Congressional Record: October 2, 2003 (Senate)
Page S12377-S12387
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CRAIG (for himself, Mr. Durbin, Mr. Crapo, Mr. Feingold,
Mr. Sununu, Mr. Wyden, and Mr. Bingaman):
S. 1709. A bill to amend the USA PATRIOT ACT to place reasonable
limitations on the use of surveillance and the issuance of search
warrants, and for other purposes; to the Committee on the Judiciary.
Mr. CRAIG. Mr. President, I rise today on behalf of myself and
Senators Durbin, Crapo, Feingold, Sununu, and Bingaman, to introduce
the Security and Freedom Ensured Act of 2003, which we call the SAFE
Act.
This bill is aimed at addressing some specific concerns that have
been raised about the USA PATRIOT Act. We believe this is a measured,
reasonable, and appropriate response that would ensure the liberties of
law-abiding individuals are protected in our Nation's fight against
terrorism, without in any way impeding that fight.
Let me say at the outset that I voted in favor of the USA PATRIOT
Act. I believed then, and still do, that it was the right thing to do
in the wake of the terrible and unprecedented attacks on our Nation on
September 11, 2001. I would also like to express my gratitude to those
brave men and women who put their lives on the line every day to
protect the American people from further attacks by would-be terrorists
and criminals. The Department of Justice and Department of Homeland
Security should be commended for the dramatic progress they are making
in detecting, pursuing, and stopping those who pose a threat to our
Nation and our people.
Even so, the USA PATRIOT Act is not a perfect law, and it is no
criticism of those who are so ably waging the war against terrorism to
suggest that it may be in order to amend some aspects of that law.
The SAFE Act is intended to do just that: make some commonsense
changes that help to safeguard our freedoms, without sacrificing our
security. It focuses on areas of activity that have been particularly
controversial: delayed notice warrants, which are also referred to as
"sneak and peek" warrants; wiretaps that do not require specificity
as to either person or place; the impact of the new law on libraries;
and nationwide search warrants. Our bill would amend, not eliminate
these tools or repeal the USA PATRIOT Act in these areas.
I spend a lot of time on the ground in my home State of Idaho, and
regardless of the pride Idahoans have in the success of the war on
terrorism, many of them continue to raise concerns about the tools
being used in that war. Admittedly, a lot of misinformation has been
spread about the USA PATRIOT Act, and I applaud the Administration for
working to correct that misinformation. However, not all of the
concerns about the law are unfounded or misguided, and I strongly
believe they deserve a proper airing in Congress. Furthermore, one has
only to look at the cosponsors of the SAFE Act to see that these
concerns are not unique to Idahoans--they are shared by a wide regional
and political spectrum.
This morning, the Chairman and Ranking Member of the Senate Judiciary
Committee announced a series of hearings on how our anti-terrorism laws
are working. As a member of that committee, I look forward to the
opportunity of exploring these issues in detail and finding solutions
for any problems we discover, possibly including the SAFE Act. The
changes this bill makes are not numerous or sweeping, but they are
significant. I hope my colleagues will agree and will support the
legislation we are introducing today.
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. 1709
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 "Security and Freedom Ensured
Act of 2003" or the "SAFE Act".
SEC. 2. LIMITATION ON ROVING WIRETAPS UNDER FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978.
Section 105(c) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1805(c)) is amended--
(1) in paragraph (1), by striking subparagraphs (A) and (B)
and inserting the following:
"(A)(i) the identity of the target of electronic
surveillance, if known; or
"(ii) if the identity of the target is not known, a
description of the target and the nature and location of the
facilities and places at which the electronic surveillance
will be directed;
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"(B)(i) the nature and location of each of the facilities
or places at which the electronic surveillance will be
directed, if known; and
"(ii) if any of the facilities or places are unknown, the
identity of the target;"; and
(2) in paragraph (2)--
(A) by redesignating subparagraphs (B) through (D) as
subparagraphs (C) through (E), respectively; and
(B) by inserting after subparagraph (A), the following:
"(B) in cases where the facility or place at which the
surveillance will be directed is not known at the time the
order is issued, that the surveillance be conducted only when
the presence of the target at a particular facility or place
is ascertained by the person conducting the surveillance;".
SEC. 3. LIMITATION ON AUTHORITY TO DELAY NOTICE OF SEARCH
WARRANTS.
(a) In General.--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--
"(A) endanger the life or physical safety of an
individual;
"(B) result in flight from prosecution; or
"(C) result in the destruction of, or tampering with, the
evidence sought under the warrant"; and
(B) in paragraph (3), by striking "within a reasonable
period" and all that follows and inserting "not later than
7 days after the execution of the warrant, which period may
be extended by the court for an additional period of not more
than 7 days each time the court finds reasonable cause to
believe, pursuant to a request by the Attorney General, the
Deputy Attorney General, or an Associate Attorney General,
that notice of the execution of the warrant will--
"(A) endanger the life or physical safety of an
individual;
"(B) result in flight from prosecution; or
"(C) 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.--Every 6 months, the Attorney General
shall submit a report to Congress summarizing, with respect
to warrants under subsection (b), the requests made by the
Department of Justice for delays of notice and extensions of
delays of notice during the previous 6-month period.
"(2) Contents.--Each report submitted under paragraph (1)
shall include, for the preceding 6-month period--
"(A) the number of requests for delays of notice with
respect to warrants under subsection (b), categorized as
granted, denied, or pending; and
"(B) for each request for delayed notice that was granted,
the number of requests for extensions of the delay of notice,
categorized as granted, denied, or pending.
"(3) Public Availability.--The Attorney General shall make
the report submitted under paragraph (1) available to the
public.".
(b) Sunset Provision.--
(1) In general.--Subsections (b) and (c) of section 3103a
of title 18, United States Code, shall cease to have effect
on December 31, 2005.
(2) Exception.--With respect to any particular foreign
intelligence investigation that began before the date on
which the provisions referred to in paragraph (1) cease to
have effect, or with respect to any particular offense or
potential offense that began or occurred before the date on
which the provisions referred to in paragraph (1) cease to
have effect, such provisions shall continue in effect.
SEC. 4. PRIVACY PROTECTIONS FOR LIBRARY, BOOKSELLER, AND
OTHER PERSONAL RECORDS UNDER FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Applications for Orders.--Section 501(b)(2) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861(b)(2)) is amended--
(1) by striking "shall specify that the records" and
inserting "shall specify that--
"(A) the records"; and
(2) by striking the period at the end and inserting the
following: "; and
"(B) there are specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power.".
(b) Orders.--Section 501(c)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(c)(1)) is amended by
striking "finds that" and all that follows and inserting
"finds that--
"(A) there are specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power; and
"(B) the application meets the other requirements of this
section.".
(c) Oversight of Requests for Production of Records.--
Section 502(a) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1862) is amended to read as follows:
"(a) On a semiannual basis, the Attorney General shall,
with respect to all requests for the production of tangible
things under section 501, fully inform--
"(1) the Select Committee on Intelligence of the Senate;
"(2) the Committee on the Judiciary of the Senate;
"(3) the Permanent Select Committee on Intelligence of the
House of Representatives; and
"(4) the Committee on the Judiciary of the House of
Representatives.".
SEC. 5. PRIVACY PROTECTIONS FOR COMPUTER USERS AT LIBRARIES
UNDER NATIONAL SECURITY AUTHORITY.
Section 2709 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking "A wire" and inserting the following:
"(1) In general.--A wire"; and
(B) by adding at the end the following:
"(2) Exception.--A library shall not be treated as a wire
or electronic communication service provider for purposes of
this section."; and
(2) by adding at the end the following:
"(f) Defined Term.--In this section, the term `library'
means a library (as that term is defined in section 213(2) of
the Library Services and Technology Act (20 U.S.C. 9122(2))
whose services include access to the Internet, books,
journals, magazines, newspapers, or other similar forms of
communication in print or digitally to patrons for their use,
review, examination, or circulation.".
SEC. 6. EXTENSION OF PATRIOT SUNSET PROVISION.
Section 224(a) of the USA PATRIOT ACT (18 U.S.C. 2510 note)
is amended--
(1) by striking "213, 216, 219,"; and
(2) by inserting "and section 505" after "by those
sections)".
Mr. DURBIN. Mr. President, the USA PATRIOT Act, the counterterrorism
bill that the Bush administration pushed through Congress after the
September 11 terrorist attacks, has been the focus of much controversy
in recent months. I voted for the PATRIOT Act, as did the vast majority
of my colleagues in the Congress. I believed then, and I still believe,
that the PATRIOT Act made many reasonable and necessary changes in the
law.
For example, the PATRIOT Act tripled the number of Federal agents at
the Northern border, an area that had been greatly understaffed. It
allocated $100 million to upgrade technology for monitoring the
Northern border. It expedited the hiring of FBI translators, who were
desperately needed to translate intelligence after 9/11.
Most importantly, the PATRIOT Act updated information technology and
enhanced information sharing between Federal agencies, especially the
FBI and the CIA. As we learned after 9/11, the failure of these
agencies to communicate with each other may have prevented law
enforcement from uncovering the 9/11 plot before that terrible day.
However, the PATRIOT Act contains several controversial provisions
that I and many of my colleagues believe went too far. The Bush
administration placed Congress in a very difficult situation by
insisting on including these provisions in the bill. We were able to
amend or sunset some of the most troubling components of the bill.
However, many remained in the final version. As a result, the PATRIOT
Act makes it much easier for the FBI to monitor the innocent activities
of American citizens with minimal or no judicial oversight. For
example:
The FBI can now seize records on the books you check out of the
library or the videos you rent, simply by certifying that the records
are sought for a terrorism or intelligence investigation, a very low
standard. A court no longer has authority to question the FBI's
certification. The FBI no longer must show that the documents relate to
a suspected terrorist or spy.
The FBI can conduct a "sneak and peek" search of your home, not
notifying you of the search until after a "reasonable period," a term
which is not defined in the PATRIOT Act. A court is now authorized to
issue a "sneak and peek" warrant where a court finds "reasonable
cause" that providing immediate notice of the warrant would have an
"adverse result," a very broad standard. The use of "sneak and
peek" warrants is not limited to terrorism cases.
The FBI can obtain a "John Doe" roving wiretap, which does not
specify the target of the wiretap or the place to be wiretapped. This
increases the likelihood that the conversations of innocent people
wholly unrelated to an investigation will be intercepted.
Many in Congress did not want to deny law enforcement some of the
reasonable reforms contained in the PATRIOT Act that they needed to
combat terrorism. So, we reluctantly decided to support the
administration's version of the bill, but not until we secured a
commitment that they would be responsive to Congressional oversight and
consult extensively with us before seeking any further changes in the
law.
[[Page S12386]]
Unfortunately, the Justice Department has reneged on their commitment
to Congress, frustrating oversight on the PATRIOT Act at every turn.
Attorney General Ashcroft only rarely appears on Capitol Hill. In fact,
he has only testified before the Senate Judiciary Committee, of which I
am a member, once this year. He appeared, along with two other
administration officials, for just half a day. The Justice Department
regularly fails to answer congressional inquiries, either arguing that
requested information is classified, or simply not responding at all.
At the same time, the administration's allies in Congress have argued
that the PATRIOT Act's sunset clauses should be repealed before we have
had an opportunity to review their effectiveness. Earlier this year, we
learned that the administration had secretly drafted another sweeping
counterterrorism bill, "PATRIOT Act II," without consulting with
Congress. This bill would grant the Justice Department even broader
authority, such as the right to strip Americans of their citizenship.
That proposal generated widespread opposition, but, unchastened, the
administration went on the offensive again recently. On the anniversary
of the 9/11 attacks, President Bush proposed new legislation that would
give the Justice Department the authority to issue so-called
administrative subpoenas, without judicial review, create 15 new
federal death penalty crimes, and mandate pretrial detention for
defendants accused of a laundry list of crimes, many of them unrelated
to terrorism. These proposals continue the Administration's pattern of
seeking to limit judicial oversight and grant broad, unchecked
authority to law enforcement.
While they are pushing radical changes in the law, the Bush
administration has failed to take commonsense steps to prevent
terrorism, like developing fully interoperable information systems and
creating a consolidated terrorist watch list. Most of the information
systems now within the Department of Homeland Security's jurisdiction
were acquired and developed independently within the former agencies in
a parochial "stovepipe" fashion, and may be incompatible with other
DHS systems. The Bush administration indicated that an initial
inventory of these systems would be completed by this spring. I
understand that inventory is still not completed.
This April, the GAO concluded that nine different agencies still
develop and maintain a dozen terrorist watch lists, including
overlapping and different data, and inconsistent procedures and
policies on information sharing. The law creating the Department of
Homeland Security requires the Department to consolidate watch lists.
The Bush Administration promised that these lists would be consolidated
by the first day of Homeland Security's operations. Seven months later,
the lists are still not consolidated.
The Bush administration has devoted too many resources to
counterterrorism measures that threaten our civil liberties and do
little to improve our security. For example, John Ashcroft's Justice
Department has launched a number of high-profile initiatives that
explicitly target immigrants, especially Arabs and Muslims, for
heightened scrutiny. These efforts squander precious law enforcement
resources and alienate communities whose cooperation we desperately
need. They run counter to basic principles of community policing, which
reject the use of racial and ethnic profiles and focus on building
trust and respect by working cooperatively with community members.
The Justice Department's own Inspector General has found that the
Justice Department has not adequately distinguished between terrorism
suspects and other immigration detainees. The IG found that the Justice
Department detained 762 aliens as a result of the September 11
investigation, exactly zero of whom were charged with terrorist-related
offenses. No one is suggesting that the Department should never use
immigration charges to detain a suspected terrorist, but the broad
brush of terrorism should not be applied to large numbers of every out-
of-status immigrants who happen to be Arab or Muslim.
Many of us in Congress have raised concerns with the Justice
Department about implementation of the PATRIOT Act and other civil
liberties issues, and, rather than respond to legitimate concerns, they
have gone on the offensive. In testimony before the Judiciary
Committee, Attorney General John Ashcroft warned his critics:
To those who scare peace-loving people with phantoms of
lost liberty; my message is this: Your tactics only aid
terrorists--for they erode our national unity and diminish
our resolve. They give ammunition to America's enemies, and
pause to America's friends. They encourage people of good
will to remain silent in the face of evil.
It is unacceptable to dismiss those who raise legitimate concerns
about civil liberties as terrorist sympathizers.
For the American people, the PATRIOT Act has become a potent symbol
of the Justice Department's poor record on civil liberties. In fact,
three states, Alaska, Hawaii, and Vermont, and over 180 cities and
counties across the country, including Chicago in my home State of
Illinois, have passed resolutions opposing provisions of the PATRIOT
Act.
Almost 2 years after its passage, I believe that it is time to
revisit the debate about the PATRIOT Act. Let me be clear: I do not
believe that we should repeal the PATRIOT Act. However, I do believe
that we should amend several of its most troubling provisions. Law
enforcement must have all the necessary tools to combat terrorism, but
we must also be careful to protect the civil liberties of Americans. I
believe we can be both safe and free.
Today, I, Senator Craig, and several of our Republican and Democratic
colleagues in the Senate introduced the Security and Freedom Ensured
Act of 2003. The SAFE Act is a narrowly-tailored bipartisan bill that
would amend the most problematic provisions of the PATRIOT Act, those
that grant broad powers to the FBI to monitor Americans with inadequate
judicial oversight. The bill would impose reasonable limits on law
enforcement's authority without impeding their ability to investigate
and prevent terrorism. It would not amend pre-PATRIOT Act law in
anyway. The SAFE Act is supported by a broad coalition from across the
political spectrum, including the American Civil Liberties Union and
the American Conservative Union.
The SAFE Act would:
Reinstate the pre-PATRIOT Act standard for seizing business records.
In order to obtain a subpoena, the FBI would have to demonstrate that
it has reason to believe that the person to whom the records relate is
a suspected terrorist or spy. The SAFE Act retains the expansion of the
business record provision to include all business records, including
library records, rather than just the four types of records--hotel, car
rental, storage facility and common carrier--covered before the PATRIOT
Act.
Authorize a court to issue a delayed notification warrant where
notice of the warrant would 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.
It would require notification of a covert search within seven days,
rather than an undefined "reasonable period." It would authorize
unlimited additional 7-day delays if the court found that notice of the
warrant would continue to 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.
Limit "John Doe" roving wiretaps by requiring the warrant to
identify either the target of the wiretap or the place to be
wiretapped. To protect innocent people from Government surveillance, it
would also require that surveillance be conducted only when the suspect
is present at the place to be wiretapped.
Sunset several of the PATRIOT Act's most controversial surveillance
provisions on December 31, 2005. Many of PATRIOT's surveillance
provisions already sunset on December 31, 2005. The SAFE Act would
simply give Congress an opportunity to assess the effectiveness of
several additional controversial provisions before deciding whether to
reauthorize them.
Under the SAFE Act, the FBI would still have broad authority to
combat terrorism. For example, consider the following hypotheticals:
[[Page S12387]]
The FBI would like to search the travel records of a suspected
terrorist to help determine if he attended a meeting with other
extremists. The FBI has reason to believe the records are related to a
suspected terrorist, so the SAFE Act would authorize the issuance of a
subpoena.
The FBI suspects that an individual affiliated with an extremist
organization is planning a terrorist attack. The FBI would like to
search the suspect's computer drive to learn more about the plot
without tipping off the suspect and his co-conspirators. The SAFE Act
would permit the issuance of a "sneak and peek" warrant, and permit
the FBI to delay notice of the warrant for as long as it would continue
to 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.
At the same time, the SAFE Act would protect innocent Americans from
unchecked Government surveillance. For example:
The FBI is investigating suspected members of a terrorist cell and
would like to subpoena the records of a library and a bookstore that
they frequent. Currently, the FBI could subpoena all of the records of
the library and bookstore, including the records of countless innocent
Americans, by certifying they are sought for a terrorism investigation,
the exceedingly low standard created by the PATRIOT Act. The SAFE Act
would permit the FBI to obtain the records related to the suspected
terrorists, but not records related to innocent Americans who are not
suspected terrorists.
The FBI is tracking a suspected terrorist who is using public phones
at local restaurants to do business. The PATRIOT Act would permit the
issuance of a roving wiretap that would apply to any phone the suspect
uses. Under the PATRIOT Act, the FBI could monitor the conversations
not just of the suspect, but of innocent patrons of these restaurants.
The SAFE Act would also permit the issuance of a roving wiretap that
would apply to any phone the suspect uses, but would only permit the
FBI to gather intelligence when they ascertain that the suspect is
using a phone.
The Justice Department has argued that amending the PATRIOT Act would
handcuff law enforcement and make it very difficult to combat
terrorism. Nothing could be further from the truth. It is possible to
combat terrorism and protect our liberties. The SAFE Act demonstrates
that. I urge my colleagues to support it.
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