[Congressional Record (Bound Edition), Volume 157 (2011), Part 6]
[Senate]
[Pages 8159-8164]
[From the U.S. Government Publishing Office, www.gpo.gov]




       SMALL BUSINESS ADDITIONAL TEMPORARY EXTENSION ACT OF 2011

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to concur in the House 
message to accompany S. 990, which the clerk will report by title.
  The assistant legislative clerk read as follows:

       A motion to concur in the House amendment to the bill (S. 
     990) to provide for an additional temporary extension of 
     programs under the Small Business Act and the Small Business 
     Investment Act of 1958, and for other purposes, with an 
     amendment.

  Pending:

       Reid motion to concur in the amendment of the House to the 
     bill, with Reid amendment No. 347, of a perfecting nature.
       Reid amendment No. 348 (to amendment No. 347), to change 
     the enactment date.
       Reid motion to refer the message of the House on the bill 
     to the Committee on Small Business and Entrepreneurship with 
     instructions, Reid amendment No. 349, to change the enactment 
     date.
       Reid amendment No. 350 (to (the instructions) amendment No. 
     349), of a perfecting nature.
       Reid amendment No. 351 (to amendment No. 350), of a 
     perfecting nature.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10 a.m. will be equally divided and controlled between the two 
leaders or their designees.
  Mr. REID. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time be equally divided.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. McCONNELL. Mr. President, I will proceed on my leader time.
  As we all know, the war on terror did not end last month when 
American forces shot and killed Osama bin Laden in Abbottabad.
  General Clapper, the Director of National Intelligence, wrote to me 
yesterday to explain that this is a moment of elevated threat to our 
country and that the intelligence community is working to analyze the 
information gained at the Bin Laden compound. Al-Qaida and its 
associate groups remain a threat to the United States.
  And our intelligence community, military and law enforcement 
professionals still need the tools that enable them to gather and share 
intelligence in this fight.
  That is why all Americans should be reassured today in knowing that 
these dedicated men and women will continue to have those tools. I have 
no doubt that the 4-year PATRIOT Act extension that Members of both 
parties have agreed to will safeguard us from future attacks, and that 
everything we agreed to in this extension is necessary for this fight.
  As FBI Director Bob Mueller has said, all the authorities it contains 
are critical. Every one requires the prior approval of an independent 
Federal judge. Nothing in this extension has ever been found to be 
unconstitutional. And most of these authorities have not even been 
challenged in court--ever.
  The Senate Intelligence Committee has conducted aggressive oversight 
of the programs authorized by these expiring provisions. Over the past 
decade, we have seen how terrorists have proved themselves adaptable, 
how they have altered their tactics and methods to strike us at home. 
By extending this invaluable terror-fighting tool, we are staying ahead 
of them.
  Now is not the time to surrender the tools authorized by this act, or 
to make them more difficult to use. It was absolutely imperative that 
we renew these authorities under the PATRIOT Act. They have enabled 
others to keep us safe for nearly a decade. Our law enforcement 
professionals have been able to use tools just like them in traditional 
criminal cases for years. We should be relieved and reassured to know 
they won't expire this week.

[[Page 8160]]




                            A Looming Crisis

  Mr. President, last June, the Chairman of the Joint Chiefs of Staff, 
ADM Mike Mullen, made an observation that may have surprised some 
people. A day after Democrats here in the Senate refused to allocate 
tens of billions of dollars in unemployment assistance unless the costs 
could be added to an already unsustainable debt--he said that, in his 
view, the biggest threat to our national security is our debt.
  A few months earlier, the President himself identified the debt as a 
looming crisis. He pointed out that almost all of our long-term debt 
relates to the cost of Medicare and Medicaid. And he said, ``if we 
don't get control of that, we can't get control over our budget.'' He 
was right.
  But the co-chair of the President's debt commission may have put it 
best just 6 weeks ago. Speaking about the consequences of the fiscal 
path we're on, Erskine Bowles said simply:
  It's the most predictable crisis in history. The most predictable 
crisis in history--and that was a Democrat talking. And yet Democrats 
in the Senate don't even want to talk about it.
  Yesterday, here in the Senate, Democrats rejected every single 
proposal we have seen on our Nation's fiscal future. They took a pass. 
They have chosen to ignore this crisis just like they ignored the last 
one.
  Three years ago, as the financial crisis approached, the senior 
Senator from New York was holding press conferences trying to link the 
war in Iraq to what passed for an economic slowdown at the time. The 
majority leader was postponing votes that we all knew would fail so 
Democrats who were running for President could be here to vote on them. 
Now, in the face of a looming crisis we all admit is coming--they are 
doing the same thing.
  This crisis is staring us right in the face. The Democrats 
themselves--from the President on down--say they see it. Yet, once 
again, they are so focused on the next election they refuse to do 
anything to upset the status quo. They are more concerned about their 
own jobs than preventing a economic catastrophe that could affect 
everybody's job. They want to wait this out--while they hammer anybody 
who proposes a solution. They rejected their own President's budget. 
They rejected three Republican budgets. And they have not even bothered 
to offer a budget of their own. They're just marking time, treading 
water.
  So I think Democrats have lost the right to express concern about 
this crisis. Until they propose some solution of their own, they are 
part of the problem.
  The American people didn't send us here to hide in a corner until the 
next election. They sent us here to act on their behalf, and this is 
their message: If you see a crisis coming, you better do something 
about it.
  Mr. President, I suggest the absence of a quorum, and I ask unanimous 
consent that the time during the quorum call be charged equally to both 
sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                             Cloture Motion

  By unanimous consent, pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the motion to 
     concur in the House amendment to S. 990, with amendment No. 
     347.
         Harry Reid, Jack Reed, Carl Levin, Jeanne Shaheen, Mark 
           R. Warner, Richard Blumenthal, Kent Conrad, Kirsten E. 
           Gillibrand, Dianne Feinstein, Bill Nelson, John D. 
           Rockefeller IV, Joseph I. Lieberman, Barbara A. 
           Mikulski, Charles E. Schumer, Debbie Stabenow, Thomas 
           R. Carper, Mark L. Pryor.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call has been waived.
  The question is, Is it the sense of the Senate that the debate on the 
motion to concur in the House amendment to S. 990 with amendment No. 
347, offered by the Senator from Nevada, Mr. Reid, shall be brought to 
a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Connecticut (Mr. 
Blumenthal) and the Senator from New York (Mr. Schumer) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from New 
York (Mr. Schumer) would vote ``yea.''
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Kansas (Mr. Roberts).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The yeas and nays resulted--yeas 79, nays 18, as follows:

                      [Rollcall Vote No. 81 Leg.]

                                YEAS--79

     Akaka
     Alexander
     Ayotte
     Barrasso
     Bennet
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Burr
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Mikulski
     Moran
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Risch
     Rockefeller
     Rubio
     Sessions
     Shelby
     Snowe
     Stabenow
     Thune
     Toomey
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--18

     Baucus
     Begich
     Bingaman
     Brown (OH)
     Cantwell
     Cardin
     Heller
     Leahy
     Lee
     Merkley
     Murkowski
     Paul
     Sanders
     Shaheen
     Tester
     Udall (CO)
     Udall (NM)
     Wyden

                             NOT VOTING--3

     Blumenthal
     Roberts
     Schumer
  The ACTING PRESIDENT pro tempore. On this vote, the yeas are 79, the 
nays are 18. Three-fifths of the Senators duly chosen and sworn having 
voted in the affirmative, the motion is agreed to.
  Cloture having been invoked, the motion to refer the House message 
falls.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WYDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. WYDEN. Mr. President, I ask unanimous consent that I be permitted 
to engage in a colloquy between Senators Udall, Feinstein, and Merkley.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. WYDEN. Mr. President, I am going to talk for just a couple of 
minutes about the issue of secret law that Senator Udall and I, as we 
are both members of the Intelligence Committee, have been working on 
for quite some time. Then I am going to yield to our friend, the 
distinguished chairwoman of the Intelligence Committee, Senator 
Feinstein, for a colloquy.
  What this issue is all about is this: I believe there are two PATRIOT 
Acts in America. The first is the text of the law itself, and the 
second is the government's secret interpretation of what they believe 
the law means.
  As an example, several years ago Americans woke up to learn that the 
Bush administration had been secretly claiming for years that 
warrantless wiretapping was legal. This disclosure greatly undermined 
the public's trust

[[Page 8161]]

in the Department of Justice and our national intelligence agencies, 
and it took Congress and the executive branch years to sort out the 
situation.
  I believe the American people will also be extremely surprised when 
they learn how the PATRIOT Act is secretly being interpreted, and I 
believe one consequence will be an erosion of public confidence that 
makes it more difficult for our critically important national 
intelligence agencies to function effectively. As someone who served on 
the Intelligence Committee for 10 years, sitting right next to Senator 
Feinstein, I don't want to see that happen.
  Let me yield now to Senator Udall. He will also have brief remarks, 
and any colleagues who want to speak, and then Senator Feinstein will 
lead us in the discussion of how we will be moving forward. So I yield 
to Senator Udall who has been an invaluable member on the Intelligence 
Committee. He and I have worked on this since the day he joined our 
committee, and I am so appreciative of his involvement.
  Mr. UDALL of Colorado. Mr. President, I thank the Senator from Oregon 
for his kind words. I also wish to echo his remarks about the 
leadership of the chairwoman of the Intelligence Committee and her 
focus on keeping our country safe and our citizens protected.
  I also wish to make the point that, as my colleague from Oregon, I 
also oppose reauthorization of the expiring provisions in the PATRIOT 
Act without significant reforms. I believe it is critical that the 
administration make public its interpretation of the PATRIOT Act so 
Members of Congress and the public are not kept in the dark.
  Mrs. FEINSTEIN. Mr. President, I wish to thank both Senator Wyden and 
Senator Udall for their comments. We did have a meeting last night. We 
did discuss this thoroughly. The decision was that we would enter into 
this colloquy, so I will begin it, if I may.
  These Senators and I, along with the junior Senator from Oregon, Mr. 
Merkley, the Senator from Colorado, Mr. Mark Udall, and the Senator 
from Rhode Island, Mr. Whitehouse met last night to discuss this 
amendment, the legal interpretation of the Foreign Intelligence 
Surveillance Act provisions and how these provisions are implemented.
  I very much appreciate the strong views Senator Wyden and Senator 
Udall have in this area, and I believe they are raising a serious and 
important point as to how exactly these authorities are carried out. I 
believe we are also all in agreement that these are important 
counterterrorism authorities and have contributed to the security of 
our Nation.
  Mr. WYDEN. Mr. President, I have enormous respect for my special 
friend from California, the distinguished chairwoman of the 
Intelligence Committee. I have literally sat next to her for more than 
a decade. We agree on virtually all of these issues, but this is an 
area where we have had a difference of opinion.
  I have said I wouldn't support a long-term reauthorization of the 
PATRIOT Act without significant reforms, particularly in this area. I 
am especially troubled by the fact that the U.S. Government's official 
interpretation of the PATRIOT Act is secret, and I believe a 
significant gap has developed now between what the public thinks the 
law says and what the government secretly claims it says. That is why I 
and my colleagues from Oregon and Colorado and New Mexico have proposed 
an amendment that would make these legal interpretations public.
  Mr. UDALL of Colorado. Mr. President, let me say once again, as does 
my colleague from Oregon, I oppose reauthorization of the existing 
provisions of the PATRIOT Act that we have been debating on the Senate 
floor without significant reforms. I also have to say I believe it is 
critical that the administration make public its interpretation of the 
PATRIOT Act so Members of Congress and our public are not kept in the 
dark. That is the important work we have in front of us, and we have a 
real opportunity to accomplish those goals.
  Mrs. FEINSTEIN. Mr. President, if I may respond, I have agreed that 
these are important issues and that the Intelligence Committee, which 
is charged with carrying out oversight over the 16 various intelligence 
agencies of what is called the intelligence community, should be 
carried out forthrightly. I also believe the place to do it is in the 
Intelligence Committee itself. I have said to these distinguished 
Senators that it would be my intention to call together a hearing as 
soon as we come back from the Memorial Day break with the intelligence 
community agencies, the senior policymakers, and the Department of 
Justice to make sure the committee is comfortable with the FISA 
programs and to make changes if changes are needed. We will do that.
  So it would be my intention to have these hearings completed before 
the committee considers the fiscal year 2012 intelligence authorization 
bill so that any amendments to FISA can be considered at that time.
  The fact is, we do not usually have amendments to the intelligence 
authorization bill, but I believe the majority leader will do his best 
to secure a future commitment if such is needed for a vote on any 
amendment. I have not agreed to support any amendment because at this 
stage it is hypothetical, and we need to look very deeply into what 
these Senators have said and pointed out last night with specificity 
and get the response to it from the intelligence committee, have both 
sides hear it, and then make a decision that is based not only on civil 
liberties but also on the necessity to keep our country safe. I believe 
we can do that.
  I am very appreciative of their agreement to enter this colloquy.
  Mr. WYDEN. Mr. President, I thank the distinguished chairwoman of the 
Intelligence Committee for proposing this course of action for 
addressing the secret law issue. Obviously, colleagues would like more 
information on that, and they are going to be in a position to know 
that the Intelligence Committee is going to be examining it closely. I 
will just describe the next steps from there.
  Senator Udall and I have discussed this issue with Senator Reid. 
Senator Reid indicated to the chairwoman and myself and Senator Udall 
that we would have an opportunity through these hearings--and, of 
course, any amendments to the bill would be discussed on the 
intelligence authorization legislation, which is a matter that 
obviously has to be classified--but if we were not satisfied, if we 
were not satisfied through that process, we would have the ability to 
offer an amendment such as our original one on the Senate floor.
  Of course, the chairwoman would still retain full rights to oppose 
it, but we would make sure if this issue of secret law wasn't fixed and 
there wasn't an improved process to make more transparent and more open 
the interpretation of the law--not what are called sources and methods 
which are so important to protect our people--we would have an 
opportunity, if it wasn't corrected in the intelligence community, to 
come to the floor.
  Senator Reid has just indicated to all of us that he would focus on 
giving us a vote if we believed it was needed on another bill--not the 
intelligence authorization--before September 30. So there is a plan to 
actually get this fixed, and that is what is key.
  At this time I yield to the Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, as we begin to end this 
important colloquy, I wish to acknowledge the leadership of Senator 
Wyden on this important matter. I also wish to acknowledge the 
involvement of the Senator from New Mexico, who is presiding at this 
moment in time, and the Senator from Oregon, Mr. Merkley, and the 
Senator from Rhode Island, Mr. Whitehouse, who has been very involved 
in bringing this case to the attention of all of us. I wish to also 
thank my good friend from California, the chairwoman of the committee. 
She has shown a great willingness to work with everybody and to listen.
  I have to say I expect that once the committee examines this issue 
more closely, I think many more of our colleagues will want to join us 
in reforming the law in this area. I think this is

[[Page 8162]]

important. I do think we can find the right balance between protecting 
civil liberties and protecting the health and welfare of the American 
citizens.
  Mr. WYDEN. Mr. President, let me just make one last comment. I also 
wish to express my appreciation to Senator Merkley, who has been an 
extraordinarily outspoken advocate of our civil liberties and our 
privacy in striking a good balance between fighting terror and 
protecting the rights of our people, and I have so appreciated his 
leadership on this issue.
  Let me sum up. First, I am very grateful to our chairwoman and 
pleased with this agreement. The chairwoman has indicated she believes 
those of us who want to reform secret law have raised a serious and 
important issue. Those are her words. We are grateful for that because 
we obviously believe very strongly about it. The chairwoman has said we 
will hold hearings promptly to examine the secret law issue, give 
serious consideration to looking at reforms in the fiscal year 2012 
intelligence authorization bill, and then, per our conversations with 
the majority leader, if Senator Udall and I believed it had not been 
corrected on the intelligence authorization bill, we would have the 
right to offer--and certainly the chairwoman could oppose it--an 
amendment on the floor of the Senate on an unrelated bill. Senator 
Reid, to his great credit, in an effort to try to resolve this and move 
it along, said to the three of us that he would be working to do that.
  Again, our thanks to the chairwoman and all of my colleagues on the 
floor, including Senator Merkley, who is not a member of the committee 
and knows an incredible amount about it and certainly showed that last 
night in our discussions and was very helpful. I wish to yield to him.
  So with the cooperation the chairwoman has shown all of us who are 
trying to change this and the efforts of Senator Reid to make sure if 
we didn't work it out we could come back to the floor again, I withdraw 
the Wyden-Udall amendment for the time being. It ought to be clear to 
everybody in the Senate that we are going to continue to prosecute the 
cause of making more open and accountable the way the government 
interprets this law in making sure that the American people have the 
confidence that the way it is being interpreted is in line with the 
text of the legislation.
  I withdraw at this time the Wyden-Udall amendment, and I yield the 
floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I am deeply appreciative of the dialogue 
that has just taken place. It was William Pitt in England who commented 
that the wind and the rain can enter my house, but the King cannot.
  It captured the spirit and understanding of the balance between 
personal privacy, personal freedoms, and issues of the Crown regarding 
maintenance of security. It was this foundation that came in for our 
fourth amendment of our Constitution that lays out clear standards for 
the protection of privacy and freedoms.
  So as we have wrestled with the standard set out in the PATRIOT Act, 
a standard that says the government may have access to records that are 
relevant to an investigation--now, that term is, on its face, quite 
broad and expansive, quite a low standard, if you will. But what 
happens when it is interpreted out of the sight of this Chamber, out of 
the sight of the American people? That is the issue my colleague has 
raised, and it is a very important issue.
  I applaud the chair of the Intelligence Committee for laying out a 
process whereby we all can wrestle with this issue in an appropriate 
venue and have a path for amendments in the committee or possibly here 
on the floor of the Senate because I do think it is our constitutional 
responsibility to make sure the fourth amendment of the Constitution is 
protected, the privacy and freedoms of citizens are protected.
  I say thank you to the Senator from Colorado; my senior colleague, 
who has led this effort from Oregon; my colleague from New Mexico, who 
is the Acting President pro tempore; and the chairwoman from 
California.
  Mrs. FEINSTEIN. Mr. President, I thank my colleagues very much. I 
believe this concludes our colloquy.
  I thank the Acting President pro tempore, and we yield the floor.
  Mr. CARDIN. Mr. President, I rise to explain why I voted against the 
motion to invoke cloture on S. 990, the legislative vehicle for S. 
1038, the reauthorization of the USA PATRIOT ACT. I opposed cloture 
because I believe the Senate has an obligation to consider substantive 
amendments to improve the PATRIOT Act.
  We are all aware that at the end of this week three provisions of the 
PATRIOT Act will expire. The three provisions are business records, 
roving wiretaps, and ``lone wolf'' terrorists.
  I understand there is a delicate balance we must strike here between 
preventing and disrupting future terrorist attacks in the United States 
and protecting our cherished constitutional rights and civil liberties. 
We must make sure that our law enforcement and intelligence 
professionals have the tools they need at their disposal to stop future 
terrorist attacks. At the same time, we must insure that our government 
uses our scarce resources wisely, and that it safeguards the very 
rights and liberties that are guaranteed by our Constitution to all 
Americans.
  The current legislation before the Senate simply extends the existing 
PATRIOT Act authorities for 4 more years, until 2015, without any 
changes to the authorities given to the government or oversight of 
their use by Congress and the courts.
  I think we can improve this legislation, as Congress seeks to strike 
the proper balance that I have mentioned. I have studied this issue 
closely as the former chairman of the Terrorism and Homeland Security 
Subcommittee of the Senate Judiciary Committee. The Judiciary Committee 
has held numerous hearings on the implementation of the new PATRIOT Act 
authorities. We have received testimony from government witnesses, 
including the inspector general of the Justice Department, on the 
improper use of some of the PATRIOT Act authorities, and 
recommendations to improve the PATRIOT Act.
  Congress put these sunsets into this law for a reason. I have 
supported these sunsets for the PATRIOT Act and the FISA Amendments 
Act. A sunset means that a law will not just continue on autopilot 
without any changes. Congress uses sunsets when giving extraordinary 
authorities to the executive branch so that we have a check and balance 
on the use of this power by the government. The separation of powers 
also gives the courts a large role in reviewing and approving certain 
government investigatory and surveillance activity under the PATRIOT 
Act.
  A sunset means that the executive branch has to come back to Congress 
and ask for an extension of authority. Congress then has a 
responsibility to look at how the law has been carried out, and make 
any needed improvements in the law, before again extending the 
authorities in the law.
  Without any action by Congress, a sunset leads to the expiration of 
the law in question, as the authorities in the law will lapse. As a 
result, when sunsets are involved I have found the executive branch is 
more forthcoming with Congress in terms of sharing information and 
providing classified briefings to Congress on how they use the 
authorities in question.
  That is why I voted to oppose cloture. The Senate should have the 
ability to consider substantive amendments to the PATRIOT Act, and not 
simply extend the authorities as is, with no changes, for another 4 
years.
  And the Senate already has a package of reforms ready for 
consideration, after careful deliberation in committee. Earlier this 
week, I was pleased to cosponsor an amendment offered by the 
distinguished chairman of the Judiciary Committee, the Senator from 
Vermont, Mr. Leahy. In the 111th Congress, I was also pleased to 
cosponsor similar legislation offered by Chairman Leahy. The Senate 
Judiciary Committee favorably reported this legislation to the full 
Senate in March 2011, as S. 193, the USA PATRIOT Act Sunset Extension 
Act of 2011.

[[Page 8163]]

  Broadly speaking, the Leahy amendment would increase judicial and 
congressional review of surveillance authorities that sweep in U.S. 
citizens, and would expand oversight and public reporting to ensure 
that Americans can monitor the use of these authorities.
  The Leahy amendment requires the government to meet a higher burden 
of proof when seeking business records from Americans, under the so-
called section 215 orders. The amendment would require the government 
to show that the documents sought are relevant to an authorized 
investigation and are linked to a foreign group or foreign power. 
Current law merely requires the government to show the records are 
relevant to an authorized investigation. Under the amendment, the 
government must meet an even higher burden of proof to obtain 
bookseller or library records.
  The Leahy amendment also makes it easier for Americans to challenge 
the government when business records are sought. The amendment strikes 
the 1-year waiting period before a recipient can challenge a 
nondisclosure order for section 215 orders, and also strikes the 
conclusive presumption in favor of the government on nondisclosure of 
such an order.
  For the first time, this Leahy amendment would also write into law a 
sunset provision and greater oversight of the use of national security 
letters, NSLs, by the government. This would therefore add a fourth 
sunset to the PATRIOT Act. This provision would shift the burden to the 
government to seek a court order for an NSL nondisclosure order, and 
allows the recipient of such an order to challenge it at any time.
  Under the Leahy amendment, Congress will require a new series of 
audits to ensure protection of privacy and vigorous oversight of the 
new authorities given to the government. The Justice Department 
inspector general would conduct audits of the use of three surveillance 
tools: orders for tangible things; pen registers and trap and trace 
devices; and NSLs. The scope of such audits includes a comprehensive 
analysis of the effectiveness and use of the investigative authorities 
provided to the government, including any improper or illegal use of 
such authorities.
  Finally, the Leahy amendment requires enhanced court review and 
oversight of minimization procedures, which are designed to protect the 
privacy of innocent and law-abiding Americans. The amendment requires 
increased public reporting on the use of NSL's and FISA authorities by 
the government, including an annual unclassified report on how FISA 
authorities are used and their impact on the privacy of United States 
persons.
  We now approach the 10th anniversary of the 9/11 terrorist attacks on 
this Nation. The United States recently conducted a military and 
intelligence operation which led to the killing of the al-Qaida 
mastermind of the attacks, Osama bin Laden. America still faces threats 
to its security every day, and I thank our brave men and women in the 
United States military and our intelligence community for working 
tirelessly to keep America safe.
  In my view, the Leahy amendment strikes the proper balance of giving 
our law enforcement and intelligence professionals the tools they need 
to prevent and disrupt future terrorist attacks, while simultaneously 
protect our civil liberties. The amendment includes important new 
protection for law-abiding Americans, and requires more vigorous 
oversight by Congress and the courts as the government uses these new 
powers.
  Although I hope that the Leahy amendment will still be made in order, 
it is important that we do not allow the PATRIOT Act authorities to 
expire. It is important for our law enforcement and intelligence 
agencies to have these tools at their disposal as they seek to prevent 
and disrupt future terrorist attacks in the United States.
  Mr. RUBIO. Mr. President, the PATRIOT Act has been an indispensable, 
life-saving tool for the law enforcement and intelligence communities 
that work tirelessly to protect our Nation from terrorist attacks. In 
these dangerous times, the PATRIOT Act should give a little more peace 
of mind to millions of Americans and give those seeking to do us harm 
good reason to rethink their diabolical plans.
  Earlier this year, I voted to extend the PATRIOT Act. Today, I 
reaffirm my support for reauthorizing key PATRIOT Act provisions for an 
additional 4 years.
  Our Nation's security has and will always be a top priority for me. 
As a member of the Senate's Select Committee on Intelligence, I am 
aware of the constant threat our Nation faces from terrorists and 
individuals who hate us and want to impose their radical view of the 
world at all costs. Any changes or limits on the PATRIOT Act would only 
give these extremists an opening to strike us.
  While some may disagree on this issue, I simply cannot allow those 
tasked with protecting our people from being deprived of these vital, 
lawful means to help prevent an attack.
  Mr. LEAHY. Mr. President, I am disappointed that we have not been 
able to work out an agreement that will allow consideration of my 
amendment to the pending USA PATRIOT Act sunset extension legislation. 
I think that a bipartisan majority of the Senate would have supported 
our improvements. We have missed an opportunity to move forward to help 
keep our Nation secure while also strengthening our commitment to our 
core constitutional principles of individual liberty and privacy.
  The amendment I sought to offer represented a commonsense and 
reasonable package of reforms that would have improved the law, 
expanded civil liberties and privacy protections, and better ensured 
proper oversight and accountability. This amendment earned the 
cosponsorship of Senator Paul and a dozen others since we began debate 
on Monday, including Senators Cardin, Bingaman, Coons, Shaheen, Wyden, 
Franken, Gillibrand, Harkin, Durbin, Merkley, Boxer, and Akaka. I thank 
these Senators for recognizing that the Senate should do better than 
merely extend the expiring provisions of the USA PATRIOT Act for 
another 4 to 6 years without a single improvement or reform.
  Over the past 2 years, the Senate Judiciary Committee has diligently 
considered how to make improvements to current law. The language in our 
amendment was the product of more than a year and a half of extensive 
negotiations with Republicans and Democrats, the intelligence 
community, and the Department of Justice. The committee reported a 
bipartisan bill last Congress and another similar bill in the current 
Congress. The bipartisan amendment that we sought to bring to the 
Senate preserved the ability of the government to use the PATRIOT Act 
surveillance tools, while promoting transparency, accountability, and 
oversight. It was not everything that everyone wanted but it was a 
commonsense package of improvements that should have been adopted.
  The Attorney General and others have repeatedly assured us that the 
measures to enhance oversight and accountability, such as audits and 
public reporting, would not sacrifice ``the operational effectiveness 
and flexibility needed to protect our citizens from terrorism'' or 
undermine ``the collection of vital foreign intelligence and 
counterintelligence information.'' In fact, the Attorney General has 
consistently said that the Senate Judiciary Committee-passed bill 
struck ``a good balance'' by extending PATRIOT Act authorities while 
adding accountability and civil liberties protections.
  One of the improvements we need to make is to repair a constitutional 
infirmity in the current law. The so- called Doe v. Mukasey fix is 
needed to address a first amendment problem with the national security 
letter statutes, and should not have been controversial in any way. 
Similarly, no one can seriously contend that periodic audits by an 
inspector general of past operations presented any operational concerns 
to law enforcement or intelligence gathering. These are vital oversight 
tools that everyone should have supported.

[[Page 8164]]

  As it stands now, the extension of the PATRIOT Act provisions does 
not include a single improvement or reform, and includes not even a 
word that recognizes the importance of protecting the civil liberties 
and constitutional privacy rights of Americans. We could have provided 
the necessary tools to law enforcement and the intelligence community, 
but could have done so while faithfully performing our duty to protect 
the constitutional principles and civil liberties upon which all 
American rely.
  Today's Washington Post included an editorial that urged the Senate 
to extend the PATRIOT Act authorities but also to include ``additional 
protections meant to ensure that these robust tools are used 
appropriately.'' The editorial observed that the bill ``would be that 
much stronger'' if it included the oversight and auditing requirements 
included in our amendment. That is why Senator Paul and a dozen other 
Senators had sponsored the amendment. That is why Senator Lee voted for 
them this year in the Judiciary Committee. And I would note that 
Senator Kyl and Senator Cornyn supported them in the last Congress.
  I ask unanimous consent to have printed in the Record a copy of 
today's editorial from the Washington Post entitled, ``A Chance to Put 
Protections in the PATRIOT Act.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, May 25, 2011]

             A Chance to Put Protections in the Patriot Act

                        (By the Editorial Board)

       Congress appears poised to renew important counterterrorism 
     provisions before they are to expire at the end of the week. 
     That much is welcome. But it is disappointing that lawmakers 
     may extend the Patriot Act measures without additional 
     protections meant to ensure that these robust tools are used 
     appropriately.
       The Patriot Act's lone-wolf provision allows law 
     enforcement agents to seek court approval to surveil a non-
     U.S. citizen believed to be involved in terrorism but who may 
     not have been identified as a member of a foreign group. A 
     second measure allows the government to use roving wiretaps 
     to keep tabs on a suspected foreign agent even if he 
     repeatedly switches cellphone numbers or communication 
     devices, relieving officers of the obligation of going back 
     for court approval every time the suspect changes his means 
     of communication. A third permits the government to obtain a 
     court order to seize ``any tangible item'' deemed relevant to 
     a national security investigation. All three are scheduled to 
     sunset by midnight Thursday.
       House and Senate leaders have struck a preliminary 
     agreement for an extension to June 2015 and may vote on the 
     matter as early as Thursday morning. This agreement was not 
     easy to come by. Several Republican senators originally 
     wanted permanent extensions--a proposition rebuffed by most 
     Democrats and civil liberties groups. In the House, 
     conservative Tea Party members, who worried about handing the 
     federal government too much power, earlier this year bucked a 
     move that would have kept the provisions alive until 
     December. Congressional leaders were forced to piece together 
     short-term approvals to keep the tools from lapsing.
       The compromise four-year extension is important because it 
     gives law enforcement agencies certainty about the tools' 
     availability. But the bill would be that much stronger if 
     oversight and auditing requirements originally included in 
     the version from Sen. Patrick J. Leahy (D-Vt.) were permitted 
     to remain. Mr. Leahy's proposal, which won bipartisan 
     approval in the Senate Judiciary Committee, required the 
     attorney general and the Justice Department inspector general 
     to provide periodic reports to congressional overseers to 
     ensure that the tools are being used responsibly. Mr. Leahy 
     has crafted an amendment that includes these protections, but 
     it is unlikely that the Senate leadership will allow its 
     consideration.
       At this late hour, it is most important to ensure that the 
     provisions do not lapse, which could happen as a result of a 
     dispute between Senate Majority Leader Harry M. Reid (D-Nev.) 
     and Sen. Rand Paul (R-Ky.) over procedural issues. If time 
     runs out for consideration of the Leahy amendment, Mr. Leahy 
     should offer a stand-alone bill later to make the reporting 
     requirements the law.

  The ACTING PRESIDENT pro tempore. The Senator from Oregon is 
recognized.

                          ____________________