Congressional Record: October 1, 2003 (Senate)
Page S12278-S12299
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself, Mr. Craig, Mr. Durbin, Mr. Sununu, and
Mr. Reid):
S. 1695. A bill to provide greater oversight over the USA PATRIOT
Act; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today I am introducing with Senators Craig,
Sununu, Durbin, and Reid, my distinguished colleagues from Idaho, New
Hampshire, Illinois, and Nevada, the Patriot Oversight Restoration Act
of 2003, a short bill whose singular but important purpose is to
provide Congress the opportunity to take a hard look at the USA PATRIOT
Act, which we passed in the anxious weeks following the devastating
attacks of September 11, 2001. This bipartisan bill is moderate in
scope; it would simply expand the sunset provision already enacted in
the PATRIOT Act, to cover a number of additional provisions. The
ensuing debate, however, should be considerable. My hope is that,
before the sunset expires in December 2005, Congress will methodically
revisit PATRIOT, with an eye toward achieving a suitable balance
between the need to address the threat of terrorism and the need to
protect our constitutional freedoms--and with the lessons of the past
few years to guide us.
We recently marked the second anniversary of the September 11
attacks. As we reflect on that terrible day, and honor those who were
lost, I strongly believe we should take stock of where we stand in our
fight against terrorism. In the aftermath of the attacks, Congress and
the administration did forge a constructive partnership to write the
USA PATRIOT Act, which was meant to help our law enforcement and
intelligence communities prevent future attacks from occurring. The
PATRIOT Act represented our best efforts, under difficult
circumstances, to balance the rights and liberties of the American
people with the very urgent need to confront a threat to our Nation.
Even in balancing this tension, we granted the executive branch an
unprecedented, vast new array of powers. We did so because we believed
the administration's claim that it needed these powers to protect us,
and because we trusted the administration's promise that it would use
these powers appropriately. I noted at the time that PATRIOT was not
the bill that I, or any of the sponsors, would have written if
compromise were unnecessary. But I believed in the bill's purpose, and
I gave it my vote and support. I worked hard to add checks and balances
to many of its provisions, and did so.
Unfortunately, like many Members who supported the act--and like many
Americans nationwide--I have come to feel disappointed. Since we passed
the PATRIOT Act in October 2001, it has grown increasingly apparent
that the trust and cooperation Congress provided to the executive
branch has proved to be a one-way street. In the quarter-century that I
have served in the Senate, no administration has been more secretive,
more resistant to congressional oversight, and more disposed to acting
unilaterally, without the approval of the American people or their
democratically elected representatives. Despite the administration's
unprecedented public relations campaign to promote the PATRIOT Act--
including a 16-State, 18-city tour by the Attorney General himself--the
administration has yet to show that it is using its PATRIOT powers
wisely. Instead, it has been secretly drafting a sequel to PATRIOT that
would grant it even more far-reaching powers.
I would never oppose an open discussion of any legislative tool that
would help in the fight against terrorism. But for such a debate to be
fruitful, we need to know more about the tools that are already
available, including those created by the PATRIOT Act. Which are
working, and how well? Which are not working, and why? Which, if any,
struck the wrong balance, threatening the civil liberties of our
citizens while doing little or nothing to keep our Nation secure?
Immediately after the PATRIOT Act passed, the administration draped a
cloak of secrecy around its use. When lawmakers and citizens have
attempted to start a dialogue on PATRIOT-related issues, the response
has been to ignore, insult or derisively dismiss them.
Attorney General Ashcroft has repeatedly declined to appear before
the Judiciary Committee to answer questions, and his Department is
painfully slow to respond to written requests for information. To quote
my friend Senator Grassley, "getting information from the Justice
Department under Ashcroft is like pulling teeth." By ignoring
oversight requests until answers are moot or outdated, and responding
in only vague and conclusory fashion, if at all, the Justice Department
frustrates our constitutional system of checks and balances, and sows
the sort of public distrust that now accompanies the PATRIOT Act.
Just recently, in July, the Department dumped on committee members
literally hundreds of pages of answers to questions that had been
submitted to Attorney General Ashcroft and other senior Department
officials following their testimony before the committee more than a
year earlier. To give just one example of what a travesty it is when
oversight questions remain unanswered for a year or more, the
Department's responses dated July 17, 2003, devoted fully 15 pages to
answering questions about Operation TIPS--an ill-conceived program that
Congress had already terminated more than 8 months earlier.
Is the Department incapable of responding to congressional inquiries
in a timely fashion? Is it deliberately stonewalling? Or does it simply
believe that oversight is a game that it need not play?
Even more troubling, high-level administration officials have rashly
suggested that anyone who dares to voice their concerns as unpatriotic,
anti-American and pro-terrorist. In one of his rare appearances before
the Senate Judiciary Committee, Attorney General Ashcroft charged that
"fear mongers"--those who were raising concern about the loss of
civil liberties--were only aiding the terrorists. More recently, a
Justice Department official dismissed the many local government
resolutions condemning the PATRIOT Act by saying "half are either in
cities in Vermont, very small population, or in college towns in
California. It's in a lot of the usual enclaves where you might see
nuclear free zones, or they
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probably passed resolutions against the war in Iraq."
It is unfortunate that the Justice Department felt it appropriate to
ridicule these grass-roots efforts to participate in an important
national dialogue. The opportunity to engage in public discourse is one
of the hallmark benefits of being an American, and I am proud that
Vermont towns are among those dedicated to thinking about and acting on
these important issues. But more importantly, the concerns expressed in
my home State are being echoed by Americans nationwide. To date, anti-
PATRIOT resolutions have been passed by 178 communities in 32 States
including Idaho, New Hampshire, and Illinois. These communities
represent millions upon millions of Americans, not just a few free-
spirited Vermonters, as the Justice Department has insinuated.
Concerns about the administration's antiterror tactics are also
shared by Members on both sides of aisle, many of whom supported the
PATRIOT Act as well as the war in Iraq, but who now know that the
administration has been less than forthright about what it has been
doing in the name of the American people. In July, the House voted to
nullify section 213 of the PATRIOT Act, which allows law enforcement to
ask a court to delay notice of a search warrant where it could have
certain adverse results. And several bills have been introduced in both
Houses to roll back another PATRIOT Act provision, section 215, which
gives federal agents new power to obtain records from libraries and
bookstores. Remarkably, in response, the Justice Department then
declassified information summarily reflecting that it has never used
the Section 215 powers--despite expressing urgent "need" during pre-
PATRIOT Act debate. And almost simultaneous to this announcement, the
President urged support for an alternative record gathering power when
Section 215 is still on the books. One has to question the
inconsistencies in these two positions and whether Congress should
blindly confer data gathering powers on an administration that does not
provide a hint of factual support for such requests. There is overall a
growing sense in the nation that Congress moved too fast in enacting
the PATRIOT Act, and that the Justice Department moved too slowly in
explaining its use of this sweeping legislation.
When we passed the PATRIOT Act in October 2001, I noted that Congress
needed to exercise careful oversight of how the Justice Department, the
FBI and other executive branch agencies used the newly expanded powers
that the act provided. The need for oversight and accountability is the
reason that former House Majority Leader Dick Armey and I insisted on a
sunset provision for several key provisions in PATRIOT--provisions that
blurred the lines between criminal investigation and intelligence
gathering. We succeeded, but only in part; several PATRIOT provisions
that should have been subject to the sunset--including a few that were
sunset or even cut in the version of the bill reported by the House
Judiciary Committee--were omitted from the sunset. As enacted, the
sunset applies only to certain enhanced surveillance authorities in
title II of the act.
The PATRIOT Oversight Restoration Act would extend PATRIOT's sunset
provision to other enhanced surveillance provisions in title II of the
act. These include subsections (a) and (c) of section 203, which
authorize the disclosure of grand jury information to foreign
enforcement, intelligence and immigration officials; sections 210 and
211, which broaden the types of information that law enforcement may
obtain, upon request, from electronic communication service providers
and cable service operators; section 213, which authorizes so-called
"sneak and peak"--delayed notification--search warrants; sections 216
and 222, which significantly expand when, where, and how law
enforcement can obtain a pen register or trap and trace order; and
section 219, which authorizes judges to sign search warrants for
properties located outside their districts.
In addition to these title II provisions, the PATRIOT Oversight
Restoration Act would also extend the sunset to a handful of provisions
in titles IV, V, VIII and X of the PATRIOT Act. These provisions
include sections 411 and 1006, which expand the Government's authority
to declare certain persons inadmissible to the United States; section
412, which grants the Attorney General authority to "certify" that an
alien is engaged in activity that endangers the national security, and
to take such an alien into custody; section 505, which gives law
enforcement greater authority to access telephone, bank, and credit
records through the issuance of so-called "National Security
Letters," even if no criminal investigation is pending and without
court review; sections 507 and 508, which remove certain privacy
protections for educational records and surveys--called "obstacles"
to investigating terrorism in the PATRIOT Act; section 802, which
defines "domestic terrorism" in a way that could be read to include
political protesters engaged in civil disobedience; section 806, which
uses the aforementioned definition of "domestic terrorism" to expand
the government's civil forfeiture authority; and section 1003, which
references another section of PATRIOT that is already covered by the
sunset.
With the PATRIOT Act, Congress provided government investigators with
a virtual smorgasbord of new powers from which to choose. Is the
Government gorging itself on the secretive powers allowed for "foreign
intelligence" gathering, with their less onerous procedural
requirements, rather than relying on bedrock criminal investigatory
techniques that are subject to more rigorous review by the Federal
courts? Have we provided too many choices and too much power to a
limited few? These are questions that require answers before the more
far-reaching provisions of PATRIOT are etched into stone.
The events of September 11, 2001, resound in our hearts and in our
memories. We owe it to the American people to be circumspect in the
powers and authorities we grant, even in the name of national security.
Our country was attacked on September 11 because of the democratic
principles that this country stands for and that we love. It would be a
cruel twist of irony to abandon those principles in the guise of a law
named "PATRIOT" that might prove to be anything but a defender or
protector of those cherished rights and freedoms.
The PATRIOT Oversight Restoration Act offers a cautious and sensible
solution to evolving fears about the PATRIOT Act. It will allow
Congress to re-examine some of the important legal issues that abruptly
confronted us in the weeks following September 11, and to re-assess our
efforts with the benefit of hindsight and the luxury of time.
Mr. President, I ask unanimous consent that the text of the bill and
an analysis be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The PATRIOT Oversight Restoration Act of 2003
Extends the current sunset provision in section 224 of the
USA PATRIOT Act (Pub. L. 107-56) to the following additional
sections of that law.:
203(a) and (c), which authorize the disclosure of grand
jury information to foreign enforcement, intelligence and
immigration officials;
210 and 211, which broaden the types of information that
law enforcement may obtain, upon request, from electronic
communication service providers and cable service operators;
213, which authorizes so-called "sneak and peak" (delayed
notification) search warrants;
216 and 222, which expand when, where, and how law
enforcement can obtain a pen register or trap and trace
order;
219, which authorizes judges to sign search warrants for
properties located outside their districts;
358, which establishes greater reporting requirements by
financial institutions for bank records and removes privacy
protections under the law for the same records;
411 and 1006, which expand the government's authority to
declare certain persons inadmissible to the United States;
412, which grants the Attorney General authority to
"certify" that an alien is engaged in activity that
endangers the national security, and to take such an alien
into custody;
505, which gives law enforcement greater authority to
access telephone, bank, and credit records through the
issuance of so-called "National Security Letters";
507 and 508, which remove certain privacy protections for
educational records and surveys;
802, which defines "domestic terrorism" in a way that
could be read to include political protesters engaged in
civil disobedience.
806, which uses the aforementioned definition of "domestic
terrorism" to expand the government's civil forfeiture
authority; and
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1003, which references another section of PATRIOT (section
217, "Interception of computer trespasser communications")
that is already covered by the sunset.
Clarifies that after these provisions sunset on December
31, 2005, the law shall revert to what it was before the USA
PATRIOT Act was enacted.
S. 1695
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "PATRIOT Oversight
Restoration Act of 2003".
SEC. 2. EXTENSION AND CLARIFICATION OF PATRIOT SUNSET
PROVISION.
The USA PATRIOT Act (Public Law 107-56) is amended by--
(1) striking section 224;
(2) adding at the end of title X the following:
"SEC. 1017. SUNSET.
"(a) In General.--Except as provided in subsection (b),
the following sections of this Act and any amendments made by
such sections shall cease to have effect on December 31,
2005, and any provision of law amended or modified by such
sections shall take effect January 1, 2006, as in effect on
the day before the effective date of this Act:
"(1) In title II, all sections other than sections 201,
202, 204, 205, 208, and 221, and the first sentence of
section 222.
"(2) In title III, section 358.
"(3) In title IV, sections 411 and 412.
"(4) In title V, sections 505, 507, and 508.
"(5) In title VIII, sections 802 and 806.
"(6) In this title, sections 1003 and 1006.
"(b) Exception.--With respect to any particular foreign
intelligence investigation that began before the date on
which the provisions referred to in subsection (a) cease to
have effect, or with respect to any particular offense or
potential offense that began or occurred before the date on
which such provisions cease to have effect, such provisions
shall continue in effect."; and
(3) in the table of contents for such Act, by--
(A) striking the item for section 224 and inserting the
following:
"Sec. 224. [Stricken see section 1017].";
and
(B) inserting after the item for section 1016 the
following:
"Sec. 1017. Sunset.".
Mr. CRAIG. Mr. President, I am pleased to join the distinguished
Senator from Vermont, Senator Leahy, and our other colleagues in
introducing the PATRIOT Oversight Restoration Act of 2003.
I am one of those who voted in favor of the USA PATRIOT Act to
respond to the unprecedented, tragic attacks of September 11, 2001.
However, even at the time of that vote, I raised my reservations about
the new authorities being granted under the act, and pledged that there
would be aggressive oversight by the legislative branch to make sure
PATRIOTS implementation did not compromise civil liberties.
Since that time, this lengthy and complex law has been subjected to
considerable dissection and discussion both inside and outside of
Congress, and concerns have been raised about many of its provisions.
The low boil of discontent around the Nation exploded in the other
Chamber some weeks ago with a strong vote to prohibit the use of
appropriated funds for requesting delayed notice of a search warrant
under the act.
To its credit, the Bush administration has lately worked to address
criticism of the law and demonstrate there have been no abuses by
Federal law enforcement. I greatly appreciate those efforts and believe
it is vitally important to continue that dialog with the Congress and
the American people.
At the same time, in light of the serious concerns that have been
raised, I think it is appropriate for us to add some triggers to the
law that will force Congress to review and affirmatively renew these
authorities. That is what the PATRIOT Oversight Restoration Act would
accomplish, by sunsetting additional provisions that are not currently
set to expire. I do not think this will create a burden for law
enforcement; on the contrary, if these authorities are indeed critical
to the protection of our Nation, it should not be difficult to convince
Congress to renew them. Furthermore, the knowledge that such a case
must be made at a time certain in the future will serve as an
additional immediate check against potential abuses.
The security of our Nation is the first responsibility of the Federal
Government. Our bill will ensure that responsibility is carried out
thoughtfully and in our country's great tradition of balance and
restraint in the enforcement of our laws. I urge all our colleagues to
join us in supporting the PATRIOT Oversight Restoration Act.
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