Congressional Record: October 2, 2003 (Senate)
Page S12377-S12387
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. FEINGOLD:
S. 1701. A bill to delay notice of search warrants; to the Committee
on the Judiciary.
Mr. FEINGOLD. Mr. President, today I will introduce in the Senate the
Reasonable Notice and Search Act. This bill addresses the provision of
the USA PATRIOT Act that has caused perhaps the most concern among
Members of Congress. Section 213 of the PATRIOT Act, sometimes referred
to as the "delayed notice search provision" or the "sneak and peek
provision," authorizes the Government in limited circumstances to
conduct a search without immediately serving a search warrant on the
owner or occupant of the premises that have been searched.
Prior to the PATRIOT Act, secret searches for physical evidence were
performed in some jurisdictions under the authority of Court of Appeals
decisions, but the Supreme Court never definitively ruled whether they
were constitutional. Section 213 of the Patriot Act authorized delayed
notice warrants in any case in which an "adverse result" would occur
if the warrant were served before the search was executed. Adverse
result was defined as including: 1. Endangering the life or physical
safety of an individual; 2. flight from prosecution; 3. destruction of
or tampering with evidence; 4. intimidation of potential witnesses; or
5. otherwise seriously jeopardizing an investigation or unduly delaying
a trial. These circumstances went beyond what court decisions had
authorized before the PATRIOT Act. In addition, while some courts had
required the service of the warrant within a specified period of time,
the PATRIOT Act simply required that the warrant specify that it would
be served within a "reasonable" period of time after the search.
It is interesting to note that this provision of the PATRIOT Act was
not limited to terrorism cases. Nor was it made subject to the sunset
provision that will cause most of the new surveillance provisions of
the act to expire at the end of 2005 unless Congress reenacts them. So
Section 213 was pretty clearly a provision that the Department of
Justice wanted regardless of the terrorism threat after 9/11.
Perhaps that is why this provision has caused such controversy since
it was passed. Just over 2 months ago, by a wide bipartisan margin, the
House passed an amendment to the Commerce-Justice-State appropriations
bill offered by Representative Otter from
[[Page S12378]]
Idaho, a Republican, to stop funding for delayed notice searches
authorized under section 213. The size of the vote took the Department
by surprise, and it immediately set out to defend the provision
aggressively. Clearly, this is a power that DOJ does not want to lose.
I raised concern about the sneak and peek provision when it was
included in the Patriot Act and even considered offering an amendment
at that time to strip it out. I did not believe there had been adequate
study and analysis of the justifications for these searches and the
potential safeguards that might be included. I did not argue then,
however, and I am not arguing now that there should be no delayed
notice searches at all and that the provision should be repealed. I do
believe, however, that it should be modified to protect against abuse.
My bill will do four things to accomplish this.
First, my bill would narrow the circumstances in which a delayed
notice warrant can be granted to the following: potential loss of life,
flight from prosecution, or destruction or tampering with evidence. The
"catch-all provision" in section 213, allowing a secret search when
serving the warrant would "seriously jeopardize an investigation or
unduly delay a trial" is too easily susceptible to abuse.
Second, I believe that any delayed notice warrant should provide for
a specific and limited time period within which notice must be given--7
days. This is consistent with some of the pre-PATRIOT Act court
decisions and will help to bring this provision in closer accord with
the fourth amendment to the Constitution. Under my bill, prosecutors
will be permitted to seek 7-day extensions if circumstances continue to
warrant that the subject not be made aware of the search. But the
default should be a week, unless a court is convinced that more time
should be permitted.
Third, Section 213 should be brought into the group of PATRIOT Act
provisions that will sunset at the end of 2005. This will allow
Congress to reexamine this provision along with the other provisions of
the act, which was passed within 6 weeks of the 9/11 attacks, to
determine if the balance between civil liberties and law enforcement
has been correctly struck.
Finally, the bill requires a public report on the number of times
that section 213 is used and the number of times that extensions are
sought beyond the 7-day notice period. This information will help the
public and Congress evaluate the need for this authority and determine
whether it should be retained or modified after the sunset.
These are reasonable and moderate changes to the law. They do not gut
the provision. They do not make it worthless. They do recognize the
growing and legitimate concern from across the political spectrum that
this provision was passed in haste and presents the potential for
abuse. They also send a message that fourth amendment rights have
meaning and potential violations of those rights should be minimized if
at all possible. I urge my colleagues to support this bill and I ask
unanimous consent that the text of the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1701
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 "Reasonable Notice and Search
Act".
SEC. 2. LIMITATION ON AUTHORITY TO DELAY NOTICE OF SEARCH
WARRANTS.
Section 3103a of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking "may have an adverse
result (as defined in section 2705)" and inserting "will
endanger the life or physical safety of an individual, result
in flight from prosecution, or result in the destruction of
or tampering with the evidence sought under the warrant";
and
(B) in paragraph (3), by striking "a reasonable period"
and all that follows and inserting "7 calendar days, which
period, upon application of the Attorney General, the Deputy
Attorney General, or an Associate Attorney General, may
thereafter be extended by the court for additional periods of
up to 7 calendar days each if the court finds, for each
application, reasonable cause to believe that notice of the
execution of the warrant will endanger the life or physical
safety of an individual, result in flight from prosecution,
or result in the destruction of or tampering with the
evidence sought under the warrant."; and
(2) by adding at the end the following:
"(c) Reports.--
"(1) In general.--On a semiannual basis, the Attorney
General shall transmit to Congress and make public a report
concerning all requests for delays of notice, and for
extensions of delays of notice, with respect to warrants
under subsection (b).
"(2) Contents.--Each report under paragraph (1) shall
include, with respect to the preceding 6-month period--
"(A) the total number of requests for delays of notice
with respect to warrants under subsection (b);
"(B) the total number of such requests granted or denied;
and
"(C) for each request for delayed notice that was granted,
the total number of applications for extensions of the delay
of notice and the total number of such extensions granted or
denied.".
SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.
(a) PATRIOT Act.--Section 224(a) of the USA PATRIOT Act of
2001 (Public Law 107-56; 115 Stat. 295) is amended by
striking "213,".
(b) Amendments.--The amendments made by this Act shall
sunset as provided in section 224 of the USA PATRIOT Act of
2001.
______
