[Congressional Record (Bound Edition), Volume 157 (2011), Part 6]
[Senate]
[Pages 7789-7791]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              PATRIOT ACT

  Mr. UDALL of New Mexico. Madam President, I know Senator Blumenthal 
is coming to speak and Senator Kerry ended a little bit early. I wish 
to get up for a couple minutes now, and when Senator Blumenthal comes 
in I will yield to him because he has some time reserved.
  I wish to talk this morning a little bit about the procedure and what 
we have gone through, in terms of the PATRIOT Act.
  I am very discouraged to see the path we are headed down in terms of 
the PATRIOT Act. I was in the Congress, as the Presiding Officer knows, 
when we voted almost 10 years ago on the PATRIOT Act. It was a sad 
occasion then because it was right after 9/11 and that horrible tragedy 
had happened to our country. But we rushed, in a very big way, to move 
forward with a piece of legislation, the so-called PATRIOT Act. That 
act ended up being something I think many of us regret.
  I wish to read a short passage from the Washington Post at the time, 
which I think showed the haste in which we acted, where we infringed on

[[Page 7790]]

our constitutional rights, and I think the Post says it all. They 
noted:

       Members of both parties complained they had no idea what 
     they were voting on, were fearful that aspects of the . . . 
     bill went too far--yet voted for it anyway.

  I can tell you that, at the time, that is the way it was. We were on 
the floor, we had the vote, and nobody knew what was in the bill. I 
remember one Congressman waiving a copy of the bill, saying there is 
only one copy on the floor and it is hot off the Xerox machine. So it 
is unfortunate we moved so quickly, with so much haste.
  Almost 10 years later, we have not had the debate we need to have on 
this piece of legislation. The greatest deliberative body has not 
weighed in with amendments. We have not moved forward in a serious way 
to try to tackle this piece of legislation that is so important to our 
country, important to our freedom, and important to our liberty.
  What are the problems we should be dealing with? Just very quickly--I 
know my colleague, Senator Blumenthal, is here, so I will quickly move 
on. But two things have happened that indicate we have some serious 
problems with the PATRIOT Act. No. 1, in March of 2007, the inspector 
general of the Department of Justice, in a report concluded that ``the 
FBI engaged in serious misuse of national security letter authority.'' 
The report also said that ``in many instances, the FBI's misuse of 
national security letters violated NSL statutes, Attorney General 
guidelines, or the FBI's own internal policies.''
  So there we have an inspector general telling us that the executive 
branch, with the piece of legislation, moved way beyond where they 
should. That is something we should take a hard look at. I have an 
amendment, and I know others do, on that.
  There have also been courts that have looked at parts of the PATRIOT 
Act and found that act to be unconstitutional. It is incumbent upon us, 
when we have a ruling such as that, to look at it and offer amendments 
and try to make changes.
  I harken back to what I remember reflecting on, on that day when we 
passed the act. Benjamin Franklin--talking about our precious freedom 
and liberty--said this, and I will paraphrase. He said something along 
these lines: Those who would sacrifice liberty for security deserve 
neither. So that is where we are today.
  The so-called PATRIOT Act was enacted nearly a decade ago. Hastily 
passed by a Congress left reeling in the wake of a devastating 
terrorist attack on our Nation. Its supporters described it as a way to 
protect our Nation from similar attacks in the future. But this far-
reaching piece of legislation went much farther than that. The PATRIOT 
Act's most enduring legacy is this: It gave the Federal Government the 
power to undermine the constitutional right to privacy of law-abiding 
citizens.
  I was a Member of the House of Representatives at the time. One of 
only 66 Members to vote against passing the PATRIOT Act. It was an 
unpopular vote at the time. But when the details of the new law were 
examined, its breaches on our civil liberties became clearer. And the 
truth came out. As I have said, the Washington Post noted, ``members of 
both parties complained they had no idea what they were voting on, were 
fearful that aspects of the . . . bill went too far--yet voted for it 
anyway.''
  I also voted against the reauthorization of the PATRIOT Act in 2006, 
as well as the FISA Amendments Act of 2008. In February, I once again 
opposed the extension of three controversial provisions of the PATRIOT 
Act: roving wiretaps . . . government access to ``any tangible items'' 
such as library and business records . . . and the surveillance of 
targets who are not connected to an identified terrorist group.
  Back in 2001, I said on the House floor that I was ``unable to 
support this bill because it does not strike the right balance between 
protecting our liberties and providing for the security of our 
citizens.''
  I went on to explain that ``the saving grace here is that the sunset 
provision forces us to come back and to look at these issues again when 
heads are cooler and when we are not in the heat of battle.''
  And that is exactly what we should do. To govern in a post-9/11 
world, we have to strike a delicate balance: We must prevent the 
terrorist actions of some, without infringing on the constitutional 
guarantees of the vast many. We are failing to strike that balance 
today by forcing reauthorizations of the PATRIOT Act without 
scrutinizing the long-term ramifications of the law.
  Voting for the PATRIOT Act in the shadow of the 9/11 attacks was 
justifiable for many; that horrific day created an unparalleled sense 
of urgency. Today, we are once again up against a sense of urgency to 
renew the controversial provisions of the law set to expire this week.
  But it's no longer due to a recent attack. Instead, the urgency has 
been created by the false argument that our Nation will be more 
vulnerable to attack if we dare to let the provisions expire.
  Let's be honest in this debate--not act hastily out of false fears. 
Even if the provisions expire, the sunsets contain an exception for 
ongoing investigations. And the government can continue to use those 
provisions beyond this week.
  Perhaps the real fear is that the time it would take for real debate 
might postpone our Memorial Day recess. We were promised a real debate 
on this reauthorization, and we should have it!
  With a decade of hindsight, more voices from very different places on 
the political spectrum agree--the entire law bears scrutiny and debate. 
We can no longer neglect our duty. It is our responsibility to review 
the full scope of a law with such serious constitutional challenges 
before rushing to reauthorize it, again.
  I have filed two amendments that I hope the Senate will consider and 
vote on.
  The first is very simple. It extends the expiring provisions until 
September so that we can have a real, substantive debate and an open 
amendment process. This is what we thought the 3-month extension passed 
in February was intended to do, but adequate floor time was never 
scheduled and we have been extremely limited in our ability to offer 
amendments.
  This is by no means an ideal solution. In fact, I voted against the 
short-term extension in February. But if our options are an extension 
until September and an extension until 2015, I am willing to accept the 
lesser of two evils. I thank Senator Merkley for cosponsoring this 
amendment.
  The second amendment I have filed would reinstate a sunset provision 
for national security letters. This provision was in Senator Leahy's 
bill that was reported out of his committee and is in his amendment, 
but I feel strongly that it should also be considered as a stand-alone 
because of the importance of this issue.
  National security letters do not require a court order. They are a 
form of administrative subpoena issued by FBI agents and other 
officials. A March 2007 report by the Department of Justice inspector 
general ``concluded that the FBI engaged in serious misuse of NSL 
authority.''
  It also said that ``in many instances, the FBI's misuse of national 
security letters violated NSL statutes, Attorney General guidelines, or 
the FBI's own internal policies.''
  I believe that there must be a sunset provision for NSLs to ensure 
that Congress periodically reevaluates this power and is certain that 
it is not being abused.
  I have also signed on as a cosponsor to several of my colleagues' 
amendments. Let me just comment briefly about some of these.
  In addition to my NSL amendment, I cosponsored Senator Paul's 
amendment that prohibits any officer or employee of the United States 
from issuing an NSL unless a FISA court judge finds that probable cause 
exists to issue the NSL. This would bring NSLs into compliance with the 
plain text of fourth amendment.
  I am pleased to join Senators Mark Udall and Paul on an amendment 
that would eliminate the possibility of

[[Page 7791]]

``John Doe'' roving wiretaps that identify neither the person nor the 
phone to be wiretapped. This would protect innocent Americans from 
unnecessary surveillance and was part of the JUSTICE Act that I 
cosponsored in the last Congress.
  I have also cosponsored Mark Udall's amendment that would direct the 
attorney general to only delegate the authority for approving ``lone 
wolf'' surveillance to the deputy attorney general. It would also 
require the attorney general to provide notice to Congress of 
applications for ``lone wolf'' surveillance.
  Finally, with Senator Sanders, I have cosponsored an amendment that 
exempts libraries and bookstores from section 215 orders and NSLs. A 
similar amendment passed the House 287-238 in the 2005 PATRIOT Act 
debate, but was later dropped in conference.
  The ACLU, the American Booksellers Association, the American Library 
Association, and the Campaign for Reader Privacy all support this 
amendment.
  All of these amendments are designed to protect the civil liberties 
of all Americans and each deserves a full debate on the floor and an 
up-or-down vote by the Members of this body. Failing to do so is once 
again failing to provide the adequate time and consideration of this 
far-reaching legislation.
  As a former Federal prosecutor and New Mexico's attorney general, I 
am familiar with the needs of law enforcement to pursue suspects and a 
strong supporter of law enforcement. But I also believe that our 
Constitution must be guarded against encroachment, even in the name of 
security.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut is 
recognized.
  Mr. BLUMENTHAL. Madam President, I ask unanimous consent to extend my 
remarks to 15 minutes, if necessary.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The Senator from Connecticut.
  (The remarks of Mr. Blumenthal pertaining to the introduction of S. 
1060 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mr. BLUMENTHAL. Madam President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from South Dakota.

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