these determinations with the Executive, and courts have long 
recognized that judges are ill-suited to be second-guessing the 
Executive's national security and diplomatic affairs judgments. 
Disclosures that seem innocuous to a judge who quite naturally must 
view those disclosures without being fully aware of the many other data 
points known to our enemies--may nonetheless be quite damaging. The 
conference report's standard is therefore the correct one. It will be 
the exceedingly rare case in which a judge will find, contrary to a 
certification by an executive branch official, that there is no reason 
to believe that the nondisclosure order should remain in place. It will 
be even rarer for a judge to find that one of the Senate-confirmed 
officials designated in the conference report has acted in bad faith.
  I could not have supported the conference report or the explicit 
judicial review of nondisclosure orders if I thought that they would 
give judges the power to second-guess the informed national security 
and diplomatic relations judgments of our high-level executive branch 
officials. The conference report makes clear that judges will not have 
such discretion, which is why I am voting for this report.
  Another provision in particular that I support is the new public 
reporting obligations for the FBI's use of national security letters. 
That reporting will allow Congress to better perform our oversight 
obligations without endangering national security. The reporting 
requirement is focused on what is the most relevant number to Congress 
and the public--the aggregate number of different U.S., persons about 
whom information is requested. The reporting requirement does not 
require the FBI to break down the aggregate numbers in its report by 
the different authorities that allowed the national security letters, 
which is critical to preventing our enemies from gaining too much 
information about the way we investigate threats to the national 
security. And the reporting obligation is limited to information about 
U.S. persons. I support this limited public reporting because I think 
it will provide valuable information for our public debate--but without 
revealing too much information about the FBI's use of this valuable 
tool and thus compromising its use.
  I ask unanimous consent that the November 3 letter to Chairman 
Specter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                 Washington, DC, November 3, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, Hart Senate Office 
         Building, Washington, DC.
       Dear Chairman Specter: We are writing to express our 
     concern about legislative language that we understand that 
     you are considering adding to section 215 of the USA Patriot 
     Act, the business-records provision of the Foreign 
     Intelligence Surveillance Act. We have learned that you have 
     discussed with Chairman Sensenbrenner the possibility of 
     adopting in the final bill a modified version of the three-
     part test for ``relevance'' that was added to the Senate bill 
     when it was marked up in the Judiciary Committee.
       We believe that adding the three-part test to the final 
     bill would be a serious mistake. We are deeply troubled by 
     the complications that this language might cause for future 
     anti-terrorism investigations. Given the continuing grave 
     nature of the terrorist threat to the United States, and the 
     complete absence of any verified abuses under the Patriot Act 
     since it was enacted, we believe that congress should be 
     strengthening, not diluting, the investigative powers given 
     to United States intelligence agents. We would have great 
     difficulty supporting a conference report that adds the 
     three-part test to section 215.
       As you know, Sec. 215 of the Patriot Act allows the FBI to 
     seek an order from the FISA court for ``the production of 
     tangible things (including books, records, papers, documents, 
     and other items) for an investigation to obtain foreign 
     intelligence information.'' FISA defines ``foreign 
     intelligence'' as information relating to foreign espionage, 
     foreign sabotage, or international terrorism, or information 
     respecting a foreign power that relates to U.S. national 
     security or foreign policy.
       Section 215 is basically a form of subpoena authority, 
     albeit one whose use requires pre-approval by a judge. As 
     then-Deputy Attorney General Comey noted, ``orders for 
     records under [Sec. 215] are more closely scrutinized and 
     more difficult to obtain than ordinary grand jury subpoenas, 
     which can require production of the very same records, but 
     without judicial approval.'' Similarly, the Washington Post 
     has noted in an editorial regarding Sec. 215 that similar 
     authority ``existed prior to the Patriot Act; the law extends 
     it to national security investigations, which isn't 
     unreasonable.''
       Some critics of the Patriot Act have noted that it 
     currently does not require a finding that a Sec. 215 order be 
     relevant to a foreign-intelligence investigation. The Justice 
     Department has conceded in litigation that a subpoena must be 
     relevant to a legitimate investigation, and both the Senate 
     and House bills add an explicit relevance requirement to the 
     Patriot Act.
       The final Senate bill goes further, however. The night 
     before the committee mark up of the bill, a set of additional 
     changes to the bill was proposed in order to address 
     continuing Justice Department concerns and to appease the 
     Democrats, who had filed in excess of 80 amendments to the 
     bill. This final managers' amendment included, among other 
     things, a three-part test for determining whether a Sec. 215 
     subpoena is, in fact, relevant to a foreign-intelligence 
     investigation.
       We appreciate the need to move this bill expeditiously and 
     to avoid an extended debate over amendments in the Judiciary 
     Committee. It had been our understanding, however, that the 
     last-minute changes that were made to the bill in order to 
     speed legislative progress would be re-evaluated in 
     conference. And we believe that the three-part test that was 
     added to Sec. 215 is unsound.
       The three-part test, as we understand its latest iteration, 
     would require the FBI to show, before a Sec. 215 subpoena may 
     issue, that there are reasonable grounds to believe that the 
     records that are sought either pertain to, are relevant to 
     the activities of, or pertain to an individual in contact 
     with or known to a suspected agent of a foreign power.
       We have several questions about the language of the three-
     part test. To begin with the first part, what does it mean 
     for information to ``pertain'' to a foreign power or its 
     agent? How is this standard different from the traditional 
     relevance test? Obviously, all foreign-intelligence 
     information in some way relates to a foreign power--FISA 
     expressly defines ``foreign intelligence'' in terms of 
     foreign powers and their activities. Does all information 
     that is relevant to a foreign-intelligence investigation 
     therefore also ``pertain'' to a foreign power? If it does, 
     what is the purpose of the three-part test? And if the two 
     standards are not co-extensive, what investigations are 
     blocked by the three-part test, and are these investigations 
     something that we want to block?
       Similarly, what is the scope of the ``activities'' of a 
     suspected agent of a foreign power? Does it include 
     activities in which one suspects that a foreign agent might 
     generally be involved, without regard to a specific subset of 
     dates, times, and locations? Also, has the FBI ever 
     subpoenaed records in the course of an intelligence 
     investigation that did not relate to the activities of a 
     suspected foreign agent, but which nevertheless were relevant 
     to a foreign-intelligence investigation? Also, are there 
     likely scenarios that would meet the relevance test but that 
     do not relate to the activities of a foreign power? If so, we 
     should inform ourselves about these past cases and scenarios, 
     and ask whether we would want to preclude an FBI 
     investigation in those circumstances.
       Finally, what does it mean for a person to be ``in contact 
     with'' or ``known to'' a suspected foreign agent? Does 
     ``contact'' require a showing of communication between the 
     two, or mere association? If association is sufficient, must 
     it be recurring? And if a single instance of association is 
     sufficient, how long must that association last? Also, what 
     is the purpose of the language requiring that the ultimate 
     target of the subpoena be ``known to'' an agent of a foreign 
     power? This language appears to preclude a subpoena if the 
     FBI can show only that the foreign agent is known to the 
     target, but not that the target is known to the foreign 
     agent. Is this distinction intentional? Also, this part 
     appears to bar investigations of targets who are seeking to 
     make contact with a foreign power but have not yet 
     consummated that contact. Do we want to bar the use of 
     Sec. 215 in such circumstances?
       Although we would hope that the three-part test would be 
     construed broadly by the FISA court, we would expect that 
     court to conclude that the test significantly retracts the 
     permissible scope of FISA subpoenas. First, the court 
     inevitably would assume that congress added the three-part 
     test to the statute because it perceived a need to restrict 
     the use Sec. 215. Further, the canon of statutory of 
     construction that each part of a statute should be 
     interpreted so that it has independent meaning also 
     recommends a narrow interpretation of the three-part test. If 
     each part of the three-part test is to have independent 
     meaning, it must restrict investigations to a greater extent 
     than does the relevance test. It thus seems to us inevitable 
     that if we adopt the three-part test, that test will bar some 
     significant subset of investigations that otherwise would be 
     permitted by current law and the relevance test.
       Just as important as the substantive limits created by the 
     three-part test, however,

[[Page 2439]]

     are the bureaucratic burdens that it certainly will entail. 
     One of the consistent lessons taught by all of the 
     investigations of the failures that led the 9/11 attacks is 
     that seemingly small or technical barriers can make a 
     critical difference to the success of a terrorism 
     investigation.
       In two separate instances that we now know of, federal 
     investigators were in close pursuit of 9/11 conspirators 
     prior to the attacks and might have been able to uncover or 
     even disrupt the plot. In each instance, however, these 
     investigations were seriously--perhaps critically--undermined 
     by bureaucratic barriers that few would have thought 
     significant before 9/11. Several weeks before the attacks, 
     federal agents in Minneapolis had arrested Zacarias Moussaoui 
     and sought a FISA warrant to search his belongings, which we 
     now know included the names of two 9/11 hijackers and a high-
     level organizer of the attacks who later was captured in 
     Pakistan. The FBI was unable to obtain that warrant, however, 
     because at the time FISA required that the target of the 
     warrant be an agent of a foreign power--apparent lone-wolf 
     terrorists such as Moussaoui, even when believed to be 
     involved in international terrorism, could not be the target 
     of a FISA warrant. Similarly, two weeks before the 9/11 
     attacks, federal agents learned that Khalid Al-Midhar, one of 
     the eventual suicide pilots, was in the United States. Based 
     on his past Al Qaeda associations, these agents understood 
     that Al-Midhar was dangerous and they immediately initiated a 
     search for him. These intelligence agents were barred from 
     seeking assistance from the FBI's Criminal Division, however, 
     because of the legal wall that at that time barred 
     cooperation between intelligence and criminal investigators.
       We understand that you and Chairman Sensenbrenner are 
     considering adopting the three-part test as a permissive 
     presumption, and that you would also allow the issuance of 
     Sec. 215 orders that meet the relevance test but not the 
     three-part test so long as those orders are subject to 
     minimization procedures. Though such a system apparently 
     would eventually allow any relevant investigation to go 
     forward, its ultimate effect would be to greatly complicate 
     the process of obtaining a Sec. 215 order. Current law simply 
     requires a showing of relevance to an intelligence 
     investigation. The proposed system, in addition to its 
     alternative procedures and presumptions, introduces a host of 
     legal issues discussed earlier. These issues not only will 
     generate litigation, but will also produce considerable legal 
     and operational aversion to the use of Sec. 215.
       We think that it is inevitable that in some cases, agents 
     will be dissuaded from or delayed in seeking a Sec. 215 
     subpoena by the burdens created by this proposed system. The 
     risk may appear insignificant that these additional burdens 
     would fatally undermine a critical anti-terrorism 
     investigation. But again, the legal and technical barriers 
     that seriously undercut the pre-9/11 Moussaoui and Al-Midhar 
     investigations also must have seemed minor at that time. When 
     agents are investigating a particular suspect, they typically 
     will have no way of knowing if he is a lead to discovering a 
     major terrorist conspiracy. Even the Moussaoui and Al-Midhar 
     investigators could not have known the importance of their 
     efforts. Thus even when a bureaucratic barrier can be 
     overcome, it is easy to envision how it might cause 
     investigators to abandon pursuit of one target in favor of 
     competing targets, or to give that target a lower priority.
       We appreciate that Sec. 215 has become controversial in the 
     debate over the Patriot Act--that it is one of the few 
     provisions specifically attacked by so-called civil liberties 
     groups and in newspaper editorials. We understand the appeal 
     of doing something that would appease these parties. 
     Nevertheless, we believe that higher priorities must be given 
     precedence in this case. Absent real evidence of abuse, we 
     should not legislate on the basis of hypothetical scenarios. 
     Our national-security investigators abide by the rules 
     governing their conduct. We should provide them with all of 
     the tools to do their jobs that are constitutionally 
     available--especially when those tools already are available 
     to agents conducting ordinary criminal investigations.
       Few things would cause us greater regret than if another 
     major terrorist attack were to occur on United States soil, 
     and we were later to discover that procedural roadblocks that 
     we had adopted in this conference report substantially 
     impeded an investigation that might have prevented that 
     attack. Again, we strongly urge you to oppose adding the 
     proposed three-part test to Sec. 215 of the Patriot Act, and 
     we note that we would have great difficulty supporting a 
     conference report that includes such a provision.
           Sincerely,
     Jon Kyl,
       U.S. Senator.
     Pat Roberts,
       U.S. Senator.
     Jeff Sessions,
       U.S. Senator.

  Mr. CHAMBLISS. Mr. President, once again, I want to congratulate 
Chairman Specter and Chairman Roberts for their extraordinary work in 
forging a conference report on the reauthorization of the USA PATRIOT 
Act. I have previously expressed disappointment that many concessions 
were made during this process which I believe have resulted in a bill 
far weaker than the original PATRIOT Act which passed overwhelmingly in 
response to the terrorist attacks of 9-11 and which represented long-
overdue modernization of our intelligence and criminal investigative 
techniques. Similarly, this bill is far weaker than that agreed to 
after the hard work of the House-Senate conferees.
  Nevertheless, our failure to pass this important extension would once 
again relegate America's intelligence and criminal professionals to the 
dark ages of investigative techniques, shackle them with outdated 
constraints, and prevent them from finding and stopping those who are 
intent on murder, terror, and the ultimate annihilation of Western 
civilization.
  Arguments against the PATRIOT Act have been largely, if not wholly, 
without factual basis. They are premised upon a misperception of what 
protects our liberties. For the last 5 years, it has been the PATRIOT 
Act which has, at once, helped to keep us safe and to protect our 
Constitutional rights and liberties. Those liberties have not been 
jeopardized by expanded governmental authority, but by violent attacks 
against our way of life by terrorists. Those who have systematically 
worked to weaken this important bill, and who, even now oppose it, 
have, in my view, lost site of that reality, whether intentionally or 
not.
  The PATRIOT Act represented long-overdue reforms of both our criminal 
and intelligence investigative laws. It modernized outmoded and 
antiquated law enforcement provisions and provided for commonsense law 
enforcement at its best. The provisions of the PATRIOT Act have been 
responsibly and appropriately utilized by the dedicated men and women 
of Federal law enforcement and the intelligence community to accomplish 
amazing victories in the war on terrorism.
  In my earlier statement in support of the conference report on 
December 19, 2005, I outlined in detail case after case in which 
provisions of the PATRIOT Act had been utilized to identify and 
successfully prosecute terror-criminals and to thwart terrorist plots 
designed to harm Americans. I will not recount those cases again here, 
but suffice it to say that the PATRIOT Act has, in very tangible ways 
kept us safe and free.
  I therefore urge my colleagues to vote for this reauthorization, even 
as we work to remove the burdensome restrictions on law enforcement and 
intelligence professionals which have been imposed on them during this 
renewal process. We owe that much to them and to the future generations 
of the free peoples of the world. We must not shrink from that solemn 
obligation.
  Ms. CANTWELL. Mr. President, I rise today to speak about the PATRIOT 
Act.
  Like many of my colleagues, I am confronted with a very difficult 
decision. There are rarely easy answers in the Senate and today is no 
exception. The healthy debate we have had in this body over the last 
few days has been vigorous and valuable.
  Today, we have a solemn obligation to protect our Nation from those 
who may bring terror into our homes. At the same time, we have a 
responsibility to respect our rights and honor our privacy. These 
principles are not mutually exclusive: we can and must achieve both.
  This is one of the most significant pieces of legislation shaping our 
ability to resist and eliminate terrorist activity on our home front. 
Our actions today will have tremendous consequences in the lives of all 
Americans in months, years, and decades ahead.
  I am proud that in the rush and passions surrounding this bill, I 
have worked with my colleagues to insist on a serious, patient, and 
transparent debate in the Senate as we strive to find the right balance 
between protecting our civil liberties and fighting terrorism.
  Despite my reservations and after great deliberation, I support 
reauthorization today.

[[Page 2440]]

  I believe that we must not allow the PATRIOT Act to expire. With new 
provisions and improved meaningful oversight secured at last, empower 
our national leaders and policy makers with the accountability, wisdom, 
and prudence to use this legislation's powers in a way that does not 
undermine the freedoms we seek to protect.
  Under provisions of this conference report, the Federal Government 
must now provide public information on its use of intelligence 
gathering tools like national security letters and FISA warrants. What 
is more, this legislation provides for formal audits of these programs. 
We must play close attention in order to learn lessons of the past and 
prevent abuse in the future.
  I will join my colleagues in strongly pursuing additional sunset 
provisions I believe should have been included in this bill, to give 
Congress the opportunity to reassess whether these tools are yielding 
the intended results in the war on terror.
  We have already made some critical reforms to implement meaningful 
oversight. We have managed to get some of the most controversial 
provisions to sunset in another 4 years, despite the administration's 
desire to make them permanent. We have started with sunsets on the 
roving wiretaps and record requests from businesses and libraries. They 
are not enough, but they are a start.
  Because of an important vote we took yesterday, we have removed 
America's libraries from the purview of national security letters. 
We're allowing recipients of records requests to challenge the gag 
orders on the requests and have removed disclosure requirements for the 
names of attorneys assisting with those challenges. We are seeing 
improvements on disclosure for ``sneak and peek'' warrants.

  But I want to be clear, new powers must not be allowed to chip away 
at traditional privacy rights. We must closely watch how law 
enforcement uses these tools and be prepared to confront all abuses.
  I believe that many provisions of the bill, particularly those 
sections dealing with electronic eavesdropping and computer trespass, 
remain seriously flawed and may infringe on civil liberties. And that 
is why I will continue our work to improve these protections even as we 
implement them.
  At a time when we are making permanent broad powers for our law 
enforcement and intelligence communities without the full traditional 
safeguards of judicial review and congressional oversight my concerns 
have been exacerbated, truthfully, by the administration's explicit 
attempts to go around both the courts and the Congress with their 
wiretapping and secret listening posts.
  So as the FBI and other agencies continue to expand and evolve, so 
will their powers. We will continue to ask who should be watching the 
watchers in oversight.
  There is clearly more work to be done--Chairman Arlen Specter and 
Ranking Member Pat Leahy have worked together and are introducing 
legislation that addresses many of my outstanding concerns. I will be 
on that bill--we have made meaningful reforms.
  I also want to thank Senator Feingold for his continued dogged 
support for reform of this bill. I want him to know that I stand with 
him in the battle to gain further reforms.
  Also included in this conference report is some good news for port 
security. Sadly, there is not the funding that we have repeatedly asked 
for from this administration--but at least new criminal penalties for 
smuggling goods through ports. There are tools to help crackdown 
further on money laundering overseas by terrorist organizations.
  Finally, I am very pleased that the conference report includes 
essential and long overdue resources to combat our Nation's surging 
methamphetamine epidemic.
  Meth, as a problem in our communities, will not simply disappear on 
its own. We must make it a top priority and work to end it together. 
That's why I had introduced similar legislation to address meth use, 
manufacture, and sale, and create a law regulating the commercially 
available products used to make meth, such as pseudo-
ephedrine.
  And that's why I am so glad to see the Combat Meth Act included in 
today's legislation. I was proud to cosponsor this legislation when 
Senators Talent and Feinstein introduced it, and I am pleased that it 
will be signed into law, providing comprehensive reforms and critical 
resources. The legislation enforces strict regulations and keeps 
records so that meth producers can't get their hands on those key 
ingredients. When a similar type of law was enacted in Oklahoma, it 
reduced meth lab busts in the state by 80 percent.
  This legislation also provides valuable resources to State and local 
governments for law enforcement officials investigating and shutting 
down labs, investigating violent meth-related crimes, educating the 
public, and caring for children affected by the drug's scourge. The 
bill also confronts international meth trafficking new reporting and 
certification procedures.
  My State, Washington, is sixth in the country in meth production. In 
2004, 1337 meth lab sites were discovered in Washington State. That 
same year, 220 fatalities were linked to the drug. And we are first in 
the country, when it comes to the number of children found on raided 
sites. It is clear this is neither a small problem not an isolated one.
  But these aren't just numbers. They are parents and children, 
individual people with terrible stories of struggle and addiction. 
Acting here and now, to fight this epidemic, we can provide the 
resources to and protect our Nation's families and communities.
  The events of September 11 have changed our country and its people 
forever. We were attacked on our own soil. Thousands have died; 
thousands were injured. Very simply, we must do all that we can to stop 
terrorism by finding and ending terrorist activities here and abroad. 
Our challenge is to do this without compromising the values that make 
Americans so unique. They are the same values that have allowed our 
Nation to become great: respect for personal autonomy and the rights of 
the individual; and tolerance of all regardless of race or religion.
  They are the values that have always guided our Nation's leaders. It 
was Benjamin Franklin who said essentially:

       Make sure we have our liberties. Make sure we protect the 
     people from ourselves. Those who would give up their 
     essential liberties for security deserve neither and get 
     neither.

  We must defend both.
  We must maintain and take full advantage of meaningful oversight to 
ensure power is never abused. While I will vote for this bill, I will 
also continue to work to improve this bill. I will continue to be 
vigilant and urge those working defend and secure our Nation to use 
these powers wisely and with great deliberation.
  Mr. KYL. Mr. President, I rise today to comment on section 507 of the 
USA PATRIOT Improvement and Reauthorization Act conference report. This 
section originates in a bill that I introduced earlier in this year, S. 
1088, the Streamlined Procedures Act. Section 507 is based on 
subsections (b) through (e) of section 9 of S. 1088. My Arizona 
colleague, Representative Flake, took an interest in this matter and 
sought to offer this provision as an amendment to a court security and 
police-officer protection bill last November. Mr. Flake's version of 
the provision is printed in House Report 109-279; it made a number of 
improvements to the original version in section 9 of my bill. Section 
507 of the present conference report reflects most of Mr. Flake's 
improvements, such as the simplification of the chapter 154 
qualification standard, which obviates the need for separate standards 
for those States that make direct and collateral review into separate 
vehicles and those States with unitary procedures, and Mr. Flake's 
enhanced retroactivity provisions.
  Mr. Flake already has commented on section 507 in an extension of 
remarks, at 151 Cong. Rec. E2639-40, December 22, 2005. I will not 
repeat what he said there and will simply associate myself with his 
remarks. Instead, I would like to focus today on why section 507 is 
necessary.

[[Page 2441]]

  Section 507 expands and improves the special expedited habeas-corpus 
procedures authorized in chapter 154 of the U.S. Code. These procedures 
are available to States that establish a system for providing legal 
representation to capital defendants on State habeas review. Chapter 
154 sets strict time limits on Federal court action, bars consideration 
of claims that were not adjudicated in State court, and sharply 
curtails amendments to petitions. The benefits that chapter 154 offers 
to States that opt in to its standards are substantial. Currently, 
however, the court that decides whether a State is eligible for chapter 
154 is the same court that would be subject to its time limits. 
Unsurprisingly, these courts have proven resistant to chapter 154. 
Section 507 places the eligibility decision in the hands of a neutral 
party--the U.S. Attorney General, with review of his decision in the 
U.S. Court of Appeals for the District of Columbia Circuit, which does 
not hear habeas petitions. Section 507 also makes chapter 154's 
deadlines more practical by extending the time for a district court to 
review and rule on a chapter 154 petition from 6 months to 15 months.
  As I mentioned earlier, section 507 of the present conference report 
is based on section 9 of the Streamlined Procedures Act. The SPA and 
habeas reform have been the subject of multiple hearings in both the 
House and Senate during this Congress. In answers to written questions 
following their testimony at a July 13 hearing before the Senate 
Judiciary Committee, Arizona prosecutors John Todd and Kent Cattani 
provided detailed evidence of systematic delays in Federal habeas 
corpus review of State capital cases. Among the information that they 
provided was a comprehensive study undertaken by the Arizona Attorney 
General's Office of all capital cases in the State. This study examined 
the appeals of all prisoners currently on Arizona's death row--over 100 
prisoners. Mr. Todd summarized the findings in his answers to written 
questions:

       [S]tatistical information based on Arizona's current 
     capital cases in Federal court, and anecdotal information 
     derived from Arizona's current and former capital cases 
     substantiate the significant problem of delay and lack of 
     finality for victims. The AEDPA has not solved this problem.
       There are 76 Arizona capital cases pending in Federal 
     court. This represents over two thirds of Arizona's pending 
     capital cases. Although some cases were filed within the last 
     few months, over half of the cases have been pending in 
     Federal court five years or more. Of those, thirteen cases 
     have been pending for seven years. Ten cases have been 
     pending for eight years. Five cases have been pending for 
     more than fifteen years.
       The AEDPA was a major step in making Federal habeas review 
     more reliable and speedy. However, the Supreme Court's 
     reversals of the Ninth Circuit exemplify the unwillingness of 
     some court cultures to obey this Congress' directives if 
     there is any ambiguity in the law.

  Mr. Todd also gave a summary of the extreme delays experienced by the 
State of Arizona on Federal habeas review:

       Only one of the 63 [Arizona death-penalty] cases filed 
     under the AEDPA has moved from the Federal District Court to 
     the Ninth Circuit. That case has been in the Ninth Circuit 
     for over 5 years. Twenty-eight of Arizona's capital cases 
     have been pending in District Court for between six and eight 
     years.
       [One Arizona death penalty case] has been on Federal habeas 
     review for over 19 years. Two of those cases have been on 
     Federal habeas review for over 18 years, one for over 16 
     years, another for over 14 years, still another for over 12 
     years. These cases alone establish a pattern of unreasonable 
     delay. The [Arizona Attorney General's] report shows that 
     these cases are not simply strange aberrations in an 
     otherwise smooth functioning system of habeas review.

  Mr. Todd concluded: ``there is a serious problem of delay and lack of 
finality currently in Federal habeas review of state-court judgments, 
even after Congress' enactment of the AEDPA almost a decade ago. . . . 
Based on the attached review of the Arizona capital cases since 
enactment of the AEDPA, delay has not been eliminated or even reduced, 
rather it has been prolonged.''
  Similarly, in his answers to written questions, Kent Cattani, the 
Chief Counsel of the Capital Litigation Section of the Arizona Attorney 
General's Office, reviewed the Arizona Attorney General's study of 
Arizona capital cases and concluded as follows: ``Federal habeas reform 
is necessary. After 9 years under the Anti-Terrorism and Effective 
Death Penalty Act of 1996 (``AEDPA''), it is clear that the Act did not 
eliminate or even reduce the problem of delay in the Federal habeas 
process.''
  Interestingly, although the Judicial Conference of the United States 
has uniformly opposed all Federal habeas reform--it even objected in 
writing to SPA Section 8(a)'s requirement that circuit courts decide 
habeas cases within 300 days after briefing is completed--in its 
September 26, 2005 letter to Chairman Specter regarding the SPA, the 
Conference itself provides substantial evidence of a growing backlog 
and delays in resolution of capital habeas petitions. The September 26 
letter notes the following facts: From 1998 to 2002, the number of 
State capital habeas cases pending in the Federal district courts 
increased from 446 to 721. During the same period, the percentage of 
State capital habeas cases pending in the Federal district courts for 
more than 3 years rose from 20.2 percent to 46.2 percent; in the 
Federal courts of appeals, the number of pending State capital habeas 
cases rose from 185 to 284; and the median time from filing of a notice 
of appeal to disposition for State capital habeas cases increased from 
10 months to 15 months.
  It is noteworthy that all of these increases in backlog and delay 
have taken place after the enactment of the AEDPA in 1996--a law that 
some critics of habeas reform assert has solved all of the problems 
with Federal habeas.
  At the most recent hearing on the Streamlined Procedures Act, before 
the Senate Judiciary Committee on November 16, Ron Eisenberg, Deputy 
District Attorney for Philadelphia, summarized the problems and delays 
with Federal habeas review that he encounters in the course of his 
work. He stated:

       I have served as a prosecutor for 24 years. I am the 
     supervisor of the Law Division of the Philadelphia District 
     Attorney's Office, a group of 60 lawyers. Many of those 
     lawyers handle regular appeals in the Pennsylvania appellate 
     courts. But more and more of our attorneys must devote 
     themselves full time to Federal habeas corpus litigation. In 
     the last decade, the number of lawyers employed exclusively 
     on habeas work has increased 400%. Despite the limits 
     supposedly imposed by law, the only certain limit on the 
     Federal habeas process as it is currently administered is the 
     expiration of the defendant's sentence.
       But that leaves ample opportunity and motivation for 
     litigation, because the cases that reach Federal habeas 
     review involve the most dangerous criminals, who receive the 
     most serious sentences--not just death penalties, but non-
     capital murders, rape, violent robberies and burglaries, 
     brutal beatings, and shootings.
       Too often, discussion of the proper scope of Federal habeas 
     corpus review is really just a debate about the value of the 
     death penalty, and the justness of imprisonment and 
     punishment generally. To be sure, many Federal courts seem 
     flatly unwilling to affirm capital sentences. In 
     Pennsylvania, for example, almost every single contested 
     death sentence litigated on habeas--over 20 cases in the last 
     decade--has been thrown out by Federal judges; only one has 
     been upheld.
       But the primary problem is one of process, not results. The 
     truth is that, whether or not they end up reversing a 
     conviction, Federal habeas courts drag out litigation for 
     years of utterly unjustifiable delay, creating exorbitant 
     costs for the state and endless pain for the victims.

  This data and testimony confirm what many capital litigators and 
judges have told me is, in their view, an obvious and uncontestable 
fact: the problems with Federal habeas corpus are systematic, they are 
severe, and they and are growing worse. Yet even this information does 
not really tell us why this problem matters--why ordinary people, 
rather than just civil servants and judges, should be concerned about 
the functioning of the Federal habeas system. For that information, it 
is necessary to look at the impact of the current habeas system on the 
surviving victims of violent crimes. The current system and the delays 
that it engenders, particularly in capital cases, often are grossly 
cruel to these individuals. The perpetual litigation of Federal habeas 
cases denies the surviving family of a murder victim closure--it forces 
them to continually relive the crime, rather than be able to put the 
terrible events behind them.
  Two parents of murder victims testified at hearings in this Congress 
about

[[Page 2442]]

how they have been treated by the Federal habeas system. Their 
testimony makes a compelling case that this system is broken and in 
need of reform. And it highlights why we should all be concerned. What 
these individuals and their families--people who had already suffered 
so much--have experienced at the hands of the Federal courts should 
offend every American.
  The first witness to testify was Carol Fornoff, who addressed the 
House Judiciary Committee's Crime Subcommittee on June 7 of last year. 
Mrs. Fornoff's 13-year-old daughter, Christy Ann, was murdered in 1984. 
Almost every Arizonan who lived in the State at the time knows the name 
Christy Ann Fornoff. Christy's murder was an event that shattered 
people's sense of security, that made them afraid to let their children 
play outside or go out of their sight. I remember the case vividly. And 
I was stunned when I learned last year that the man who killed Christy, 
although sentenced to death by the State of Arizona, still is 
litigating his conviction and sentence in Federal court. His Federal 
proceedings began in 1992--14 years ago. Just think about how long ago 
1992 is. President Bush's father was the President at the time. Bill 
Clinton was the Governor of Arkansas. Saddam Hussein's invasion of 
Kuwait is closer in time to that date than the U.S. invasion of Iraq is 
to today. And yet the case of Christy's killer remains in Federal 
court.
  Mrs. Fornoff made a powerful case for why we should find this 
unacceptable. She described the suffering of her family, how this 
decades-long litigation has denied them closure. I do not think that 
anyone who heard Mrs. Fornoff's testimony would assert that there are 
no problems with the present system. Allow me to quote the main portion 
of Mrs. Fornoff's statement to the House Crime Subcommittee:

       My husband Roger and I are here today to tell you about our 
     daughter, Christy Ann Fornoff. Christy was our youngest 
     daughter. She was a loving child, very gentle. She often 
     seemed to make friends with the kids at school who weren't so 
     popular. She was very dear to us.
       In 1984, our family was living in Tempe, Arizona, and 
     Christy was 13 years old. Christy and her brother Jason both 
     held jobs as newscarriers for the Phoenix Gazette, a local 
     newspaper. Roger and I believed that jobs like this would 
     teach our children responsibility, while also helping them 
     earn a little money.
       After dinner on Wednesday evening, May 9, 1984, both 
     Christy and Jason had been invited to go jumping on 
     trampolines. Jason went, but Christy had just had a cast 
     removed from her ankle. Instead, she went to collect on 
     newspaper subscriptions at an apartment complex near our 
     house.
       Christy delivered papers at this complex every day, it was 
     just two short blocks from our house. Nevertheless, it was 
     getting dusk, so I went with Christy; she rode her brother's 
     bike while I walked alongside with our little dog.
       At the first apartment that Christy visited, I was stopped 
     by a neighbor who wanted to talk about our cute dog. Christy 
     went on to the next apartment alone, and I followed a few 
     minutes later. When I got there, the bike was outside, but 
     there was no Christy. I started calling her name, but there 
     was no answer. Our dog started to get nervous. After a few 
     minutes, I ran home, and came back with my daughter's 
     boyfriend. I asked the people at the apartment that Christy 
     had gone to if they had seen her, and they said yes, ten 
     minutes ago, and that she had left. I knew that Christy 
     wouldn't just leave her brother's bike there.
       I ran home again. My husband had just arrived at home and I 
     told him that Christy was missing. He immediately called the 
     police, and then he went to the apartment complex and began 
     knocking on doors. Outside of one apartment, people standing 
     nearby told us don't bother knocking on that door, that is 
     the maintenance man, and he is looking for Christy. Shortly 
     after, the maintenance man joined Roger in the search for 
     Christy.
       That night, police helicopters with searchlights examined 
     every corner of our neighborhood. Our son drove up and down 
     every alley in the area on his motorcycle. Christy's 
     newspaper-collections book was found over a fence near the 
     apartment complex. But no one found Christy.
       Two days later, a policeman knocked at our door. Christy's 
     body had been discovered wrapped in a sheet, lying behind a 
     trash dumpster in the apartment complex. We were absolutely 
     devastated. We had been hoping against hope, and couldn't 
     believe that our beautiful daughter was dead.
       Christy's body was taken to a morgue so that an autopsy 
     could be performed. On Sunday, which was Mother's day, we 
     were finally able to view Christy's body at the funeral home. 
     Mother's Day has never been the same for me since.
       Ten days after Christy's body was found, the maintenance 
     man at the apartment complex--the same man who supposedly had 
     been looking for her the night that she disappeared--was 
     arrested for her murder. Christy had been sexually assaulted 
     and suffocated. There was blood, semen, and hair on Christy's 
     body that was consistent with that of the maintenance man. 
     Vomit on Christy's face matched vomit in the maintenance 
     man's closet. Fibers on Christy's body matched the carpet and 
     a blanket in the maintenance man's apartment. And police 
     found Christy's hair inside of the apartment. We knew who had 
     killed our daughter.
       In 1985, the maintenance man was convicted of Christy's 
     murder and sentenced to death. The conviction was upheld in a 
     lengthy opinion by the Arizona Supreme Court. The killer 
     raised many more challenges, but his last state appeals were 
     finally rejected in 1992. By that time, we already felt like 
     the case had been going on a long time--it had been seven 
     years. We couldn't imagine that the killer would have any 
     more challenges to argue.
       But in 1992, the killer filed another challenge to his 
     conviction in the United States District Court. That 
     challenge then remained in that one court for another 7 
     years! Finally, in November of 1999, the district court 
     dismissed the case. But then a few years later, the Federal 
     Court of Appeals for the Ninth Circuit sent the case back to 
     the district court for more hearings. Today, the case remains 
     before that same Federal district court.
       It has now been over 21 years since Christy was murdered. 
     By this fall, the case will have been in the Federal courts 
     for longer than Christy was ever alive.
       I cannot describe to you how painful our experience with 
     the court system has been. I cannot believe that just one 
     court took over 7 years to decide our case.
       Some might ask why we can't just move on, and forget about 
     the killer's appeals. But it doesn't work that way. She was 
     our daughter, our beautiful little girl, and he took her 
     away. We want to know if he was properly convicted. We want 
     to know, will his conviction be thrown out? Will there be 
     another trial? I cannot imagine testifying at a trial again. 
     And would they even be able to convict this man again? It has 
     been 21 years. How many witnesses are still here, is all of 
     the evidence even still available? Could this man one day be 
     released? Could I run into him on the street, a free man--the 
     man who assaulted and killed our little daughter? The courts 
     have turned this case into an open wound for our family--a 
     wound that has not been allowed to heal for 21 years.
       I understand that the Federal government has the right to 
     create such a system. It can let the Federal courts hear any 
     challenge to a state conviction, at any time, with no limits. 
     My question to you, Mr. Chairman, is why would we want such a 
     system? Why would we want a system that forces someone like 
     me to relive my daughter's murder, again and again and again? 
     My daughter's killer already litigated all of the challenges 
     to his case in the state courts. Why should we let him bring 
     all of the same legal claims again, for another round of 
     lawsuits, in the Federal courts? Why should this killer get a 
     second chance? My daughter never had a second chance.
       I understand that people are concerned about innocent 
     people being behind bars, but that is not what my daughter's 
     killer is suing about. Right now, the issue that is being 
     litigated in the Federal courts is whether the trial court 
     made a mistake by allowing the jury to hear that he told a 
     prison counselor that he ``didn't mean to kill the little 
     Fornoff girl.'' He claims that the counselor was like his 
     doctor, and that the statement is private, even though he 
     said it in front of other prisoners. Earlier this year, a 
     Federal court held a hearing on whether the killer had a 
     right to prevent the jury from hearing about this statement. 
     But the statement is irrelevant. Whether or not he said it, 
     the evidence of his guilt--the hairs, the fibers, the bodily 
     fluids--is overwhelming. The issue that the killer is suing 
     about was already resolved before by the Arizona Supreme 
     Court--over 17 years ago. Yet here we are, 21 years after my 
     daughter died, arguing about the same legal technicalities.
       People might say that it is worth the cost to let the 
     killer sue over every issue like this again and again. I 
     don't think that it is worth the cost. When you and your 
     colleagues are writing laws, Mr. Chairman, please think about 
     people like me. Please think about the fact that every time 
     that there is another appeal, another ruling, another 
     hearing, I am forced to think about my daughter's death. 
     Every time, I am forced to wonder, if only Christy hadn't had 
     the cast on her ankle--if only she could have gone on the 
     trampoline that evening, she would still be alive today. 
     Every time that I hear a helicopter, I am terrified--I think 
     of the police helicopters searching for Christy on the night 
     that she disappeared. Every time that I hear a motorcycle, I 
     think of my son, searching for Christy. Every time that the 
     courts reopen this case, I am forced to wonder, why didn't I 
     follow Christy to that second apartment--why did I let that 
     neighbor stop me to talk? Every time, I am forced to

[[Page 2443]]

     think about how scared my little girl must have been when she 
     died.
       I urge you, Mr. Chairman, to do what you can to fix this 
     system. My family and I have forgiven our daughter's 
     murderer. But we cannot forgive a justice system that would 
     treat us this way.

  Another witness who testified before Congress last year on the need 
for Federal habeas reform is Mary Ann Hughes of Chino Hills, CA. Mrs. 
Hughes's son Christopher, then 11 years old, was murdered in 1983. As 
in the Fornoff case, the killer was captured, convicted, and sentenced 
to death--and is still litigating his case in Federal court today. Mrs. 
Hughes testified before the House Judiciary Committee's Crime 
Subcommittee on November 10, 2005. This is what she said:

       Christopher was a beautiful little boy. He had just 
     completed the fifth grade at a local Catholic school. His 
     classmates later planted a tree in his memory at the school. 
     Chris swam on the swim team and dreamed of swimming for the 
     University of Southern California and being in the Olympics. 
     He loved his younger brother, and in typical brotherly 
     fashion would tease him one minute and be his best friend the 
     next. Chris' younger brother is now 28-years-old. He has 
     missed Chris every day since he was murdered. Our younger son 
     was not yet born when Chris was murdered. I was pregnant 
     during part of Cooper's trial with our third son. When he was 
     born we gave him the middle name Christopher after the 
     brother he never knew. Both boys have only in the last few 
     years been able to face what happened to their brother. As 
     the years have passed, we are reminded that Chris never got 
     to finish grammar school, go to a prom, marry, have children 
     of his own, or pursue his dreams.
       On Saturday, June 4, 1983, Chris asked me for permission to 
     spend the night at the home of his friend, Josh Ryen. We 
     lived in what was then a very rural neighborhood. Josh was 
     the only boy nearby who was really close to Chris's age and 
     so they formed a bond. We were good friends with Josh's 
     parents, Doug and Peggy Ryen. The Ryens lived just up the 
     road from our home with their 10-year-old daughter Jessica 
     and eight-year-old Josh. The last time I saw Chris alive he 
     and Josh were riding off on their bicycles toward Josh's 
     house. They were excitedly waving because they were so happy 
     I had given Chris permission to spend that night with Josh. 
     The only thing Chris had to remember was to be home Sunday in 
     time for church. The next time I saw Chris was in a 
     photograph on an autopsy table during Cooper's preliminary 
     hearing.
       Unbeknownst to anyone, Cooper had been hiding in a house in 
     Chino Hills just 126 yards from the Ryen's home. He had 
     escaped two days earlier from a minimum security facility at 
     a nearby prison. When Cooper was arrested for burglary in Los 
     Angeles he used a false identity. His identity and criminal 
     past should have caught up with him before he was wrongly 
     assigned to the minimum security portion of the prison. The 
     prison, however, mishandled the processing of an outstanding 
     warrant for Cooper for escape from custody in Pennsylvania. 
     He was being held pending trial for the kidnap and rape of a 
     teenage girl who interrupted him while he was burglarizing a 
     home. While staying at the hide-out house near the Ryens, 
     Cooper had been calling former girlfriends, trying to get 
     them to help him get out of the area. A manhunt was under way 
     for Cooper, but the rural community surrounding the prison 
     was never notified of the escape.
       The failure of the California prison-system to protect the 
     surrounding community from a dangerous felon marked the 
     beginning of our family and community's being let down by our 
     government. Within a few hours of Cooper's escape, prison 
     officials realized who Cooper was and how dangerous he was. 
     Nevertheless, they still failed to alert the community that 
     he was at large. Our frustration and disappointment with our 
     government's failings has only grown since that time as 
     Cooper's case continues to wind its way down a seemingly 
     endless path through our judicial system.
       The morning following the murders, I remember being mad at 
     Chris because he had not arrived home on time as promised so 
     we could attend church. Then my anger turned to worry. I sent 
     my husband Bill up to the Ryen home. He saw that the horses 
     had not been fed, and that the Ryen station wagon was gone.
       Uncharacteristically, the kitchen door was locked, so my 
     husband walked around the house. He looked inside the sliding 
     glass door of the Ryen's master bedroom. He saw blood 
     everywhere. Peggy and Chris were lying on the ground and Josh 
     was lying next to them, showing signs of life but unable to 
     move. My husband could not open the sliding glass door, so he 
     ran and kicked open the kitchen door. As he went into the 
     master bedroom, he found 10-year-old Jessica lying on the 
     floor in fetal position in the doorway, dead. He saw Doug and 
     Peggy nude, bloodied, and lifeless. When he went to our son 
     Chris, he was cold to the touch. Bill then knew that 
     Christopher was dead.
       My husband then forced himself to have enough presence of 
     mind to get help for Josh, who miraculously survived despite 
     having his throat slit from ear to ear. Josh, only eight 
     years old, lay next to his dead, naked mother throughout the 
     night, knowing from the silence and from the smell of blood 
     that everyone else was dead. He placed his fingers into his 
     throat, which kept him from bleeding to death during the 12 
     hours before my husband rescued him.
       Everyone inside the home had been repeatedly struck by a 
     hatchet and attacked with a knife. Christopher had 25 
     identifiable wounds made by a hatchet and a knife. Many of 
     them were on his hands, which he must have put against his 
     head to protect himself from Kevin Cooper's blows. Some were 
     made after he was already dead. No one should know this kind 
     of horror. That it happened to a child makes it even worse.
       The killer had lifted Jessica's nightgown and carved on her 
     chest after she died. The killer also helped himself to a 
     beer from the Ryen's refrigerator. We wondered what kind of 
     monster would attack a father, mother, and three children 
     with a hatchet, and then go have a beer. That question has 
     long since been answered, but 22 years later we are still 
     waiting for justice.

  The escaped prisoner who committed this crime was caught 2 months 
later. He admitted that he had stayed in the house next door but denied 
any involvement in the murders. According to the California Supreme 
Court, however, the evidence of defendant's guilt was ``overwhelming.'' 
Not only had the defendant stayed at the vacant house right next door 
at the time of the murders; the hatchet used in the murders was taken 
from the vacant house; shoe prints in the Ryen house matched those in 
the vacant house and were from a type of shoe issued to prisoners; 
bloody items, including a prison-issue button, were found in the vacant 
house; prison-issue tobacco was found in the Ryen station wagon, which 
was recovered in Long Beach; and the defendant's blood type and hair 
matched that found in the Ryen house. The defendant was convicted of 
the murders and sentenced to death in 1985, and the California Supreme 
Court upheld the defendant's conviction and sentence in 1991.
  The defendant's Federal habeas proceedings began shortly thereafter, 
and they continue to this day--23 years after the murders. In 2000, the 
defendant asked the courts for DNA testing of a blood spot in the Ryen 
house, a t-shirt near the crime scene, and the tobacco found in the 
car. Despite the overwhelming evidence of his guilt, the courts allowed 
more testing. All three tests found that the blood and saliva matched 
the defendant, to a degree of certainty of 1 in 310 billion. Blood on 
the t-shirt matched both the defendant and one of the victims.
  Mrs. Hughes went on to describe, in her November 10 testimony, the 
impact of this crime and the attenuated legal proceedings on her 
family:

       ``While I know that Cooper is the one who murdered my son, 
     I will always bear the guilt of having given Chris permission 
     to spend the night at the Ryen's house. I will always feel 
     responsible for sending my husband to find the bodies of our 
     son and the Ryen family. It is a guilt similar to the guilt 
     that Josh feels to this day because he had begged me to let 
     Chris spend the night. He thinks that Chris would still be 
     alive if he had not spent the night. Of course, Cooper is 
     responsible for all the pain and suffering that he inflicted 
     that night and the continued pain that has followed, but it 
     does not help stop the pain and guilt. Kevin Cooper is still 
     here over 22 years later--still proclaiming his innocence and 
     complaining about our judicial system.
       As Josh explained when he finally got a chance to speak to 
     the Judge about how he has been affected by Cooper's crimes: 
     Cooper never shuts up. We continually get to hear more bogus 
     claims and more comments from Cooper and his attorneys. Over 
     the years I have learned to know when something has happened 
     in Cooper's never-ending legal case: the calls from the media 
     start up again, or, at times, the media trucks just park in 
     front of our house. We have no opportunity to put this behind 
     us--to heal or to try to find peace--because everything is 
     about Cooper. Our system is so grotesquely skewed to Cooper's 
     benefit and seemingly incapable of letting California carry 
     out its judgment against him.
       [The] judicial system so out of balance in favor of the 
     convicted that it literally enables them to victimize their 
     victims and their families all over again through the Federal 
     judicial system. We understood the rights of an accused and 
     that Cooper's rights took precedence over ours as he stood 
     trial. His trial was moved to another County because of the 
     publicity surrounding the horrendous crimes. I had to drive a 
     long distance to another county to watch the trial as

[[Page 2444]]

     it could not take place in our County. Cooper's defense 
     attorney spent an entire year preparing to defend Cooper at 
     trial. Everything was about Cooper's rights and none of our 
     sensibilities or concerns could be dignified because Cooper 
     had to have a fair trial. We understood and we waited for 
     justice. In California, Cooper's appeal was automatic because 
     he had received the death penalty for his crimes. The appeal 
     took six years to conclude. We understood the need for a 
     thorough appeal and we waited for justice.
       By 1991, Cooper had received a fair trial and his appeal 
     had been concluded. The California Supreme Court aptly 
     observed that the evidence against Cooper, both in volume and 
     consistency, was ``overwhelming''. Since then, we have waited 
     and watched as the United States Supreme Court has denied 
     Cooper's eight petitions for writ of certiorari and two 
     petitions for writ of habeas corpus, and the California 
     Supreme Court has denied Cooper's seven habeas corpus 
     petitions and three motions to reopen Cooper's appeal. The 
     Ninth Circuit affirmed the denial of Cooper's first Federal 
     habeas petition, and denied him permission to file a 
     successive petition in 2001, and again in 2003. But then, on 
     Friday night, February 6, 2004, Cooper's attorneys filed an 
     application with the Ninth Circuit requesting permission to 
     file a successive habeas petition.
       A three-judge panel of the Ninth Circuit denied Cooper's 
     application to file a successive petition on Sunday, February 
     8, 2004. Cooper was scheduled to be executed at one minute 
     after midnight on Tuesday, February 10, 2004. On Monday, 
     February 9, 2004, my husband and I made the trip to Northern 
     California from our home in Southern California. Relatives of 
     the extended Ryen family flew in from all over the Country. 
     Josh Ryen, now 30, left for dead at the age of eight, his 
     entire immediate family murdered, drove hundreds of miles to 
     reach the prison to witness the execution of Cooper. We all 
     expected that finally, this case would be brought to a close.

  Mrs. Hughes went on to describe, however, how on the eve of the 
execution, the en banc Ninth Circuit Court of Appeals sua sponte 
reviewed the denial of the petitioner's successive petition application 
and reversed the three-judge panel. The en banc decision stayed the 
killer's execution and permitted him to pursue a second round of 
Federal habeas corpus litigation. This second round still is going on 
today--15 years after the California Supreme Court affirmed the 
conviction and sentence, and 23 years after the murders.
  Section 2244(b)(3)(E) of title 28 states that ``[t]he grant or denial 
of an authorization by a court of appeals to file a second or 
successive application shall not be appealable and shall not be the 
subject of a petition for rehearing or for a writ of certiorari.'' To 
us lesser lawyers, this provision might seem like it means that there 
shall be no en banc review of the three-judge panel's denial of the 
application. But the enlightened jurists of the Ninth Circuit have 
discovered that although subparagraph (E) bars the habeas petitioner 
from appealing the denial, the en banc court remains free to sua sponte 
grant review. Some might find it strange that Congress would have 
intended to bar the en banc courts of appeals from considering a case 
on the basis of a party's appeal and adversarial briefing, but intended 
to allow the same courts to hear the same case without a request for 
review and with no briefing. Typically, briefing is regarded as aiding 
a court's consideration of a case. Of course, the losing habeas 
petitioner typically does seek en banc review of the denial of the 
successive-petition application and file a brief in support of his 
request. I suppose that we are to trust that the en banc court of 
appeals does not read that brief, or that if it does so, it puts the 
brief out of its collective mind so that it might act ``sua sponte'' 
when it votes on whether to go en banc, lest its actions otherwise 
appear to violate subparagraph (E)'s clear command that the denial of 
the application is not ``appealable.''
  In this case, I am prepared to believe that the judges did not read 
the briefs. Despite DNA evidence that linked the habeas petitioner to 
the murder scene to a degree of certainty of 1 in 310 billion, the en 
banc Ninth Circuit determined that the petitioner met section 2244's 
requirement that he present ``clear and convincing evidence that . . . 
no reasonable factfinder would have found [him] guilty of the 
underlying offense.'' The Ninth Circuit's theory was that the police 
might have planted the blood evidence. As Mrs. Hughes noted in her 
November 10 testimony, however:

       Of course, Cooper could not explain how or why police would 
     plant a minute amount of blood on the t-shirt only to never 
     use it as evidence against him at trial. Moreover, this 
     evidence had been in police custody since 1984. Apparently, 
     these supposed rogue police officers also anticipated the 
     development of the Nobel Prize-winning science that would 
     enable Cooper to have the blood tested for DNA. Cooper also 
     could not explain how the police could have planted his blood 
     at the crime scene within a few hours of discovering the 
     bodies, while he was still at large.

  The Ninth Circuit first granted sua sponte en banc review of the 
denial of a successive-petition application in the case of Thompson v. 
Calderon, 120 F.3d 1045, 9th Cir. 1997, a decision with other 
procedural irregularities so glaring that the Supreme Court did not 
even notice this aspect of the decision when it took it up and 
reversed, Calderon v. Thompson, 523 U.S. 538, 1998. The Sixth Circuit 
subsequently copied Thompson, thus allowing the Ninth Circuit to 
attribute this practice to other circuits when it again applied it in 
the case of the killer of Mary Ann Hughes's son. Section 8(b) of the 
Streamlined Procedures Act would prevent the Ninth Circuit from doing 
this in the future. Unfortunately, I was unable to have that provision 
included in this conference report. I will try again in the future.
  This year, it will have been 23 years since Christopher Hughes and 
Doug, Peggy, and Jessica Ryen were murdered. In 2004, after the Ninth 
Circuit authorized another round of litigation, a local newspaper 
described the impact of this crime and the ensuing years of appeals on 
the surviving family of the victims:

       For nearly 20 years, since convicted murderer Kevin Cooper 
     was sentenced to death for the 1983 slayings of a Chino Hills 
     family and their young houseguest, families of the victims 
     have waited silently for the day the hand of justice would 
     grant them peace.
       For those families, the last two decades have seemed like 
     an eternity.
       I lived through a nightmare,'' said Herbert Ryen, whose 
     brother Douglas Ryen was among those killed, along with 
     Douglas' wife Peggy, their 11-year-old daughter Jessica, and 
     her 10-year-old friend Christopher Hughes.
       [O]n the morning of Feb. 9, [2004,] the day of Cooper's 
     scheduled death by lethal injection, word came down that the 
     9th U.S. Circuit Court of Appeals had decided to block the 
     execution.
       [T]o the Ryen and Hughes families, the stay just hours 
     before Cooper's scheduled execution at San Quentin State 
     Prison was nearly incomprehensible. The indefinite delay has 
     left them in a sort of emotional limbo, questioning whether 
     the legal system had abandoned them.
       The bottom line is that this whole issue is not about Kevin 
     Cooper . . . it is about the death penalty,'' said Mary Ann 
     Hughes, the mother of Christoper Hughes. ``We're so mad--mad 
     because we feel as though the courts turned their back on my 
     son.''
       They (Court of Appeals) are holding us hostage,'' Hughes 
     said.
       For Herbert Ryen and his wife Sue, waiting for justice has 
     taken an equally destructive toll on their lives. The torment 
     their family experienced following the murders, and the 
     subsequent years lost to depression, could never be replaced, 
     he said from his home in Arizona.
       Mary Ann Hughes said the pain her family suffers is only 
     amplified by the seemingly continuous bombardment of 
     celebrities campaigning against Cooper's execution. She 
     wonders who will cry out in anger for the victims.
       One former television star and anti-death penalty activist, 
     Mike Farrell of the popular series MASH, spoke of the case on 
     a recent news program.
       ``He claimed that we must feel relieved since the stay of 
     execution was granted,'' Hughes said. ``How can (Farrell) 
     have the audacity to say he knows what we are feeling?''
       Farrell could not be reached for comment.
       Since Christopher's death, the Hughes family has chosen to 
     remain out of the media spotlight. And until recently, their 
     efforts were successful, due largely to the support of their 
     surviving children, family members and a strong network of 
     close friends, Hughes said.
       The court's decision Feb. 9 has re-opened the case, forcing 
     the families to re-live the nightmare they have fought so 
     hard to leave behind, they say.
       Mary Ann Hughes is left wondering about other families who 
     have had loved ones taken from them, about the legal battles 
     they have had to endure in their own quests for justice.
       She thinks of the parents of Samantha Runion, the 5-year-
     old Orange County girl who was murdered in 2003, and of what 
     her family could face in the next 20 years.
       For Bill Hughes, the anguish is intensified--he will 
     forever know the pain of walking into the Ryens' home the 
     morning after

[[Page 2445]]

     the murders, and finding his son, dead and covered in blood 
     near the Ryens' bedroom door. He was also the first to 
     discover Joshua Ryen, also drenched in blood, clinging to 
     life.
       ``It is a memory he will always have to live with,'' Mary 
     Ann Hughes said.
       Indeed, time has been no friend to the victims' families, 
     as California's recent appellate court ruling has further 
     denied them closure, she added.
       ``What this decision has done to our legal system in 
     California is unthinkable,'' she said. ``Somewhere along the 
     line, the courts have got to uphold the law, and we will wait 
     it out until they do.'' (Sara Carter, ``Families of Murder 
     Victims Wait for Justice in Cooper Case,'' Inland Valley 
     Daily Bulletin, February 24, 2004.)

  The impact of this litigation on Mary and Bill Hughes and Herbert and 
Sue Ryen alone makes the handling of this case indefensible. No one, 
however, has borne the weight of our system of Federal collateral 
review more heavily in this case than has the one surviving victim of 
the June 4, 1983 attack. Josh Ryen was 8 years old when he was stabbed 
in his parents' bedroom and his parents and sister were murdered. He 
had been Christopher Hughes's neighbor and best friend. As of last 
year, however, Mary and Bill Hughes had not seen Josh since he was 
airlifted by helicopter from the scene of the murders to Loma Linda 
University hospital. Then on April 22, 2005, Josh Ryen appeared at the 
latest Federal habeas corpus hearing for the man who killed his family. 
He is now 30 years old. Pursuant to the recently enacted Crime Victims' 
Rights Act, he gave a brief statement before the court. I will quote 
Josh Ryen's statement in its entirety:

       The first time I met Kevin Cooper I was 8 years old and he 
     slit my throat. He hit me with a hatchet and put a hole in my 
     skull. He stabbed me twice, which broke my ribs and collapsed 
     one lung. I lived only because I stuck four fingers in my 
     neck to slow the bleeding, but I was too weak to move. I laid 
     there 11 hours looking at my mother who was right beside me.
       I know now he came through the sliding glass door and 
     attacked my dad first. He was lying on the bed and was struck 
     in the dark without warning with the hatchet and knife. He 
     was hit many times because there is a lot of blood on the 
     wall on his side of the bed.
       My mother screamed and Cooper came around the bed and 
     started hitting her. Somehow my dad was able to struggle 
     between the bed and the closet but Cooper bludgeoned my 
     father to death with the knife and hatchet, stabbing him 26 
     times and axing him 11. One of the blows severed his finger 
     and it landed in the closet.
       My mother tried to get away but he caught her at the bottom 
     of the bed and he stabbed her 25 times and axed her 7.
       All of us kids were drawn to the room by mom's screams. 
     Jessica was killed in the doorway with 5 ax blows and 46 
     stabs. I won't say how many times my best friend Chris was 
     stabbed and axed, not because it isn't important, but because 
     I don't want to hurt his family in any way, and they are 
     here.
       After Cooper killed everyone, and thought he had killed me, 
     he went over to my sister and lifted her shirt and drew 
     things on her stomach with the knife. Then he walked down the 
     hallway, opened the refrigerator, and had a beer. I guess 
     killing so many people can make a man thirsty.
       I don't want to be here. I came because I owe it to my 
     family, who can't speak for themselves. But by coming I am 
     acknowledging and validating the existence of Kevin Cooper, 
     who should have been blotted from the face of the earth a 
     long time ago. By coming here it shows that he still controls 
     me. I will be free, my life will start, the day Kevin Cooper 
     dies. I want to be rid of him, but he won't go away.
       I've been trying to get away from him since I was 8 years 
     and I can't escape. He haunts me and follows me. For over 20 
     years all I've heard is Kevin Cooper this and Kevin Cooper 
     that. Kevin Cooper says he is innocent, Kevin Cooper says he 
     was framed, Kevin Cooper says DNA will clear him, Kevin 
     Cooper says blood was planted, Kevin Cooper says the tennis 
     shoes aren't his, Kevin Cooper says three guys did it, Kevin 
     Cooper says police planted evidence, Kevin Cooper gets 
     another stay from another court and sends everyone off on 
     another wild goose chase.
       The courts say there isn't any harm when Kevin Cooper gets 
     another stay and another hearing. This just shows they don't 
     care about me, because every time he gets another delay I am 
     harmed and have to relive the murders all over again. Every 
     time Kevin Cooper opens his mouth everyone wants to know what 
     I think, what I have to say, how I'm feeling, and the whole 
     nightmare floods all over me again: the barbecue, me begging 
     to let Chris spend the night, me in my bed and him on the 
     floor beside me, my mother's screams, Chris gone, dark house, 
     hallway, bushy hair, everything black, mom cut to pieces 
     saturated in blood, the nauseating smell of blood, eleven 
     hours unable to move, light filtering in, Chris' father at 
     the window, the horror of his face, sound of the front door 
     splintering, my pajamas being cut off, people trying to save 
     me, the whap whap of the helicopter blades, shouted 
     questions, everything fading to black.
       Every time Cooper claims he's innocent and sends people 
     scurrying off on another wild goose chase, I have to relive 
     the murders all over again. It runs like a horror movie, over 
     and over again and never stops because he never shuts up. He 
     puts PR people on national television who say outrageous 
     things and then the press wants to know what I think. What I 
     think is that I would like to be rid of Kevin Cooper. I would 
     like for him to go away. I would like to never hear from 
     Kevin Cooper again. I would like Kevin Cooper to pay for what 
     he did.
       I dread happy times like Christmas and Thanksgiving. If I 
     go to a friend's house on holidays I look at all the mothers 
     and fathers and children and grandchildren and get sad 
     because I have no one. Kevin Cooper took them from me.
       I get terrified when I go into any place dark, like a house 
     before the lights are on. I hear screams and see flashbacks 
     and shadows. Even with lights on I see terrible things. After 
     I was stabbed and axed I was too weak to move and stared at 
     my mother all night. I smelled this overpowering smell of 
     fresh blood and knew everyone had been slaughtered.
       Every day when I comb my hair I feel the hole where he 
     buried the hatchet in my head, and when I look in the mirror 
     I see the scar where he cut my throat from ear to ear and I 
     put four fingers in it to stop the bleeding which, they say, 
     saved my life. Every year I lose hearing in my left ear where 
     he buried the knife.
       Helicopters give me flashbacks of life flight and my 
     Incredible Hulks being cut off by paramedics. Bushy hair 
     reminds me of the killer. Silence reminds me of the quiet 
     before the screams. Cooper is everywhere. There is no escape 
     from him.
       I feel very guilty and responsible to the Hughes family 
     because I begged them to let Chris spend the night. If I 
     hadn't done that he wouldn't have died. I apologize to them 
     and especially to Mr. Hughes for having to find us and see 
     his son cut and stabbed to death.
       I thank the judge who gave my grandma custody of me because 
     she took good care of me and loves me very much.
       I'm grateful to the ocean for giving me peace because when 
     I go there I know my mother and father and sister's ashes are 
     sprinkled there.
       Kevin Cooper has movie stars and Jesse Jackson holding 
     rallies for him, people carrying signs, lighting candles, 
     saying prayers. To them and you I say:

     I was 8 when he slit my throat,
     It was dark and I couldn't see.
     Through the night and day I laid there, trying to get up and 
           flee.
     He killed my mother, father, sister, friend,
     And started stalking me.
     I try to run and flee from him but cannot get away,
     While he demands petitions and claims, some fresh absurdity.
     Justice has no ear for me nor cares about my plight, while 
           crowds pray for the killer and light candles in the 
           night.
     To those who long for justice and love truth which sets men 
           free, When you pray your prayers tonight, please 
           remember me.

  Even those who oppose capital punishment--who would like to see it 
abolished--should not support a system that treats the victims of 
violent crimes in this way. Creating a fair, efficient, and expeditious 
system of Federal habeas review should be a bipartisan cause. Indeed, 
it was President Clinton who noted after the enactment of the 1996 
AEDPA reforms that ``it should not take eight or nine years and three 
trips to the Supreme Court to finalize whether a person in fact was 
properly convicted or not.''
  I believe that section 507 of the PATRIOT Reauthorization Act, by 
extending the benefits of chapter 154 to States that provide counsel to 
capital defendants on postconviction review, will help to achieve that 
goal. In Murray v. Giarratano, 492 U.S. 1, 1989, the Supreme Court held 
that States are not constitutionally required to provide counsel in 
State postconviction proceedings, even in capital cases. In AEDPA, 
Congress added chapter 154 to title 28 of the United States Code, 
offering the States an incentive to provide qualified counsel in such 
proceedings. Among the incentives was an expedited process, with time 
limits on both the district courts and the courts of appeals.
  AEDPA left the decision of whether a State qualified for the 
incentive to the same courts that were impacted by the time limits. 
This has proved to be a mistake. Chapter 154 has received an extremely 
cramped interpretation, denying the benefits of qualification to

[[Page 2446]]

States that do provide qualified counsel and eliminating the incentive 
for other States to provide counsel. In Ashmus v. Woodford, 202 F.3d 
1160, 2000, the Ninth Circuit held that California did not qualify 
because its competency standards were in the State's Standards of 
Judicial Administration rather than its Rules of Court, a hypertech-
nical reading of the statute. In Spears v. Stewart, 283 F.3d 992, 1018, 
2001, the Ninth Circuit held that even though Arizona had established a 
qualifying system and even though the State court had appointed counsel 
under that system, the Federal court could still deny the State the 
benefit of qualification because of a delay in appointing counsel.
  Section 507 of this bill abrogates both of these holdings and removes 
the qualification decision to a neutral forum. Under new section 2265, 
the Attorney General of the United States will decide if a State has 
established a qualifying mechanism, and that decision will be reviewed 
by the D.C. Circuit, the only Federal circuit that does not handle 
State-prisoner habeas cases and therefore is not impacted by the 
qualification decision. The requirements for certification are removed 
from section 2261(b) and placed in the new section 2265(a). The 
``statute or rule of court'' language construed so severely by Ashmus 
is removed, allowing the States flexibility on how to establish the 
mechanism within the State's judicial structure. There is no longer any 
requirement, express or implied, that any particular organ of 
government establish the mechanism for appointing and paying counsel or 
providing standards of competency--States may act through their 
legislatures, their courts, through agencies such as judicial councils, 
or even through local governments.
  Once a State is certified as having a qualifying mechanism, chapter 
154 applies to all cases in which counsel was appointed pursuant to 
that mechanism, and to cases where counsel was not appointed because 
the defendant waived counsel, retained his own, or had the means to 
retain his own. ``Pursuant'' is intended to mean only that the State's 
qualifying mechanism was invoked to appoint counsel, not to empower the 
Federal courts to supervise the State courts' administration of their 
appointment systems. Paragraph (a)(3) of new section 2265 forbids 
creation of additional requirements not expressly stated in the 
chapter, as was done in the Spears case.
  When section 507 was being finalized, I and others were presented 
with arguments that some mechanism should be created for 
``decertifying'' a State that has opted in to chapter 154 but that 
allegedly has fallen out of compliance with its standards. I ultimately 
concluded that such a mechanism was unnecessary, and that it would 
likely impose substantial litigation burdens on the opt-in States that 
would outweigh any justification for the further review. The States are 
entitled to a presumption that once they have been certified as 
chapter-154 compliant, they will substantially maintain their counsel 
mechanisms. After all, to this day, both California and Arizona have 
kept up their postconviction counsel mechanisms and standards since the 
late 1980s and the mid-1990s, respectively, even though neither State 
has ever received any benefits under chapter 154. This history alone 
suggests that it is unnecessary to provide a mechanism for 
``decertification'' of States that have opted in. Moreover, if such a 
means of post-opt-in review were created, it inevitably would be 
overused and abused. In my home State of Arizona, defense attorneys in 
the past have boycotted the 154 system. The Ninth Circuit later used 
the delays in appointing chapter 154 counsel stemming from this boycott 
as grounds for denying Arizona the benefits of chapter 154 in the 
Spears case. In light of this history, I thought it best to create a 
system of one-time certification, with no avenues to challenge or 
attempt to repeal the State's continuing chapter-154 eligibility. The 
consequences of opting in to chapter 154 should not be perpetual 
litigation over the State's continuing eligibility. Even if defense 
lawyers in Arizona do boycott the State's system again, the resultant 
delays in appointing counsel are unlikely to prejudice their clients, 
who typically want delay in the resolution of their cases. And the 
occasional case where such delay might prejudice a petitioner simply is 
not worth the cost of creating opportunities to force the State to 
continually litigate its chapter 154 eligibility. Therefore, under 
section 507, once a State is certified for chapter 154, that 
certification is final. There is no provision for ``decertification'' 
or ``compliance review'' after the State has been made subject to 
chapter 154.
  The incentive for a State to try to satisfy chapter 154's counsel 
requirement is the array of procedural benefits that 154 provides to 
States defending capital convictions and sentences on Federal habeas. 
Section 2266 applies a series of deadlines for court action on chapter 
154 applications: district courts will be required to rule on such 
applications 15 months after they are filed.
  Allow me as an aside to describe some of the back history of this 
particular deadline. Current pre-conference-report law gives district 
courts only 180 days to rule on a 154 petition. This probably is not 
enough time for district courts to rule on these cases, even with the 
streamlining provided by the rest of chapter 154. Nor was this reality 
obscure to Congress in 1996. I worked on developing this provision in 
my first year in the Senate, in cooperation with the Arizona Attorney 
General's Office and then-California Attorney General Dan Lungren, 
among others. The bill's managers initially adopted a 180-day deadline 
as a bargaining position, but had always intended to extend this limit 
to 1 year. Unfortunately, at a certain point in the legislative 
process, other participants decided that they would object to making 
any change whatsoever to the AEDPA, even to correct scrivener's or 
grammatical errors--or to liberalize this deadline. Thus we ended up 
with 180 days. In order to avoid imposing impossible burdens on the 
district courts, I proposed extending this deadline to 15 months in the 
SPA, and this extension has been included in section 507. I likely 
would receive a cool reception from Chief Judge McNamee upon my next 
visit to the Phoenix Federal courthouse had section 507 given Arizona 
access to chapter 154 without at least somewhat liberalizing this 
particular deadline.
  Other relevant deadlines imposed by section 2263 are that the court 
of appeals must rule on a case 120 days after briefing has been 
completed. That court also must rule on a petition for rehearing and 
suggestion for rehearing en banc within 30 days of the filing of the 
petition and any reply. And if the court grants rehearing or goes en 
banc, it must decide the case within 120 days of doing so.
  These deadlines are created by chapter 154 for a reason. In too many 
cases, Federal courts' resolution of capital habeas petitions has been 
unreasonably slow. In the Fornoff case, for example, the petition 
remained before the Federal district court from 1992 to 1999, and that 
court did not even hold an evidentiary hearing in the case during that 
time. And this is far from the most extreme example of habeas delay. At 
the end of her written testimony before the House Crime Subcommittee, 
Mrs. Fornoff included several examples of other cases involving habeas 
petitioners who had murdered children and whose Federal habeas 
proceedings have been unconscionably delayed. All of these examples 
involved delays in the district courts much longer than the 7-year 
delay in the case of the man who killed Christy Ann Fornoff: the 
several cases that Mrs. Fornoff described had remained before one 
Federal district court for periods of 10 years, 12 years, 13 years, and 
in one case, for 15 years. I quote the portion of Mrs. Fornoff's 
testimony describing these cases:

       Benjamin Brenneman [was] 12 years old [when he was killed 
     in] 1981. This case is surprisingly similar to my daughter's 
     case. Benjamin also was a newspaper carrier, and also was 
     kidnaped, sexually assaulted, and killed while delivering 
     newspapers at an apartment complex. Benjamin's killer tied 
     him up in a way that strangled him when he moved. Police 
     began by questioning a man in the building who was a prior 
     sex offender. They found Benjamin's special orthopedic 
     sandals in his

[[Page 2447]]

     apartment. When they interviewed him, he admitted that he 
     kidnaped Benjamin, but claimed that ``he was alive when I 
     left him.'' Police found Benjamin's body in a nearby rural 
     area the next day. (More information about the case is 
     available in the court opinion for the State appeal, People 
     v. Thompson, 785 P.2d 857.)
       Benjamin's killer was convicted and sentenced to death. 
     After the State courts finished their review of the case, the 
     killer filed a habeas corpus petition in the Federal District 
     Court in 1990. Today, 15 years later, the case is still 
     before that same court. In 15 years, the district court still 
     has not ruled on the case! To put the matter in perspective, 
     so far, and with no end in sight, the litigation before that 
     one district court has outlived Benjamin by three years. This 
     is simply unconscionable.
       Michelle and Melissa Davis [were] ages 7 and 2 [when they 
     were murdered in] 1982. An ex-boyfriend of the sister of 
     Kathy Davis took revenge on the sister for breaking off their 
     relationship by killing Kathy's husband and her two young 
     daughters, Michelle and Melissa. The killer confessed to the 
     crime. The State courts finished their review of the case in 
     1991. (People v. Deere, 808 P.2d 1181.) The next year, the 
     defendant went to the Federal District Court. He remained 
     there for the rest of the decade, until 2001. When he lost 
     there, he appealed, and in 2003, the Federal Court of Appeals 
     for the Ninth Circuit sent the case back to the district 
     court for another hearing. Today, 14 years after State 
     appeals were completed, and 23 years after Michelle and 
     Melissa were taken from their mother, the case remains before 
     the same district court.
       Vanessa Iberri [was] 12 years old [when she was killed in] 
     1981. Vanessa and her friend Kelly, also 12 years old, were 
     both shot in the head while walking through a campground in 
     1981. Kelly survived, but Vanessa did not. The killer did not 
     dispute that he shot the two girls. (The case is described in 
     People v. Edwards, 819 P.2d 436.) The State courts finished 
     their review of the case in 1991--already a long time. The 
     killer then went to Federal court in 1993. The Federal 
     District Court finally held an evidentiary hearing in 
     December 2004, and dismissed the case in March of this year. 
     Just now, 12 years after the case entered the Federal courts, 
     and 24 years after the murders occurred, the appeal to the 
     Federal Court of Appeals is just beginning.
       Michelle Melander [was] 5 months old [when she was murdered 
     in] 1981. Michelle, who was just a five-month-old baby, and 
     her brother Michael, then 5 years old, were kidnaped in 
     Parker, Arizona, in July 1981. The killer dropped off Michael 
     along the road. Michelle's body was discovered six days later 
     at a garbage dump several miles down the same road. She had 
     been severely beaten and sexually mutilated. The State court 
     opinion describes the many injuries that this helpless baby 
     suffered. The man who committed this horrific crime later 
     attempted to kidnap and rape a 10-year-old girl.
       State courts finished their review of his case in 1991. 
     (People v. Pensinger, 805 P.2d 899.) The case then went to 
     Federal District Court in 1992. The defendant raised new 
     claims that he had never argued in state court, so the 
     Federal court sent the case back to state court. Five years 
     later, the case returned to Federal court. Today, the case 
     remains before the same Federal District Court where the 
     Federal appeals began in 1992. Baby Michelle would be 24 
     years old now if she had lived, and there is no end in sight 
     for her killer's appeals.

  Other examples of extreme delays on Federal habeas have been provided 
to me by State prosecutors. Clarence Ray Allen, who was executed by the 
State of California earlier this year, had begun his Federal habeas 
proceedings in 1988--they lasted for over 17 years. Lawrence Bittaker 
was convicted of four murders, four kidnappings, and nine rapes by the 
State of California in 1981. He filed a habeas petition in the Federal 
district court in 1991. That petition still is pending before the same 
Federal district court today. Alejandro Ruiz was convicted and 
sentenced to death for three murders in 1980. He initiated Federal 
habeas proceedings in 1989. Those proceedings still are pending before 
the same Federal district court today.
  I do not mean to single out the Federal district courts for 
criticism. Inexplicable delays in Federal habeas review of State 
convictions appear throughout the Federal system. Section 2263's 
deadlines for issuing court-of-appeals decisions and resolving 
appellate rehearing petitions also are manifestly necessary. In Morales 
v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth 
Circuit took 3 years to decide the case after briefing was completed. 
And after issuing its decision, the court took another 16 months to 
reject a petition for rehearing. Similarly, in Williams v. Woodford, 
306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the 
case after briefing was finished--and then waited another 27 months to 
reject a petition for rehearing, for a total delay of almost 4\1/2\ 
years after appellate briefing had been completed. Section 2263 would 
have sharply reduced these delays.
  Chapter 154 also creates uniform, clear rules for addressing 
defaulted and unexhausted claims. It bars all review of any claim that 
has not been addressed on the merits when the Federal petition is 
filed, unless the claim meets one of three narrow exceptions. Section 
2264, by not extending the chapter 153 exhaustion requirement to 
chapter 154, allows Federal courts to treat defaulted and unexhausted 
claims the same way, rather than distinguishing between them and only 
dismissing the former unless they meet an exception, but returning the 
latter to State court for further exhaustion. Chapter 154 eliminates 
the need to ever send a claim to State court for further exhaustion.
  As those familiar with the history of chapter 154 are aware, the 
chapter has its origins in the 1989 Powell Committee Report. See 
Judicial Conference of the United States, Ad Hoc Committee on Federal 
Habeas Corpus in Capital Cases, Committee Report and Proposal, August 
23, 1989. Then-Chief Justice Rehnquist had appointed former Justice 
Lewis Powell to chair this committee, which was charged with studying 
problems with Federal habeas corpus review of capital cases. The report 
identified a lack of finality and unnecessary delays in Federal 
collateral review of State capital cases, and recommended specific 
reforms. With a few significant changes, such as a more restrictive 
standard for holding evidentiary hearings and accommodation of the rule 
of Teague v. Lane, not to mention the changes that are about to be made 
by section 507, the Powell Committee Report's recommendations are what 
is now chapter 154. The Powell Report is thus a very useful guide to 
understanding chapter 154.
  The Powell Committee Report explains, for example, why section 2264 
eliminates the exhaustion rule and treats unexhausted claims the same 
way as defaulted claims. As the Report notes:

       The Committee identified serious problems with the present 
     system of collateral review. These may be broadly 
     characterized under the heading of unnecessary delay and 
     repetition. The lack of coordination between the Federal and 
     state legal systems often results in inefficient and 
     unnecessary steps in the course of litigation. Prisoners, for 
     example, often spend significant time moving back and forth 
     between the Federal and state systems in the process of 
     exhausting state remedies.

  The Powell Committee Report then describes its proposed approach to 
unexhausted claims:

       Federal habeas proceedings under the proposal will 
     encompass only claims that have been exhausted in state 
     court. With the counsel provided by the statute, there should 
     be no excuse for failure to raise claims in state court. The 
     statute departs from current statutory exhaustion practice by 
     allowing for immediate presentation of new claims in Federal 
     court in extraordinary circumstances.

  The Powell Committee Report further elaborates on this change to the 
exhaustion requirement in its comment following the presentation of the 
language that became section 2264:

       If a petitioner asserts a claim not previously presented to 
     the state courts, the district court can consider the claim 
     only if one of three exceptions to the general rule listed in 
     [section 2264(a)] is applicable. . . .
       As far as new or ``unexhausted'' claims are concerned, 
     section [2264] represents a change in the exhaustion doctrine 
     as articulated in Rose v. Lundy, 455 U.S. 509 (1982). Section 
     [2264] bars such claims from consideration unless one of the 
     [subsection (a)] exceptions is applicable. The prisoner 
     cannot return to state court to exhaust even if he would like 
     to do so. On the other hand, if a [subsection (a)] exception 
     is applicable, the district court is directed to conduct an 
     evidentiary hearing [note that this aspect of the Powell 
     Committee recommendation is superseded by section 2254(e)] 
     and to rule on the new claim without first exhausting state 
     remedies as Rose v. Lundy now requires. Because of the 
     existence of state procedural default rules, exhaustion is 
     futile in the great majority of cases. It serves the state 
     interest of comity in theory, but in practice it results in 
     delay and undermines the state interest in the finality of 
     its criminal convictions. The Committee believes that the 
     States would prefer

[[Page 2448]]

     to see post-conviction litigation go forward in capital 
     cases, even if that entails a minor subordination of their 
     interest in comity as it is expressed in the exhaustion 
     doctrine.

  Section 2264 implemented the Powell Committee's approach by limiting 
Federal habeas review under chapter 154 to ``claims that have been 
raised and decided on merits in the State courts,'' and, in subsection 
(b), by declining to extend the exhaustion principles of section 
2254(b) and (c) to chapter 154. This system shifts the focus away from 
and eliminates the need to exhaust State remedies for every claim. 
Section 2264 does not require exhaustion, but, rather, adjudication on 
the merits in State court or satisfaction of one of subsection (a)'s 
exceptions. If an unexhausted or otherwise not-adjudicated-on-the-
merits claim can meet one of those subsection (a) exceptions, then it 
can go forward, because the exhaustion requirement does not apply. And 
in any event, even if a chapter 154 prisoner, for whatever reason, 
still wanted to exhaust State remedies for a new claim after he has 
filed his Federal petition, he would not be able to do so and then 
return to Federal court: unlike chapter 153, chapter 154 sharply 
curtails amendments to petitions and thus would make it all but 
impossible to amend the newly exhausted claim back into the Federal 
petition. Under chapter 153's stay-and-abey regime, ``a district court 
may, in its discretion, allow a petitioner to amend a mixed petition by 
deleting the unexhausted claims, hold the exhausted petition claims in 
abeyance until the unexhausted claims are exhausted, and then allow the 
petitioner to amend the stayed petition to add the now-exhausted 
claims.'' James v. Pliler, 269 F.3d 1124, 9th Cir. 2001. As the courts 
have explained, chapter-153 habeas petitioners are permitted to ``stay 
and abey'' and then come back to Federal court because chapter 153 
petitions are subject to the relatively liberal amendment standards of 
Federal Rule of Civil Procedure 15. See Anthony v. Cambra, 263 F.3d 
568, 576-578 (9th Cir. 2000). This system would not be possible under 
chapter 154's section 2266(b)(3)(B), however. That subparagraph would 
bar the post-exhaustion amendment that restores the newly exhausted 
claims unless the amendment could meet the exacting standards of the 
successive-petition bar.
  Instead of staying and abeying and further exhausting, the chapter 
154 petitioner will go forward: his claims in the Federal petition will 
have either been raised and adjudicated on the merits in State court, 
they will satisfy one of the section 2264(a) exceptions, or they will 
be dismissed, and Federal adjudication of the merits of the claims that 
remain before the court will commence immediately. This streamlined 
approach is what makes chapter 154's deadlines for district court 
adjudication possible. Obviously, if applicants were expected to use 
the stay-and-abeyance system, and proceedings were put on hold so that 
another round of State-court review could be completed, district courts 
would not be able to resolve chapter 154 petitions within 15-month 
limit, much less the 180 days required prior to 2006, that is imposed 
by section 2266.
  Section 2264's abolition of stay-and-abey would have made a real 
difference in some of the cases that I have described. For example, in 
the case of the man who killed Mary Ann Hughes's son, eliminating the 
need to return to State court to exhaust new claims would have reduced 
the delay in the Federal proceedings by nearly 3 years. And in the case 
of Michelle Melander, the baby girl who was killed in 1981 whose case 
is described in Carol Fornoff's testimony, the section 2264 system 
would have eliminated 5 years of delay from the ongoing Federal 
proceedings in that case.
  By requiring that chapter 154 courts only consider claims adjudicated 
on the merits in the State courts, and limiting the exceptions to that 
rule to those enumerated in section 2264(a), chapter 154 also 
effectively eliminates use of several other exceptions to the 
procedural-default doctrine that I believe have proven problematic. The 
chapter 153 procedural-default doctrine derives from the Supreme 
Court's own rules for allowing review of a State court judgment when 
respondent asserts the presence of an adequate and independent State 
bar to review of the Federal question. These exceptions are numerous, 
complex, and in some cases they are overly broad and simply do not 
provide an adequate justification for ignoring State procedural rules. 
It generally is not a significant burden on the States that the U.S. 
Supreme Court has granted itself such broad and amorphous authority to 
override State procedural requirements. The Supreme Court only decides 
a limited number of cases every year. But on Federal habeas, where 
every State criminal conviction effectively is subject to ``appeal of 
right'' in Federal court, application of the full panoply of the U.S. 
Supreme Court's exceptions to the adequate-and-independent State 
grounds rule has become burdensome and unwieldy.
  One exception to the adequate-and-independent State grounds doctrine 
that has proved particularly problematic in the habeas context is the 
rule that a State procedural bar is not adequate to preclude further 
Federal review if the procedural requirement is ``inconsistently 
applied'' by the State courts. Viewed literally and without regard to 
the policies underlying the procedural default doctrine, the 
``inconsistently applied'' standard can have a disturbingly broad 
sweep. This standard can be understood to void any State procedural 
rule that has been altered in any way or that is not strictly enforced 
in absolutely every case.
  Unfortunately, some lower Federal courts have adopted this draconian 
interpretation. For example, the Ninth Circuit has held that if a 
State's highest court clarifies a State procedural rule or reconciles 
competing interpretations of that rule, then that rule was 
``inconsistently applied'' prior to such clarification. As a result, 
the Ninth Circuit deems the State rule ``inadequate'' to be enforced on 
Federal habeas review prior to that point.
  Another problematic area of chapter-153 procedural-default 
jurisprudence is particular Federal courts' interpretation of the 
``independence'' requirement. A State procedural decision cannot serve 
as a bar to further review on the merits if it is not truly 
procedural--i.e., if it is in reality a decision on the merits of the 
Federal claim. Many State courts have incorporated into their 
procedural rules--particularly their deadlines for filing claims--an 
``ends of justice,'' ``plain error,'' or ``manifest injustice'' 
exception that allows State courts to hear the occasional egregious but 
untimely or otherwise improper claim. Presumably, in applying such an 
exception, these State courts perform at least a cursory review of the 
merits of every petition, even those that clearly are untimely. 
Technically, because these State courts conduct such review, their 
deadlines are not purely ``procedural''--they involve some review, 
however fleeting, of the merits--and therefore these deadlines are not 
``adequate'' for habeas purposes. The Ninth Circuit has adopted this 
rather extreme interpretation of the adequacy requirement.
  It is difficult to understate the perverse consequences of the more 
extreme interpretations of the exceptions to the chapter-153 procedural 
default doctrine. By punishing State courts for ever departing from or 
even clarifying their procedural rules, or for exercising discretion to 
hear egregious cases, these interpretations deter State courts from 
making the kind of commonsense decisions that are essential to 
preventing a miscarriage of justice. No system of procedure will ever 
be perfect; every system will always require some exceptions in order 
to operate fairly and efficiently. Yet under some Federal courts' 
interpretations of procedural default, unless the State court adopts a 
zero-tolerance approach to all untimely claims, no matter how worthy of 
an exception, the State procedural rule is at risk of being voided for 
all Federal habeas cases.
  In Arizona, litigants have seen the inevitable consequences of the 
Ninth Circuit's no-good-deed-goes-unpunished rule: when liberality 
towards criminal defendants is held against the State on Federal 
habeas, the State will outlaw such liberality. In his August 19, 2005, 
answers to written questions submitted

[[Page 2449]]

to him by Senator Leahy, Arizona prosecutor John Todd described the 
effect of the Ninth Circuit's application of an extreme 
``independence'' requirement:

     as a result of Federal court rulings, the Arizona Legislature 
     repealed the requirement that all criminal cases be reviewed 
     by the state appellate courts for fundamental error. When an 
     appellate court in Arizona reviewed the entire record for 
     fundamental error, it did not matter that the defendant 
     procedurally defaulted the issue. If the error were serious 
     enough, even if it was only an error of state law, a 
     defendant would receive relief in state court through this 
     fundamental error review. Fearing that the Ninth Circuit's 
     decision in Beam v. Paskett, 3 F.3d 1301, 1305 (9th Cir. 
     1993), would open Arizona criminal cases to endless 
     litigation, the Arizona Legislature repealed Ariz. Rev. Stat. 
     Ann. Sec. 13-4035 in 1995.

  This is not a result that anyone should want. States should not be 
discouraged from affording broad review to a prisoner's claims in State 
court or exercising flexibility in their application of procedural 
rules. Yet in the Ninth Circuit, State executives would be ill advised 
to adopt any procedural rule that affords courts any discretion or 
includes any plain-error type exceptions.
  The Ninth Circuit has accounted for a disproportionate share of all 
Federal court of appeals decisions identifying exceptions to the 
chapter-153 procedural default doctrine, and has issued several 
particularly extreme interpretations of the doctrine. The States in 
that circuit effectively are subject to a different habeas regime. The 
Ninth Circuit has now voided State procedural rules in six of the 
States under its jurisdiction. It has found State procedures either 
inadequate or insufficiently independent to limit Federal review in 
California, Oregon, Arizona, Washington, Idaho, and Nevada.
  Section 2264 eliminates these problems. Rather than incorporating the 
procedural-default doctrine and all of its baggage, it starts fresh; it 
bars all claims not raised and decided on the merits unless one of 
three narrow exceptions applies. It does not matter under chapter 154 
that a Federal court thinks that the State's rules are not ``adequate'' 
or are not sufficiently ``independent,'' because the adequacy and 
independence of the State rule no longer are the basis for barring 
review of the claim in Federal court. Under chapter 154, that basis 
will be section 2264, which employs its own standard and exceptions. 
And under that section, no longer will the labyrinthine body of caselaw 
governing the Supreme Court's certiorari jurisdiction over cases 
decided on State-law grounds be applied to every State capital 
conviction on Federal collateral review.
  Section 2264 also eliminates the overused ``ineffective assistance 
gateway'' that is a frequent feature of chapter 153 litigation. Under 
chapter 153, litigants often seek to recast claims that they know are 
defaulted as claims of ineffective assistance of counsel. They argue 
that the default should be excused because State trial or appellate 
counsel was ineffective. Chapter 154 does not include this exception. 
If a claim of ineffective assistance of trial or appellate counsel 
itself was raised and decided on the merits in State court, that same 
claim can be raised in Federal court. But otherwise, chapter 154 
charges petitioners with the acts of their attorneys. The whole point 
of chapter 154 is to persuade States to establish mechanisms for 
providing defendants with qualified postconviction counsel. If a State 
has opted in to chapter 154, the petitioner presumptively received 
qualified counsel at all stages of his State proceedings, and 
opportunities to litigate issues of counsel competency should be scaled 
back. If the factual predicate of a claim could have been discovered 
through the exercise of due diligence, then per paragraph (3) of 
section 2264(a), regardless of what the attorney did or did not do, 
that claim does not qualify for an exception to the main rule of 
2264(a) and it cannot be raised in Federal court.
  It also bears mention that section 507 includes a retroactivity 
provision that my Arizona colleague, Congressman Flake, thought 
particularly important. New section 2265(a)(2) provides that the date 
that a State established the mechanism by which it qualifies for 
chapter 154 ``shall be the effective date of the certification under 
this subsection.'' This was intended to ensure that if a State 
established a mechanism for providing qualified counsel to capital 
defendants on postconviction review prior to the formal designation of 
a State as chapter-154 eligible--or even prior to the enactment of 
chapter 154--then all capital defendants who received counsel after the 
establishment of that mechanism shall be subject to chapter 154, even 
if they filed a Federal petition before the State is certified as 
chapter-154 eligible.
  I had originally thought this provision sufficient to ensure that a 
State would receive the full benefits of chapter 154 even for Federal 
petitions filed before the State is certified as chapter-154 compliant. 
But questions of retroactivity often prove more complicated than they 
first appear. Representative Flake raised with me the question of 
whether even if a Federal petition filed precertification is deemed 
subject to chapter 154, Federal courts could still find that the 
procedural benefits of chapter 154 only apply to that case on a going-
forward basis. In other words, the effective-date provision guarantees 
that even a prefiling petition is now governed by chapter 154, but 
chapter 154's procedural restrictions might be construed to not apply 
to what is already in that petition. For States such as Arizona, this 
would mean--assuming, of course, that I am correct in predicting that 
the U.S. Attorney General will find Arizona 154-eligible--that section 
507 does not completely undo the damage done by the Spears case. It is 
possible, for example, that in Spears itself or in subsequent cases 
that should have been subject to chapter 154, additional claims have 
been amended into the petition that would not satisfy 2266(b)(3)(B), or 
unexhaus-
ted claims already may have been returned to State court for further 
exhaustion and the Federal petition stayed.
  Given that stay-and-abey sometimes adds 5 years to the time that it 
takes to address a Federal petition, Mr. Flake and I decided that it 
should be made clear that the whole petition would be subject to 
chapter 154, not just new claims and amendments added after the State 
is certified as 154 eligible. To that end, subsection (d) was inserted 
into the middle of section 507 to ensure that the 154 changes--
including the effective-date provision--would operate against pending 
cases. In effect, this provision guarantees the even for a pending 
case, the effective date provision applies retroactively and the case 
is regarded as always having been subject to chapter 154. Thus once a 
State is certified as 154-eligible and a particular petition falls 
within that chapter's sweep, the courts should review the whole 
petition and treat it as if chapter 154 had been applicable since 
before the petition was filed. Claims added via post-answer amendments 
should be reviewed for consistency with section 2266(b)(3)(B). If they 
do not qualify, they should be struck, just as they would have been if 
the petition had been governed by chapter 154 at the time when the 
amendment was filed. And most importantly, no unexhausted claim in a 
chapter-154 petition may be permitted to serve as a basis for ``stay 
and abey.'' Either that claim will satisfy one of the 2264(a) 
exceptions, and review of that claim and ``raised and decided'' claims 
in the petition will go forward immediately, or the claim will not meet 
the exception, it will be dismissed, and review of the rest of the 
proper claims in that petition will go forward immediately. In either 
event, review of all Federal petitions made subject to chapter 154 will 
go forward immediately, though the petitioner may, of course, continue 
to simultaneously pursue State review of the unexhausted claim, and the 
chapter 154 time deadlines will start running. Per paragraph (d)(2), 
that deadline does not run until section 507 is enacted with regard to 
a particular State--meaning that it does not run until the State is 
certified as chapter-154 eligible pursuant to section 507. Under 
section 507, once a petition is made subject to chapter 154, it can no 
longer be held in abeyance so that the petitioner can pursue State 
exhaustion of unexhaus-
ted claims.

[[Page 2450]]

  Finally, I would like to thank those individuals who have been 
important to the enactment of section 507. This group includes Mike 
O'Neill and Brett Tolman of Chairman Specter's staff, Mike Volkov of 
Chairman Sensenbrenner's staff, and Brian Clifford of Congressman 
Flake's staff. I also thank Kent Scheidegger of the Criminal Justice 
Legal Foundation, who came up with the idea that became section 507. 
Finally, I also thank Chairman Specter, who was willing to accommodate 
me on a matter of importance to prosecutors and crime victims in the 
State of Arizona by including section 507 in this conference report.
  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. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so 
ordered.
  Mr. FEINGOLD. Mr. President, in a few minutes, the Senate will 
conclude a process that began over a year ago by reauthorizing the 
PATRIOT Act. I will have a few closing remarks, but first I want to 
take this opportunity to thank the extraordinary staff who have worked 
on this bill for so long. These men and women, on both sides of the 
aisle, have worked extremely hard, and they deserve to be recognized. 
Before I yield the floor, I will recognize the staff by name.
  Mr. President, beginning in November, when we first saw a draft of 
the conference report, I have spoken at length about the substance of 
this bill. I hoped that when we started the task of reauthorizing the 
PATRIOT Act at the beginning of last year, the end product would be 
something the whole Senate could support. We had a real chance to pass 
a bill that would both reauthorize the tools to prevent terrorism and 
fix the provisions that threaten the rights and freedoms of innocent 
Americans.
  This conference report, even as amended by the bill incorporating the 
White House deal that we passed yesterday, falls well short of that 
goal. And so, of course, I will vote no.
  Protecting the country from terrorism while also protecting our 
rights is a challenge for every one of us, particularly in the current 
political climate, and it is a challenge we all take seriously. I know 
many Senators who will vote for this reauthorization bill in a few 
minutes would have preferred to enact the bill we actually passed, 
without a single objection, in the Senate in July of last year.
  I appreciate that so many of my colleagues came to recognize the need 
to take the opportunity presented by the sunset provisions included in 
the original PATRIOT Act to make changes that would better protect 
civil liberties than did the law we enacted in haste in October 2001. 
Nevertheless, I am deeply disappointed we have largely wasted this 
opportunity to fix the obvious problems with the PATRIOT Act.
  The reason I spent so much time in the past few days talking about 
how the public views the PATRIOT Act was to make it clear that this 
fight was not about one Senator arguing about the details of the law. 
This fight was about trying to restore the public's trust in our 
Government. That trust has been severely shaken as the public learned 
more and more about the PATRIOT Act which we passed with so little 
debate in 2001 and as the administration resisted congressional 
oversight efforts and repeatedly politicized the reauthorization 
process. The revelations about secret, warrantless surveillance last 
year only confirmed the suspicions of many in our country that the 
Government is, unfortunately, willing to trample the rule of law and 
constitutional guarantees in the fight against terrorism.
  The truth is, the negative reaction to the PATRIOT Act has been 
overwhelming. Over 400 State and local government bodies passed 
resolutions pleading with Congress to change the law. Citizens have 
signed petitions, library associations and campus groups have organized 
to petition the Congress to act. Numerous editorials have been written 
urging Congress not to reauthorize the law without adequate protections 
for civil liberties.
  These things occurred because Americans across the country recognize 
that the PATRIOT Act includes provisions that pose a threat to their 
privacy and to their liberty. These are values--values--that are at the 
very core of what this country represents and of who we are as a 
people.
  In 2001, we were viciously attacked by terrorists who care nothing 
for American freedoms and American values. We, as a people, came 
together to fight back, and we are prepared to make great sacrifices to 
defeat those who would destroy us. But what we will not do, and what we 
cannot do, is destroy our own freedoms in the process.
  Without freedom, we are not America. If we do not preserve our 
liberties, we cannot win this war, no matter how many terrorists we 
capture or kill. That is why the several Senators who have said, at one 
time or another during this debate, things such as, ``Civil liberties 
do not mean much when you are dead,'' are wrong about America at the 
most basic level. It seems they do not understand what America is all 
about. Theirs is a vision that the Founders of this Nation, who risked 
everything for freedom, would categorically reject, and so do the 
American people.
  Americans want to defeat terrorism, and they want the basic character 
of this country to survive and prosper. They want to empower the 
Government to protect the Nation from terrorists, and they want 
protections against Government overreaching and Government 
overreacting. They know it might not be easy, but they expect the 
Congress to figure out how to do it. They do not want defeatism--
defeatism--on either score. They want both security and liberty. And 
unless we give them both--and we can, if we try--then we have failed.
  This fight is not over. The vote today will not assuage the deep and 
legitimate concerns the public has about the PATRIOT Act. I am 
convinced that in the end the Government will respond to the people, as 
it should. We will defeat the terrorists, and we will preserve the 
freedom and liberty that make this the greatest country on the face of 
the Earth.
  It has been a particular privilege to work for so long and so closely 
with the bipartisan group that developed the SAFE Act. Each Senator is 
supported by dedicated and talented staff, and let me mention a few of 
them now. For Senator Sununu, Dave Cuzzi. Joe Zogby for Senator Durbin; 
Brooke Roberts and Lisa McGrath for Senator Craig; Sam Mitchell with 
Senator Salazar; and Isaac Edwards with Senator Murkowski. Let me also 
recognize Bruce Cohen, Julie Katzman, and Tara Magner with Senator 
Leahy; and Chairman Specter's hardworking team--Mike O'Neill, Brett 
Tolman, and Nick Rossi. Other key staff on the Judiciary Committee 
include Joe Matal with Senator Kyl; Christine Leonard with Senator 
Kennedy; Steve Cash for Senator Feinstein; Paul Thompson with Senator 
DeWine; Reed O'Connor with Senator Cornyn; and Bruce Artim with Senator 
Hatch; Cindy Hayden with Senator Sessions; Preet Bharara with Senator 
Schumer; Chad Groover with Senator Grassley; Eric Rosen with Senator 
Biden; Ajit Pai with Senator Brownback; Mary Chesser with Senator 
Coburn; Nate Jones with Senator Kohl; and James Galyean with Senator 
Graham.
  Staff for a number of Senators not on the committee worked very hard 
on this bill as well. Let me recognize Brandon Milhorn and Jack 
Livingston for Senator Roberts; Mike Davidson, who works for Senator 
Rockefeller; Joe Bryan with Senator Levin; Alex Perkins and John Dickas 
with Senator Wyden; Steve Taylor with Senator Hagel; Ruchi Bhowmik with 
Senator Obama; Mirah Horowitz with Senator Kerry; Caryn Compton with 
Senator Byrd; Eric Buehlmann with Senator Jeffords; and Alan Hicks with 
Senator Frist. And thanks also to Senator Reid's staffers, Ron Weich 
and Serena Hoy, and to our Democratic floor staff--Marty Paone, Lula 
Davis, Gary Myrick, Chris Kang, and Mike Spahn for their help over the 
past several weeks of this debate.

[[Page 2451]]

  Finally, let me sincerely thank my own tireless and dedicated staff: 
Mary Irvine, Paul Weinberger, Sumner Slichter, Chuck Stertz, Bob 
Schiff, Lara Flint, Farhana Khera, Alex Busansky, Sarah Preis, Margaret 
Whiting, Molly Askin, John Haffner, Bharat Ramamurti, Avery Wentzel, 
Tracy Jacobson, and Molly McNab.
  Mr. President, 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.
  Mr. FEINGOLD. Mr. President, I yield back my remaining time.
  The PRESIDING OFFICER. The time is yielded back.
  Mr. FEINGOLD. Mr. President, 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. HATCH. 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. HATCH. Mr. President, I yield myself such time as I may need.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. In more than 4 years since the September 11, 2001, attack 
on the United States, the PATRIOT Act has helped to protect our 
homeland from subsequent terrorist attack. Reauthorizing this effective 
piece of legislation is an important victory in the continued war on 
terror. The PATRIOT Act safeguards freedoms of American citizens while 
aggressively curtailing the opportunities terrorists have to strike. We 
have added many provisions designed to ensure that our civil liberties 
remain unaffected despite the fact that civil libertarians were 
completely unable to point to one incident or provide any example of 
abuses under the original PATRIOT Act.
  As everybody knows, that act was negotiated in the Judiciary 
Committee when I was chairman, and I had a lot to do with it, along 
with Senator Leahy and others. We found that the original PATRIOT Act 
functioned very well in the protection of our country.
  The PATRIOT Act has enjoyed robust public support in Utah since its 
inception. According to Dan Jones and Associates, our leading pollster 
in Utah, every time the firm has polled Utahns in the last 4 years, 60 
percent or more have voiced approval of the antiterrorism measure. A 
poll of U.S. citizens reported that more than 60 percent of Americans 
believed that the Government should do more to protect this country 
from attack. Reauthorizing this act is definitely the right thing to do 
for our country at a time when we tend to forget that there are people 
and governments out there and in here that are committed to wiping the 
United States of America off the face of the Earth. I, for one, will 
stand up and say: Not on my watch.
  We have held hearing after hearing listening to all sides' robust 
debate about how to change the PATRIOT Act. We have had some ridiculous 
suggestions, we have had some good suggestions, and we have had some 
that we have had to take on this bill that really are not very good. My 
prayer is that the terrorists will be foiled by our intelligence and 
law enforcement agencies before another attack. But we have to give 
those agencies the tools to do that. I have a lot of faith in the 
ability of law enforcement men and women to do the job effectively. My 
hope is that those who have agreed that we can take away some of the 
tools afforded these men and women are wrong, that we can prevent 
another attack and reduce the ability of law enforcement to prevent 
those attacks at the same time.
  The additional language that has been demanded in this bill does 
exactly that. It has reduced our ability to be able to protect the 
Nation under the guise that we had to protect civil liberties that were 
never infringed upon in the 4 years that the PATRIOT Act has been in 
existence. I particularly commend Senators Specter and Leahy for the 
work they have done, Congressman Sensenbrenner in the House, and other 
members of the Judiciary Committee in the House. They have worked long 
and hard. There have been some provisions that we had to take in order 
to get this bill reauthorized to protect the American people that we 
wish we didn't have to take. I just hope this bill will work as well as 
the original PATRIOT Act which has done so well in keeping us free of 
terror ever since 9/11.
  I don't think anybody can doubt that. We held some 24 hearings over 
the years when I was chairman on the PATRIOT Act. I demanded that every 
hearing show us where the act has not acted properly, show us where 
there has been a violation, show us where there has been a violation of 
civil liberties, show us where somebody who is a noncriminal has been 
hurt by the PATRIOT Act. The fact is, not one time in all those 
hearings have they been able to come up with one illustration that 
people's civil liberties have been interfered with.
  We passed a bill that was the Hatch-Dole bill back in, I believe it 
was 1996. It was the antiterrorism effective death penalty bill. That 
bill took care of domestic terrorism, but our laws were not up to speed 
with regard to international terrorism. So the PATRIOT Act was the way 
that we got our laws up to speed so that we could work against 
international terrorism. All of these provisions in the original 
PATRIOT Act we basically have in our anticrime laws. So what we did is, 
we had these laws that would enable law enforcement to do a lot of 
things to protect us against the Mafia, against child molesters, 
against pornographers. We brought the PATRIOT Act up to the level of 
those law enforcement tools. That is what the original PATRIOT Act did. 
That wasn't good enough for some of our colleagues. So there has been a 
lot of screaming and shouting about the PATRIOT Act, even though not 
one illustration has been given in the last, really, 5 years that would 
indicate that the original PATRIOT Act had interfered with anybody's 
just civil liberties.
  We need to pass this bill such as it is. We need to pass it and enact 
it into law and give our law enforcement the tools they need to be able 
to protect us. I just wish we could have reenacted the original PATRIOT 
Act. But be that as it may, I compliment the chairman of the Judiciary 
Committee and the distinguished ranking member, Senator Leahy, for the 
work they have done. I don't think it could have happened without them 
and without Chairman Sensenbrenner and others in the House. I express 
my regard for them and my regard for this bill and hope everybody will 
vote for it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I know some time has been specifically 
retained to the Senator from Vermont. Would the Chair be good enough to 
tell me how much time that is?
  The PRESIDING OFFICER. Fourteen and a half minutes.
  Mr. LEAHY. I thank my good friend.
  Today's vote marks another stage in reauthorizing the USA PATRIOT 
Act. Our goal has always been to mend the PATRIOT Act, not to end it. 
To that end we passed a bipartisan bill with better provisions last 
July after it was unanimously reported by the Judiciary Committee. I 
appreciate the kind words of the Senator from Utah. He voted for that 
bill. I voted for that bill. The distinguished chairman of the 
committee, Senator Specter, voted for the bill. We have all been 
chairman of that committee. The bill came here to the floor of the 
Senate, and the Senate voted it out unanimously. That was a good bill.
  Then the House-Senate conference was hijacked. Democratic conferees 
were excluded at the request of the Bush-Cheney administration, and 
congressional Republicans wrote the bill. I worked to get that process 
and the bill back on track and, working with Chairman Specter, we were 
able to make some progress and get some helpful additions and changes. 
But the conference report that was insisted upon

[[Page 2452]]

by the Bush-Cheney administration and passed by Republican leaders 
through the House was still flawed.
  Last December, I worked with a bipartisan coalition of Senators to 
oppose final passage of that conference report and create some 
additional opportunities for improvements. That led to the Sununu bill 
which is in essence an amendment to the conference report. I supported 
Senator Sununu's efforts and praised him for it and those who worked 
with him. I voted for that bill. It contained some of the improvements 
I had pushed for. Our efforts to protect libraries from national 
security letters was very important to me. That is why I supported 
Senator Sununu's bill in spite of the worsening of the gag rule 
provisions insisted upon by the Bush-Cheney administration.
  Now we turn to the conference report. Even with the Sununu bill, 
which I support, the conference report has not been improved 
sufficiently for me to support it. Just as I opposed it last December, 
I continue to oppose it. The bill that the Senate will adopt today 
falls far too short and impinges too greatly on the liberties of 
Americans.
  The Founders made a profound choice when they framed the fourth 
amendment to our Constitution as a measure to ensure the right of the 
people to be secure. The word they used was ``secure.'' The fourth 
amendment is, of course, about guaranteeing our privacy rights and the 
requirement of the judicial check on the Government invading our homes, 
our papers, and our effects. The Founders saw that as the right to be 
secure. As the Constitution and the Bill of Rights were written so 
carefully, every single word holds meaning. They saw a right to be 
secure, and so do I. I believe that Americans' security includes our 
national security, our security from terrorism, and also our right to 
be secure as Americans. That means exercising the liberties and rights 
and freedoms that define us across the world uniquely as Americans.
  I do not believe this bill achieves the balance that we could have 
and should have achieved. The final product would have been better had 
the Bush-Cheney administration and congressional Republicans not 
insisted on locking Democrats out of the negotiations throughout the 
process.
  Still this bill, through our efforts, in some ways represents an 
improvement. It has better sunshine and reporting provisions. I worked 
hard to include these new provisions because sunshine, coupled with 
sunset provisions, adds up to more accountability in the use of these 
Government powers. But some key provisions remain significantly flawed.
  I respect those who conclude that on balance the bill's virtues 
outweigh its vices. And it has both. But I believe we can and should do 
better. I believe America can do better.
  I am one who worked diligently on the original PATRIOT Act in the 
days following the attacks of 9/11. I was chairman of the Judiciary 
Committee. We moved it through in record time. I also voted to 
reauthorize and improve a bipartisan version of the act back in July of 
2005. I joined with Senator Sununu in leading the effort to ensure that 
the provisions did not expire when we reached an impasse last fall.
  In the PATRIOT Act, we provided important and valuable tools for the 
protection of Americans from terrorism, and I have worked and voted to 
preserve them. But I am disappointed that this conference report 
represents a missed opportunity to get it right, to recalibrate the 
balance better, to respect the liberties and rights of Americans while 
protecting us from those who threaten harm.
  I am concerned, as all Americans are, with our security. The 
Presiding Officer and I and thousands of others come to work every day 
in a building that was targeted for destruction by al-Qaida. I cannot 
think of anything I will do in my life that makes me more proud than to 
be in the Senate and come in this building every day. But I want this 
building secure for you, for me, and for everybody who works here. I 
know what it means to be targeted. I was a target of a letter laced 
with deadly anthrax. I was supposed to open it. A couple of innocent 
postal workers who touched the outside of the envelope died before it 
reached me, and it was stopped before it got to my desk. It doesn't hit 
much closer to home than that.
  Many of us recall Benjamin Franklin's wise counsel. He was a man 
involved in a revolution against King George III. Had that revolution 
failed, he and his compatriots would have been hanged. When he was 
working to form a government that would respect liberty and protect 
people, he cautioned that those who would give up essential liberties 
for temporary security deserve neither liberty or security.
  More than 200 years later, we should listen to Benjamin Franklin. We 
have to preserve our essential liberties or we do not preserve what 
makes us Americans.
  The seriously bad parts of this bill are made unacceptable because we 
currently have an administration that does not believe in checks and 
balances and prefers to do so many things in secret. We now see the 
Bush-Cheney administration seeking to twist the authorization for use 
of military force against al-Qaida into a justification for the secret, 
warrantless wiretapping of Americans' e-mails and telephone calls. We 
see them claiming that they need not fulfill their constitutional 
responsibility to faithfully execute the laws but can pick and choose 
among the laws they decide to recognize. Even the Attorney General 
writes to the Judiciary Committee saying their position on the law 
evolves. I did not realize there were such legislative Darwinists in 
this administration that they believe so strongly in evolution when it 
suits their purpose.
  Legislative action should be the clear and unambiguous legal footing 
for any Government powers. These matters should be governed by law, not 
by whim or some shifting conception of the President's inherent 
authority that is exercised in secret. Confronted with this 
administration's unique claims of inherent and unchecked powers, I do 
not believe the restraints we have been able to include in this 
reauthorization of the PATRIOT Act are sufficient.
  I will continue to work to provide the tools that we need to protect 
the American people. I trust that Vermonters will understand that while 
I have repeatedly voted to extend and reauthorize the PATRIOT Act, this 
permanent measure falls short of what they deserve.
  I will continue to work to provide the oversight and checks needed on 
the use of Government power. I know the Senate is going to adopt this 
measure now, but it is a pale shadow of what it could have been had the 
administration not stepped in and told the leadership in the House and 
the Senate that they had to get in line and do what the administration 
wanted, not what an independent Congress should do. It is not the best 
that the greatest democracy on Earth deserves. I will keep fighting for 
us to do better.
  I will continue to work to improve the PATRIOT Act, and I will work 
to provide better oversight over the use of national security letters 
and to remove the un-American restraints on meaningful judicial review. 
I will seek to monitor how sensitive personal information from medical 
files, gun stores, and libraries is obtained and used. I will join 
Senators Specter, Sununu, Craig, and others in introducing a bill to 
improve the PATRIOT Act and reauthorization legislation in several 
important respects. Much is left to be done.
  If Senators work together, much can be accomplished. We will be a 
more secure Nation if we do, and also our liberties will be more 
secure. Certainly, we owe that to the next generation, to protect the 
liberties so many other generations have fought to provide for us.
  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.
  Mr. FRIST. Mr. President, in a few moments, we will be passing the 
PATRIOT Act. By passing it, we will

[[Page 2453]]

make America safer, while safeguarding our civil liberties and privacy. 
America will be safer because law enforcement will have the tools to 
track suspected terrorists and break up terrorist cells before harm is 
done to innocent Americans. America will be safer because the 
conference report goes beyond the original PATRIOT Act to combat 
terrorist financing and money laundering, protect our mass-
transportation systems and the railways, secure our seaports, and fight 
methamphetamine drug abuse--what has grown to become the No. 1 drug 
problem in America--and it does so by restricting access to the 
ingredients that make that poisonous drug.
  Today we are making a statement that we cannot return to a pre-9/11 
structure that could cost innocent Americans their lives. We will not 
return to the days of the pre-9/11 bureaucratic wall that blocked 
information sharing between law enforcement and intelligence. We cannot 
go back. We must go forward.
  Due to persistent delays and obstruction by some of my friends on the 
other side of the aisle, it has taken far too long to get to today's 
vote. By remaining focused on our goals, focused on governing with 
meaningful solutions, to act on principles and to make America safer 
and security our No. 1 priority, we will prevail today.
  I am proud to cast my vote to support the PATRIOT Act, and I urge my 
colleagues to do the same.
  The PRESIDING OFFICER (Mr. Coleman). Under the previous order, the 
hour of 3 p.m. having arrived, the Senate will proceed to vote on the 
adoption of the conference report to accompany H.R. 3199.
  Mr. FRIST. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the conference report. The clerk will 
call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Inouye) is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 89, nays 10, as follows:

                      [Rollcall Vote No. 29 Leg.]

                                YEAS--89

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--10

     Akaka
     Bingaman
     Byrd
     Feingold
     Harkin
     Jeffords
     Leahy
     Levin
     Murray
     Wyden

                             NOT VOTING--1

       
     Inouye
       
  The conference report was agreed to.

                          ____________________