Congressional Record: April 7, 2004 (Senate)
Page S3898-S3914
SAFE ACT
Mr. DURBIN. Mr. President, I rise today to urge my colleagues to
cosponsor S. 1709, the Security and Freedom Ensured Act, the SAFE Act,
which Senator Larry Craig and I have introduced with several of our
colleagues from both sides of the aisle.
The SAFE Act is a narrowly tailored bill that would revise several
provisions of the USA PATRIOT Act. It would safeguard the rights of
innocent Americans without impeding law enforcement's ability to fight
terrorism. The SAFE Act is supported by a broad coalition of
organizations and individuals from across the political spectrum.
I challenge any of my colleagues to find the broad base of political
support for virtually any bill that we have found for the SAFE Act.
I voted for the PATRIOT Act. I believed then and I still believe that
the act made many reasonable and necessary changes in the law. However,
the PATRIOT Act contains several provisions that do not adequately
protect innocent Americans from unwarranted Government surveillance.
The FBI now has broad authority to obtain a ``John Doe'' roving wiretap
which does not identify the person or place being tapped. The FBI has
authority now to conduct sneak-and-peek searches and to seize personal
records.
The PATRIOT Act was passed at a critical moment in the history of the
United States. It was a moment of tragedy and fear. Now with more than
2 years of hindsight and experience, it is time to revisit this law.
I can recall--and I am sure all who followed this debate can
remember--how we felt after September 11. Just a few steps away from
this Chamber, I was meeting in a room with Senator Daschle and a group
of Senators and we saw on television the images which every American
has seared in their memory. Then someone suggested a bomb had gone off
at the Pentagon. We gathered by the windows and looked down this
beautiful Mall toward the Washington Monument and saw black smoke
billowing across the Potomac, unaware at that moment another airplane
had struck that building, killing many innocent Americans.
It was a time of great concern and great anxiety and great unity. The
administration came to us and said to the Congress, Give us the tools
to find the people responsible for this terrible American tragedy. Give
us what we need to protect Americans and to fight the war on terrorism.
In a rare showing of bipartisan support, Democrats and Republicans
came together and addressed some of the most difficult and complicated
questions about Government authority and
[[Page S3899]]
individual freedom we have had to address in our history. I am proud to
say in a short period of time there was a bipartisan consensus, a
consensus which tried to work out the best way to meet the requirements
of the administration and to make America safe.
Many of these provisions were worrisome. We were not certain whether
we had gone too far in giving the Government more authority and
Americans fewer freedoms than necessary. So we included in the PATRIOT
Act sunset provisions. Basically, what that means is that over some
period of time, a year or two, these provisions would expire and be
subject to renewal and reapproval by Congress. Of course, at that point
we would be forced to assess their impact.
Interestingly, since that day, from some quarters, the volume has
grown in support of basically eliminating the sunset provisions and
saying this will be permanent law and we will not revisit it. However,
many have looked at the PATRIOT Act, including Senator Craig and
myself, and feel there are four specific areas of the Act that should
be amended by our SAFE Act. Senator Craig, a Republican, and myself, as
a Democrat, reached across the partisan divide to work together on this
bill. It is quite an unusual political marriage. Senator John Sununu,
also a cosponsor, joked that when Senator Craig and Senator Durbin
introduce a bill together, it proves one thing: One of them must not
have read it.
Well, that is not true. We have both read the SAFE Act. Our
cooperation on this piece of legislation speaks volumes about the need
to make changes in the PATRIOT Act.
Some claim because we are at war, the American people want the
Government to keep them safe, no matter what. I think they are wrong.
The American people care very deeply about their freedoms. They are
watching Congress carefully and they are concerned that perhaps in some
areas we went too far in passing the PATRIOT Act. I have heard from a
lot of my constituents. 275 communities in 39 states have passed
resolutions expressing concern about the provisions of the PATRIOT Act.
These communities represent close to 50 million Americans. Almost one
out of every six Americans has, through their elected representatives
in their communities, expressed some concern about the provisions of
the PATRIOT Act.
Let me be very frank about the bill itself. The PATRIOT Act was over
130 pages long. It is very complicated. Most Americans have not read
every word of it. Many Americans who may not be able to explain the
exact details of the PATRIOT Act still are concerned it is restricting
their freedoms unnecessarily.
Some argue this means we should not take the American people so
seriously because they cannot cite specific sections of the bill. I
disagree. There is no reason to dismiss these public concerns. And this
is no excuse for inaction. The burden of proof is not on the American
people when the Government seeks to take away their rights and
liberties. The burden of proof is on the Government.
What is clear is the American people want us to strike a balance,
give the FBI and law enforcement and intelligence agencies the powers
they need to fight terrorism but also to protect American liberty. That
is what the SAFE Act would do.
An unusual thing has occurred with the introduction of this bill. I
have been on Capitol Hill for over two decades working in the House and
in the Senate. I have never seen this happen before. The Bush
administration announced with the introduction of the bill they would
veto it. The bill has not been considered before a committee. It has
not been subject to amendment in committee. It has not been debated in
committee. It has not come to the floor of the House or the Senate, nor
has it been subject to debate and amendment there. There is no final
work product, only the initial offering by Senator Craig and myself.
Based on that and that alone, the Bush administration has said they
are going to oppose this bill and they are going to veto this bill. I
have never seen anything quite like that.
The Justice Department argues our bill would eliminate some PATRIOT
Act powers and make it even more difficult to effectively fight
terrorism. Frankly, these objections do not hold water. The SAFE Act
neither repeals any provision of the PATRIOT Act nor amends pre-PATRIOT
Act law. In fact, the SAFE Act retains the expanded powers created by
the PATRIOT Act while placing important checks on these powers.
Senator Craig and I wrote a letter responding in detail to the
Justice Department's objections to the bill and their threat to veto
the bill, which has not even passed either the House or the Senate.
I ask unanimous consent that this letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on the Judiciary,
Washington, DC, February 23, 2004.
Hon. Orrin G. Hatch,
Chairman, Senate Committee on the Judiciary, Hart Senate
Office Building, Washington, DC.
Dear Mr. Chairman: We write to request that you schedule a
hearing in the Judiciary Committee as soon as possible on S.
1709, the Security and Freedom Ensured (SAFE) Act, a
narrowly-tailored, bipartisan bill that would amend several
provisions of the USA PATRIOT Act (P.L. 107-56). We would
also like to take this opportunity to respond to concerns the
Justice Department has raised regarding the SAFE Act.
We voted for the PATRIOT Act and believe now, as we did
then, that the PATRIOT Act made many reasonable and necessary
changes in the law. However, the PATRIOT Act contains several
provisions that create unnecessary risks that the activities
of innocent Americans may be monitored without adequate
judicial oversight.
This concern is shared by a broad coalition of
organizations and individuals from across the political
spectrum. In fact, 257 communities in 38 states--representing
approximately 43.5 million people--have passed resolutions
opposing or expressing concern about the PATRIOT Act. Groups
as politically diverse as the ACLU and the American
Conservation Union have also endorsed changes in the law.
In his State of the Union address, the President called for
reauthorization of the PATRIOT Act. Given the bipartisan
concerns about the most controversial provisions of the law,
however, this will not happen unless these provisions are
revisited. Congress, in fact, made oversight of the PATRIOT
Act implicit by sunsetting over a dozen sections of the bill
at the time of its passage.
S. 1709, the SAFE Act, was drafted with this oversight in
mind. It was drafted to clarify and amend in a minor way the
PATRIOT Act's most troubling provisions so that whole or even
piecemeal repeal of the law would be unnecessary. It was
drafted to safeguard the liberties of law-abiding citizens
while preserving the law enforcement authorities essential to
a successful war on terror.
The Administration unfortunately has threatened to veto the
SAFE Act. The Justice Department argues that the SAFE Act
would ``eliminate'' some PATRIOT tools and ``make it even
more difficult to mount an effective anti-terror campaign
than it was before the PATRIOT Act was passed.''
We respectfully disagree with the Justice Department's
objections to our reasoned and measured effort to mend the
PATRIOT Act. The SAFE Act neither repeals any provision of
the PATRIOT Act, nor impedes law enforcement's ability to
investigate terrorism by amending pre-PATRIOT Act law.
Rather, the SAFE Act retains the expanded powers created by
the PATRIOT Act while restoring important checks and balances
on powers including roving wiretaps, ``sneak and peek''
warrants, compelled production of personal records, and
National Security Letters.
Roving Wiretaps
The SAFE Act would place reasonable checks on the use of
roving wiretaps for intelligence purposes. Normally, when the
government seeks a warrant authorizing a wiretap, its
application must specify both the target (the individual) and
the facilities (the telephone or computer) that will be
tapped. Roving wiretaps, which do not require the government
to specify the facilities to be tapped, are designed to allow
law enforcement to tract targets who evade surveillance by
frequently changing facilities. Before the PATRIOT Act,
roving wiretaps were only permitted for criminal, not
intelligence, investigations. The PATRIOT Act authorized the
FBI to use roving wiretaps for intelligence purposes for the
first time.
Using roving wiretaps for intelligence purposes is
important. Unfortunately, the PATRIOT Act did not include
sufficient checks to protect innocent Americans from
unwarranted government surveillance. Under the PATRIOT Act,
the FBI is not required to determine whether the target of
the wiretap is present at the place being wiretapped, as it
is for criminal wiretaps.
The Intelligence Authorization Act of 2002 made another
dramatic change in the law. The FBI is now permitted to
obtain a ``John Doe'' roving wiretap for intelligence
purposes, an authority not authorized in any other context. A
``John Doe'' roving wiretap does not specify the target of
the wiretap or
[[Page S3900]]
the place to be wiretapped. In other words, the FBI can
obtain a wiretap without saying whom they want to wiretap or
where they want to wiretap.
The Justice Department defends this authority by noting
that even if the target of the wiretap is not identified, a
description of the target is required. The law does not
require the description to include any specific level of
detail, however. It could be as broad as, for example,
``white man'' or ``Hispanic woman.'' Such a general
description does not adequately protect innocent Americans
from unwarranted government surveillance.
The SAFE Act would retain the PATRIOT Act's authorization
of roving wiretaps for intelligence purposes but impose
reasonable limits on this authority. Law enforcement would
be required to ascertain the presence of the target before
beginning surveillance and identify either the target of
the wiretap or the place to be wiretapped. The FBI would
not be able to obtain ``John Doe'' roving wiretaps,
thereby ensuring that the government does not surveil
innocent Americans who are not the target of the wiretap.
The Justice Department argues that ``John Don'' roving
wiretaps are necessary because there may be circumstances
where the government knows a target's physical description
but not his identity. If the government is tracking a suspect
closely enough to utilize a wiretap, it is unlikely his or
her identity will be unknown to them. In this unusual
circumstance, the SAFE Act would permit the issuance of a
``John Doe'' wiretap which would not identify the target but
rather the facilities to be wiretapped. If the government
wished to obtain a roving wiretap, they could do so by
identifying the target. It is important to note that the
government is not required to identify the target by his or
her actual name. The government, for example, could identify
the target by an alias. This level of detail should be
required to make clear who is being targeted to prevent
innocent people with no relationship to the target from being
spied upon.
``sneak and peek'' searches
The SAFE Act would impose reasonable limits on the issuance
of delayed notification (or ``sneak and peek'') search
warrants. A sneak and peek warrant permits law enforcement to
conduct a search without notifying the target until sometime
after the search has occurred. The Justice Department argues
that sneak and peek warrants for physical evidence ``had been
available for decades before the PATRIOT Act was passed,''
but such warrants were never statutorily authorized before
the passage of the PATRIOT Act. Too, though some courts have
permitted sneak and peek warrants in limited circumstances,
the Supreme Court has never ruled on their constitutionality.
In codifying sneak and peek warrants, Section 213 of the
PATRIOT Act did not adopt limitations on this authority that
courts had recognized. For example, courts have required a
presumptive seven-day limit on the delay of notice. Section
213 requires notice of the search within ``a reasonable
period,'' which is not defined. According to the Justice
Department, this has resulted in delays of up to 90 days, and
of ``unspecified duration lasting until the indictment was
unsealed.''
Section 213 authorizes issuance of a sneak and peek warrant
where it finds that providing immediate notice of the warrant
would have an ``adverse result,'' as defined by 18 U.S.C.
Section 2705. Section 2705, which allows delayed notice for
searches of stored wire and electronic communications,
defines adverse result very broadly, including any
circumstances ``otherwise seriously jeopardizing an
investigation or unduly delaying a trial.'' This catch-all
provision could arguably apply in almost every case. A sneak
and peek search of a home involves a much greater degree of
intrusiveness than a seizure of wire or electronic
communications, so this broad standard for delaying notice is
inappropriate. Section 213 also does not limit delayed
notification warrants to terrorism investigations, and unlike
many surveillance-related PATRIOT Act provisions, does not
sunset.
Last year, an overwhelming majority in the House of
Representatives voted to repeal Section 213. The SAFE Act
would not go nearly this far. It would place modest limits on
the government's ability to obtain sneak and peek warrants,
while still permitting broad use of this authority.
The SAFE Act would still authorize a sneak and peek warrant
in a broad set of specific circumstances: 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. Importantly, it would eliminate the catch-
all authorization of sneak and peek authority in any
circumstances ``otherwise seriously jeopardizing an
investigation or unduly delaying a trial.'' It would require
notification of a covert search within seven days, but would
authorize unlimited additional seven-day delays so long as
any circumstance that would justify a delay of notice
continues to exist. According to the Justice Department,
``the most common period of delay'' under Section 213 is
seven days, so a seven-day limit with court-authorized
extensions is not overly onerous but would prevent abuse.
The Justice Department states that the SAFE Act imposes
restrictions on the issuance of sneak and peek warrants that
could tip off terrorists, and ``thus enable their associates
to go into hiding, flee, change their plans, or even
accelerate their plots.'' To the contrary, the SAFE Act would
authorize issuance of a sneak and peek warrant in all of
these circumstances. If notice of the warrant could lead
terrorists or their associates to hide or flee, a court could
delay notice to prevent flight from prosecution. If notice of
the warrant could lead terrorists or their associates to
change or accelerate their plots, a court could delay notice
to prevent the resulting danger to life or physical safety.
The Constitution protects the sanctity of our homes, and we
should only allow this sanctity to be breached in such
serious circumstances.
Compelled Production of Personal Records
The SAFE Act would place reasonable checks on the
government's authority to compel production of library and
other personal records. Section 215 of the PATRIOT Act
permits law enforcement to obtain such records without
individualized suspicion and with minimal judicial oversight.
Before the PATRIOT Act, FISA authorized the FBI to seek a
court order for the production of records from four types of
businesses: common carriers, public accommodations
facilities, physical storage facilities, and vehicle rental
facilities. In order to obtain such records, the FBI was
required to state specific and articulable facts showing
reason to believe that the person to whom the records relate
was a terrorist or a spy. If a court found that there were
such facts, it would issue the order.
Under FISA as modified by Section 215, the FBI is
authorized to compel production of ``any tangible things
(including books, records, papers, documents, and other
items)'' not just records, from any entity, not just the four
types of businesses previously covered. The FBI is only
required to certify that the records are ``sought for'' an
international terrorism or intelligence investigation, a
standard even lower than relevance. The FBI need not show
that the documents relate to a suspected terrorist or spy.
If the FBI makes the required certification, the court no
longer has the authority to examine the accuracy of the
certification or ask for more facts to support it; the
court ``shall'' issue the order. Defenders of Section 215
frequently assert that the issuance of an order for
records requires court approval, but this type of court
approval amounts to little more than a rubber stamp. The
PATRIOT Act gives the government too much power to seize
the personal records of innocent Americans who are not
suspected of involvement in terrorism or espionage.
The SAFE Act retains the PATRIOT Act's expansion of the
business records provision to cover ``any tangible things''
and any entity. It would reinstate the pre-PATRIOT Act
standard for compelling production of business records, which
requires individualized suspicion. The FBI would be required
to certify that there are specific and articulable facts
giving reason to believe that the person to whom the records
relate is a terrorist or a spy. A court would be required to
issue the order if it found that there are such facts. The
SAFE Act would thus prevent broad fishing expeditions which
waste scarce government resources, are unlikely to produce
useful information, and can infringe upon privacy rights.
The Justice Department argues that this standard is
inappropriate because it is higher than the relevance
standard under which federal grand juries can subpoena
records. This ignores some crucial distinctions. The
recipient of a grand jury subpoena can challenge the subpoena
in court and tell others, including those whose records are
sought, about the subpoena. In contrast, the recipient of a
Section 215 subpoena cannot challenge the subpoena in court
and is subject to a gag order. The scope of a federal grand
jury is limited to specific crimes, while an intelligence
investigation is not so limited.
Finally, it is very important to note that, in the more
than two years since the passage of the PATRIOT Act, Section
215 has never been used. If the authority has never been used
during this time of great national peril, it is difficult to
understand how imposing some reasonable checks on it could
cripple the war on terrorism. Indeed, the government offers
no examples, real or imagined, in which the SAFE Act's
revisions of Section 215 would hinder counterterrorism
efforts.
national security letters
The SAFE Act would impose reasonable limits on the issuance
of National Security Letters (NSLs). Section 505 of the
PATRIOT Act allows the FBI to use NSLs to obtain personal
records without individualized suspicion. An NSL is a
document signed by an FBI agent requiring disclosure of
financial, credit and other personal information and
requiring the recipient not to disclose the request to the
individual whose records are being sought. It does not
require judicial or grand jury approval.
Before the PATRIOT Act, the FBI could issue an NSL to
obtain records from a wire or electronic communication
service provider by certifying that it had reason to believe
that the person to whom the records relate is a terrorist or
a spy. The approval of FBI headquarters was required.
Section 505 of the PATRIOT allows the FBI to issue an NSL
simply by certifying that the records are ``sought for'' a
terrorism or intelligence investigation, regardless of
whether the target is a suspect. Headquarters approval is no
longer required. Unlike many other surveillance-related
PATRIOT Act provisions, the expanded NSL authority does not
sunset.
[[Page S3901]]
The SAFE Act would retain the PATRIOT Act's lower standard
for the issuance of NSLs and its delegation of issuing
authority to field offices. It would simply clarify that a
library is not a ``wire or communication service provider,''
which from the plain meaning of the words, it is not. The FBI
could still obtain information regarding e-mails or other
communications that took place at libraries by issuing an NSL
to the library's wire or communication service provider.
The Justice Department states that the SAFE Act would
``extend a greater degree of privacy to activities that occur
in a public place than to those taking place in the home.''
We disagree. The SAFE Act would simply ensure that the FBI
issues the NSL to the service provider, which is the
appropriate recipient, rather than a community library, which
is ill-equipped to respond to such a request.
expanding the sunset clause
The SAFE Act would expand the sunset clause of the PATRIOT
Act to ensure Congress has an opportunity to review
provisions of the bill that greatly expand the government's
authority to conduct surveillance on Americans. Many of the
PATRIOT Act's surveillance provisions sunset on December 31,
2005. The SAFE Act would sunset four additional surveillance
provisions: Sections 213, 216, 219, and 505.
We have already discussed Sections 213 (sneak and peek
warrants) and 505 (national security letters). Section 216
allows the use of surveillance devices known as pen registers
and trap and trace devices to gather transactional
information about electronic communications (e.g., e-mail) if
the government certifies the information likely to be
gathered is ``relevant'' to an ongoing criminal
investigation. The information the government gathers is
``not to include the contents'' of communications, but
content is not defined. Section 219 permits a federal judge
in any district in the country in which ``activities related
to terrorism may have occurred'' to issue a nationwide search
warrant in a terrorism investigation. The target of such a
search warrant has no ability to challenge the warrant in
their home district. The SAFE Act would simply give Congress
an opportunity to assess the effectiveness of these four
provisions before deciding whether or not to reauthorize
them.
The Justice Department argues that Congress should not
expand the sunset to these authorities because they will all
be needed by the FBI for ``the foreseeable future.'' Even if
this is true, it is no reason not to give Congress the chance
to review the usefulness of these powers. If they are needed
for the fight on terrorism, we will surely renew them.
Throughout American history, during times of war, civil
liberties have been restricted in the name of security. We
therefore have the responsibility to proceed cautiously.
During the Civil War, President Lincoln suspended habeas
corpus, and during World War II, President Roosevelt ordered
the detention of Japanese Americans in internment camps. We
must be vigilant in our defense of our freedoms. But we also
must ensure that law enforcement has sufficient authority to
combat the grave threat of terrorism. We must strike a
careful balance between the law enforcement power needed to
combat terrorism and the legal protections required to
safeguard American liberties. That is what the SAFE Act would
do.
While we are disappointed that the Administration has
expressed disagreement with the SAFE Act, we view this as an
opportunity for increased public discussion of one of the
most important issues of our day. Accordingly, we request
that you schedule a hearing on the SAFE Act as soon as
possible. Thank you for your time and consideration.
Sincerely,
Larry E. Craig,
U.S. Senator.
Richard J. Durbin
U.S. Senator.
Mr. DURBIN. Mr. President, let me cut through some of the rhetoric
and tell you what the SAFE Act does.
The SAFE Act would place reasonable checks on what are known as
roving wiretaps. Typically, when the Government seeks a warrant
authorizing a wiretap, its application must specify the individual and
the phone that will be tapped. A recommendation on roving wiretaps came
to us in the PATRIOT Act because of the obvious: There was a time and
place in America when people had one telephone at work, one telephone
at home, and if the Government sought to tap that telephone to find out
what was going on, it was pretty obvious which telephone lines needed
to be tapped. Now we live in a different world where people carry
around phones in their pockets. People may have several phones.
So the Government asked for additional authority to focus on those
who were engaged in telephone conversations on numerous different
telephone lines. Roving wiretaps do not require the Government to
specify the phone being tapped. They are designed to allow law
enforcement to track targets that evade surveillance by frequently
changing phones.
Before the PATRIOT Act, they were only permitted for criminal
investigations, not intelligence investigations. The PATRIOT Act
authorized the FBI to use roving wiretaps for intelligence purposes for
the first time. I supported this. I thought it was a reasonable
expansion of wiretap authority because it is important that
intelligence investigators have that authority.
Unfortunately, the PATRIOT Act did not include the same limits on
these powers that exist for criminal investigations. These limits would
have protected innocent Americans from unjustified surveillance. It is
a basic tenet of law that if you are going to tap a conversation, the
Government has to be specific enough so as to protect innocent people.
We should not allow the Government at any given time to impose a
wiretap on a phone that anybody might use. The Government should be
specific, protecting in the process the privacy of innocent people,
while clearly targeting those with a wiretap who could be guilty of a
crime or guilty of activities that are treasonous.
Under the PATRIOT Act, the FBI is not required to determine whether
the target of the wiretap is physically present at the location being
wiretapped before beginning the wiretap, as it is for criminal
wiretaps. The ascertainment requirement, as it is known, ensures
innocent Americans are not wiretapped unnecessarily, especially when
the FBI wiretaps a public telephone.
The FBI is now permitted to obtain a John Doe roving wiretap for
intelligence purposes, a sweeping authority never before authorized by
Congress. A John Doe roving wiretap does not specify the person or the
phone to be wiretapped. In other words, the FBI can obtain a wiretap
without telling a court whom they want to wiretap and where they want
to wiretap. This is a virtually limitless power.
The SAFE Act, which we have introduced, would continue to authorize
roving wiretaps for intelligence purposes but would impose reasonable
limits, the same limits that exist for criminal investigations. Law
enforcement would be required to determine whether the target of the
wiretap is physically present before beginning the wiretap. The FBI
would not be able to obtain ``John Doe'' roving wiretaps. These
protections would ensure that the Government does not wiretap innocent
Americans.
Secondly, the SAFE Act would impose reasonable limits on sneak-and-
peek searches. Sneak-and-peek searches are conducted secretly by the
FBI with no notice to the target until some time after the search.
You have all seen the scene on television--maybe you are familiar
with it from your community--where there is a knock on the door and a
law enforcement official says: I have a warrant to search your home.
Well, that is the usual course of events in criminal investigations. It
is much different when it comes to sneak-and-peek searches.
The Justice Department argues that warrants for sneak-and-peek
searches ``had been available for decades before the PATRIOT Act was
passed,'' but such warrants were never authorized by Congress before
the passage of the PATRIOT Act. Some courts permitted sneak-and-peek
warrants in limited circumstances, although the Supreme Court has never
ruled on their constitutionality.
In authorizing sneak-and-peek warrants, section 213 of the PATRIOT
Act did not include checks and limitations on the power of the
Government so as to protect innocent Americans. Courts have required
the FBI to notify the target of the search within 7 days of the search.
Section 213 of the PATRIOT Act, however, requires notice of the search
only within ``a reasonable period,'' which is not defined. According to
the Justice Department, this has resulted in delays of notice of up to
90 days, and of ``unspecified duration.''
Section 213 authorizes sneak-and-peek searches where a court finds
that providing immediate notice of the search would have an adverse
result. ``Adverse result'' is defined broadly. It includes
circumstances ``seriously jeopardizing an investigation or unduly
delaying a trial.'' This catch-all provision could arguably apply in
almost every case.
Unlike many other PATRIOT Act provisions that give new surveillance
powers to the FBI, the sneak-and-peek
[[Page S3902]]
authority does not sunset. It is permanent law.
According to a recent poll, 71 percent of Americans disapprove of the
current sneak-and-peek provision in the PATRIOT Act. Last year, an
overwhelming, bipartisan majority in the House of Representatives voted
to repeal this section of the PATRIOT Act. The SAFE Act that we
introduce would not go nearly that far. It would place reasonable
limits on the FBI's ability to conduct sneak-and-peek searches, while
still permitting broad use of this authority.
The SAFE Act would still authorize sneak-and-peek searches in a broad
set of specific circumstances. However, it would eliminate the catch-
all provision that allows sneak-and-peek searches in any circumstances.
The SAFE Act would require notification of a covert search within 7
days but would authorize a court to allow unlimited additional 7-day
delays upon application by the Government. According to the Justice
Department, ``the most common period of delay'' under section 213 is 7
days, so this limit that we establish is not unreasonable.
The SAFE Act would also sunset the sneak-and-peek authority, giving
Congress an opportunity to take a hard look at a provision in the law
that is so widely unpopular in the United States.
The third area has received a lot of attention, and it relates to the
compelled production of library and personal records.
The SAFE Act would place reasonable limits on the FBI's authority to
compel production of library and personal records. Before the PATRIOT
Act, the FBI was authorized to seek a court order for the production of
records from four types of businesses--common carriers, such as
airlines and trains and buses; public accommodations, such as hotels
and restaurants; storage facilities; and car rental companies. In order
to obtain records, the FBI was required to convince a court it had
reason to believe that the person to whom the records related was a
terrorist or a spy.
Under section 215 of the PATRIOT Act, the FBI can compel production
of ``any tangible things,'' not just records, from any entity, not just
the four types of businesses previously covered. The FBI, under the
PATRIOT Act, is only required to certify that the records are ``sought
for'' a terrorism or intelligence investigation, a standard even lower
than relevance. The FBI is not required to show that the documents
relate to a suspected terrorist or spy.
Now, those who defend section 215 frequently claim the FBI must
obtain court approval to compel production of records, but if you read
section 215, you will see that the type of court approval which is
authorized is a rubber stamp.
The PATRIOT Act gives the Government too much power to seize the
personal records of innocent Americans who are not suspected of
involvement in any terrorism or espionage. This could lead to broad
fishing expeditions which waste scarce Government resources, are
unlikely to produce useful information, and can infringe upon privacy
rights.
The SAFE Act would retain the PATRIOT Act's expansion of the records
provision to cover ``any tangible things,'' as I said earlier, and any
entity. But it would reinstate the pre-PATRIOT Act standard for
obtaining records, which requires individualized suspicion and
increased judicial oversight. The FBI would be required to convince a
court that it has reason to believe that the person to whom the records
relate is a terrorist or a spy. This would protect innocent Americans
and prevent fishing expeditions by the Government.
It is very important to note that in the more than 2 years since the
passage of the PATRIOT Act, section 215--compelling records, as I have
described--has never been used. If the authority has never been used
during this time of great national concern and peril, it is difficult
to understand how imposing some reasonable checks could harm the war on
terrorism.
The fourth and last section of the SAFE Act relates to national
security letters. The SAFE Act would impose reasonable limits on the
issuance of these letters. An NSL, as they are known, is a document
signed by an FBI agent requiring disclosure of financial, credit, or
other personal information. It can be issued to a wire or electronic
communication provider. The recipient of an NSL is subject to a gag
order and cannot disclose the request to the individual whose records
are being sought. An NSL does not require judicial or grand jury
approval.
Before the PATRIOT Act, the FBI could issue such a letter to obtain
records by certifying it had reason to believe that the person to whom
the records relate is a terrorist or spy. The approval of FBI
headquarters was required.
Section 505 of the PATRIOT Act allows the FBI to issue a national
security letter by certifying that the records are ``sought for'' a
terrorism or intelligence investigation, regardless of whether the
target is a suspect. FBI headquarters approval is no longer required.
Unlike many other surveillance-related PATRIOT Act provisions, this
expanded NSL authority does not sunset under the law of the PATRIOT
Act.
The SAFE Act would retain the PATRIOT Act's lower standard for the
issuance of NSLs and its delegation of issuing authority to FBI field
offices.
It would simply clarify that a library is not a ``wire or
communication service provider,'' which, from the plain meaning of the
words, it is not. The FBI could still obtain information regarding e-
mails and other communications originating from library computers by
issuing a national security letter to the library's wire or
communication service provider.
The SAFE Act would simply ensure that the FBI issues the national
security letter to the service provider, which is the appropriate
recipient, rather than a community library, which is not equipped to
respond to such a request.
We would also sunset this NSL authority, giving Congress another
opportunity to take a look at it.
We have the responsibility to give the Government the power it needs
to keep us safe, but at the same time we have a responsibility to the
Constitution, which we have all sworn to uphold and defend, to
zealously protect the personal freedoms and liberties of American
citizens.
Geoffrey Stone, a professor and former dean at the University of
Chicago Law School, made this observation:
In time of war . . . we respond too harshly in our
restriction of civil liberties, and then, later, regret our
behavior. It is, of course, much easier to look back on past
crises and find our predecessors wanting, than it is to make
wise judgments when we ourselves are in the eye of the storm.
But that challenge now falls to us.
We must meet this challenge head on. As we reflect on the course of
history, there has hardly been a time in the history of the Nation when
we faced great threats to our safety and security when the Government
did not overreach.
The greatest President, I think, who ever served us, Abraham Lincoln,
from my State of Illinois, during the course of the Civil War,
suspended the writ of habeas corpus, basically gathering into prison
suspects without any charges. It was clearly in violation of the
language of the Constitution. It was a power he assumed as Commander In
Chief, and many have questioned it in the years that have followed.
During World War I, when there was real concern about outside threats
to our country, we established the Alien and Sedition Acts, laws passed
by Congress and signed by the President which, on reflection, went too
far.
In World War II, we had the Japanese internment camps. We took
perfectly innocent Japanese Americans, simply because of their
ancestry, and put them in these settlement camps for lengthy periods of
time, even while the children would leave the camps to serve in the
Armed Forces.
During the cold war, a war that went on for decades and cost this
Nation billions of dollars and created great anxiety, the McCarthy
hearings and the questions of patriotism that were raised indicate that
again we had gone entirely too far. The list continues. Sadly, it
continues when we reflect on what we have done since September 11.
There is always a tension in our society between security and
freedom. Those who want more security often argue that the Government
needs more power and more authority, and individuals must give up those
freedoms. Many of us believe that in surrendering
[[Page S3903]]
our freedoms, we are surrendering our heritage to the terrorists. The
freedoms which were so carefully guarded and so zealously pursued by so
many generations, freedoms which we have won with the lives of
Americans in conflict time and time again, should be carefully guarded
as well.
I hope we will understand that the burden of proof is not on
individual Americans to come forward and prove to the Government they
have a right to their freedoms and liberties. When the Government seeks
to take away the freedom and liberty of an American citizen, it is the
burden of the Government to prove that is necessary.
With the SAFE Act, Senator Craig and I have taken four very specific
and discrete elements of the PATRIOT Act and we have said that by
changing these, we will still keep America safe, but we will prevent
intrusive Government activity into the privacy of individuals.
We can search the Constitution from the beginning to the end, through
every amendment, and never see the word ``privacy'' in it, but courts
have said repeatedly that that is what government should be all about--
protecting our privacy, only invading it in times when it is absolutely
necessary to protect our safety in our community or our security as a
Nation. The PATRIOT Act ended up being an allocation of power to the
Government that went far beyond what was necessary for the security of
our Nation and in fact invaded our rights and liberties.
We need to meet this challenge head on. It is possible to combat
terrorism and to protect our freedoms. We can be safe and free. The
SAFE Act demonstrates that. I urge my colleagues to join Senator Craig
and myself as cosponsors.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REED. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
SAFE Act
Mr. CRAIG. Mr. President, I have come to the floor, as my colleague
from Illinois did a few moments ago, to talk about the USA PATRIOT Act
and where we are with this issue that the American people have
recognized as important for a variety of reasons.
We all know that following the attack on American soil on September
11, 2001, we produced the USA PATRIOT Act to allow the law enforcement
and intelligence communities of this country to move forward and do a
variety of things. For the first time, we stepped
[[Page S3904]]
into some arenas of law that many citizens of our country looked at at
the time and said, be careful if you go there for you may well be
intruding upon what are fundamental and constitutional rights of
privacy with the American people.
I voted for the PATRIOT Act at that time, and I did so speaking to
the fact that I thought it was necessary that we move expeditiously to
allow our law enforcement community to operate for the purpose of
national security. I said at that time that this was not a perfect law.
In fact, 253 communities and 37 States later, representing
approximately 43.5 million people, have passed resolutions opposing or
expressing concern about the PATRIOT Act. Groups as politically diverse
as the ACLU and the American Conservative Union endorse changes in the
law.
In his State of the Union Address, the President called for
reauthorization of the PATRIOT Act. Given the bipartisan opposition to
the law at this moment as it currently stands, there are many of us who
believe it is necessary to make some adjustments in the law as we move
toward reauthorization. Congress, in fact, made oversight of the
PATRIOT Act implicit by sunsetting over a dozen sections of the bill at
the time of its passage.
The Senator from Illinois and I drafted S. 1709 with this oversight
in mind. It was drafted to clarify and amend in a minor way the PATRIOT
Act's most troubling provisions so that the whole or even piecemeal
repeal of the law would be unnecessary. It was drafted to safeguard the
liberties of law-abiding citizens while preserving the law enforcement
authorities essential to a successful war on terror.
Late last month, however, the Department of Justice issued a letter
objecting to the very legislation, objecting to it before there had
even been a hearing on it. Specifically, they objected to the SAFE Act
on grounds that it would ``eliminate'' some PATRIOT tools and even
``make it more difficult'' to fight terrorism than before enactment of
the PATRIOT Act.
Let me be emphatic: the SAFE Act in no way repeals any provision of
the PATRIOT Act, nor impedes law enforcement's ability to investigate
terrorism by amending pre-PATRIOT Act law. My name would not be on a
bill that accomplished those things.
What the SAFE Act does do is clarify and slightly modify several
provisions, particularly those related to the use of surveillance and
the issuance of search warrants, to restore the judicial oversight
requisite to healthy law enforcement.
Specifically, the SAFE Act would impose two reasonable safeguards on
the use of roving wiretaps for intelligence purposes.
Before the PATRIOT Act, roving wiretaps were only permitted for
criminal, not intelligence, investigations. The PATRIOT Act authorized
the FBI to use roving wiretaps for intelligence purposes for the first
time.
The Intelligence Authorization Act of 2002 further permitted the FBI
to obtain ``John Doe'' wiretaps in an intelligence investigation
without specifying either the target or the location of the wiretap.
Law enforcement is only required to provide a physical description of
the target, such as 5'7", Middle Eastern descent or something else
equally as vague, so as to, in my opinion, be meaningless. In order to
protect the private conversations of people wholly unrelated to the
investigation, the SAFE Act simply requires that law enforcement
specify either the target or the location of the wiretap and ascertain
the presence of the target before initiating the surveillance.
Far from eliminating the roving wiretap, S. 1709 only makes the
requirements for a roving wiretap for intelligence surveillance conform
to the requirements for roving wiretaps under the criminal code. Does
this tie law enforcement's hands in the way the Justice Department so
described it? Hardly so.
In the case of sneak-and-peek warrants, before the PATRIOT Act, there
was no statutory authority for delayed notice warrants for physical
evidence, although covert searches of oral and wire communications for
intelligence purposes were allowed. The Supreme Court never ruled on
the constitutionality of sneak-and-peek warrants for physical evidence,
and the Federal circuit courts were divided on the issue.
Despite this, the PATRIOT Act granted Federal law enforcement broad
authority to obtain sneak-and-peek warrants for physical evidence where
a court finds ``reasonable cause'' that providing immediate notice of
the warrant would have an adverse result, including seriously
jeopardizing an investigation or unduly delaying a trial,''--a very
broad standard.
The SAFE Act, our amendment to the PATRIOT Act, reasonably limits
when a court may issue a sneak-and-peek warrant for physical evidence
to situations where notice of the warrant would:
(1) endanger the life or physical safety of an individual;
(2) result in flight from prosecution; or,
(3) result in the destruction of or tampering with evidence sought
under the warrant.
Though the Department of Justice argues that scenarios such as a
suspect's associates fleeing, going into hiding, or accelerating their
plots would be excluded from the sneak-and-peek authority, these
clearly fall within the reasonable limits of the SAFE Act.
The Department of Justice also misrepresents the authority of the
sneak-and-peek provision when it says that the SAFE Act would
``restrict the ability of courts to extend the period of delay'' for a
delayed-notice warrant. Although S. 1709 requires notice of a covert
search within 7 days rather than a reasonable period, it authorizes
unlimited 7-day delays if the court finds that notice of a 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.
Far from restricting the courts, the SAFE Act restores what I believe
is the proper level of judicial oversight in the process.
I believe the Department of Justice also misrepresented the
modifications the SAFE Act would make to section 215 of the PATRIOT
Act, which permits law enforcement to obtain a vast array of business
records with minimal judicial oversight.
Before the PATRIOT Act, FISA search orders were available for only
certain travel-related ``business'' records--not library or personal
records--where the FBI had ``specific and articulable facts''
connecting the records to a foreign agent.
These orders are available for any and all records, including library
records, by simply certifying that the records are sought for an
international terrorism or intelligence investigation, a standard even
lower than relevance. The court does not even have the authority to
reject this certification under current law.
Though the Department of Justice describes the SAFE Act standard as a
``much more rigorous'' standard, FISA search orders would still be
available for any and all records, but only when the FBI has ``specific
and articulable facts'' connecting the records to a foreign agent.
Far from ``raising the standard'' to a new level, S. 1709 reinstates
the proper pre-PATRIOT standard for obtaining a FISA order for business
records, and even maintains the PATRIOT Act's expanded definition of
business records.
Likewise, the Department of Justice argues that section 5 of the SAFE
Act would impose an ``entirely new limitation'' on the use of National
Security Letters.
Before the PATRIOT Act, the FBI could issue a National Security
Letter to obtain personal records by certifying that it had reason to
believe that the person to whom the records relate is a foreign power
or agent of a foreign power.
Current law allows the FBI to obtain sensitive personal records,
without judicial approval, simply by certifying that they are sought
for a terrorism or intelligence investigation, regardless of whether
the target is a suspect.
While national security letters are only to be used to obtain name,
address, length of service, and local and long distance toll billing
records, available information indicated that the Justice Department is
using them to obtain other kinds of records, including library records.
Contrary to the assertions of the Department of Justice, the SAFE Act
maintains the greatly expanded definition of ``financial
[[Page S3905]]
records,'' and even makes such records available without individual
suspicion. S. 1709 only reasonably exempts libraries and Internet
terminals from National Security Letter orders.
While I am disappointed that the Administration has expressed
disagreement with the SAFE Act, I view this as an opportunity to
increase the public discussion on one of the most important issues of
the day.
I know Attorney General John Ashcroft. John and I are personal
friends. I am not worried about how John Ashcroft will enforce the law.
But administrations change. The law lasts, and it is imperative that it
embodies a smooth balance of liberty and justice.
I am not seeking to repeal any provision of the PATRIOT Act but
rather to salvage it by making necessary, albeit minor, amendments to
it in order to safeguard individual liberties while preserving the very
important law enforcement authorities it grants. Privacy is a hallmark
of our constitutional system--the right of the individual within that
system--and what we attempt to do by the SAFE Act, S. 1709, is to
assure that when we reauthorize the PATRIOT Act, we guarantee that
those rights are preserved.
I yield the floor.
Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues
Senator Craig and Senator Durbin in calling for hearings on this
important legislation to amend the PATRIOT Act.
After the vicious attacks of September 11, there was a broad
consensus in Congress about what needed to be done. We all recognized
the need to give law enforcement and intelligence officials stronger
powers to investigate and prevent terrorism, to provide officials with
effective ways to stop terrorists from entering our country, and to
achieve greater coordination between the law enforcement and the
intelligence communities. At the same time, we understood the critical
importance of protecting the basic rights and liberties of our citizens
and others residing legally in the United States and maintaining
America's long tradition of welcoming immigrants from around the world.
The challenge we faced, then as now, was how to strike the right
balance between law enforcement and civil liberties.
Many of us were concerned that some of the changes initially
requested by the administration did not strike the right balance. We
made significant improvements to the PATRIOT Act during Senate
negotiations, but we also recognized the need to follow the
implementation of these new powers carefully. That is why the 4-year
sunset provision is such an important part of the legislation. By
passing the sunset provision, Congress committed itself to revisiting
the PATRIOT Act after 4 years, in a non-election year, and making a new
and better-informed assessment of which powers should be retained,
which should be revised, and which should be eliminated.
Since the enactment of this law, there has been increasing bipartisan
concern about its effect on civil liberties in this country. Two
hundred fifty-seven communities in 38 States representing over 40
million citizens, have passed resolutions opposing or expressing
concern about the PATRIOT Act.
Clearly, we must do more to protect the basic rights and civil
liberties of law-abiding Americans. The bipartisan Security and Freedom
Ensured Act is narrowly written to correct some of the PATRIOT Act's
most controversial provisions: it would protect innocent people from
surveillance, by requiring ``roving wiretap'' warrants to identify
either the target of the wiretap or the place to be wiretapped; it
would impose reasonable limits on the Government's ability to carry out
``sneak and peek'' search warrants, by requiring notice of such a
covert search to be given within 7 days after the search, unless the
notice would endanger a person's life or result in the destruction of
evidence or a suspect's flight from prosecution; and it would protect
library and bookstore records from ``fishing expedition'' searches of
the records, while still allowing the F.B.I. to follow up on legitimate
leads.
None of these changes would amend pre-PATRIOT Act law in any way.
None would impede the ability of law enforcement and intelligence
officials to investigate and prevent terrorism. To the contrary, the
SAFE Act would retain the expanded powers created by the PATRIOT Act,
while restoring the constitutional safeguards that are indispensable to
our democracy. These safeguards are a continuing source of our
country's strength, not luxuries or inconveniences to be jettisoned in
times of crisis.
Unfortunately, the administration does not agree. Our proposal has
not yet received a hearing in the Judiciary Committee, yet the
administration has already threatened to veto it. Rather than comply
with the sunset provision specifically written into the PATRIOT Act
itself, President Bush has sought to make an election-year issue out of
it by calling on Congress to reauthorize the Act now. Rather than seek
to promote understanding, the Attorney General and other officials have
chosen to defend the PATRIOT Act by speaking only before audiences
sympathetic to their views. In Boston and other cities, citizens with
questions and concerns about the PATRIOT Act have been shut out.
I urge my colleagues not to accept this cynical election-year
strategy. In the House, Chairman Sensenbrenner has rejected calls for
reauthorizing the PATRIOT Act this year, and we should do the same in
the Senate. We should conduct additional hearings in the Judiciary
Committee on the many important civil liberties issues that have been
raised since September 11, including the administration's unprecedented
and troubling ``enemy combatant'' policy, under which U.S. citizens are
incarcerated without counsel or judicial review. Attorney General
Ashcroft should appear to defend these and other policies. And we
should hold hearings specifically on the bipartisan SAFE Act proposed
by Senator Craig and Senator Durbin.
We should also hold hearings on the need for legislation to protect
the civil liberties of immigrants. The detention provisions in the
PATRIOT Act have led to the unfair detention of innocent people.
Massive registration programs have fingerprinted, photographed and
interrogated over 80,000 innocent Arab and Muslim students, visitors,
and workers. ``Voluntary interview'' programs have made criminal
suspects out of Muslims legally residing in the U.S. In our pursuit of
terrorist suspects, our Government cannot be allowed to ride roughshod
over the basic rights and liberties of immigrants.
In a speech in 1987, Justice William Brennan observed that the United
States had repeatedly failed to preserve civil liberties during times
of national crisis--from the Alien and Sedition Acts of 1798, to the
internment of Japanese Americans during World War II--only to later
realize ``remorsefully . . . that the abrogation of civil liberties was
unnecessary.'' As we continue to face the crisis of terrorism today, we
should do all we can to avoid the errors of the past. The
administration and Congress should work together in a spirit of
bipartisanship and shared purpose, to bring terrorists to justice, to
enhance our security, and to preserve and protect our Constitution.
[...]
SAFE Act
Mr. SUNUNU. Madam President, I rise to speak on the issue of the
PATRIOT Act and to follow up on the remarks earlier this afternoon by
Senator Craig of Idaho. I have joined Senator Craig in cosponsoring the
SAFE Act, a piece of legislation that would make certain modifications
to the PATRIOT Act. I will not go into all of the details of the
legislation, as Senator Craig did. However, I do want to highlight a
couple of the main provisions of the legislation to outline our
thinking in crafting these provisions and underscore why I think we
need to take a step back, look at the PATRIOT Act in its totality and
try to make it work better and try to strike a better balance the
protection of the civil liberties we all cherish as Americans and the
tools we do believe are necessary for law enforcement and intelligence
agencies to conduct the war against terror.
It is unfortunate some people have come out with a knee-jerk reaction
[[Page S3907]]
calling for the repeal of the PATRIOT Act. Before the PATRIOT Act our
laws did not reflect or foresee a day and age with cellular phones,
satellite phones, and a high-speed Internet. There are a lot of very
important provisions of the PATRIOT Act that do update our law
enforcement capabilities in a way that reflects changes in technology.
Protecting civil liberties while giving law enforcement the ability to
operate as technology and new threats to our security emerge is
critical to winning the global war on terror.
We can draw an appropriate line to protect civil liberties in a few
specific areas. First, let's look at sneak-and-peek warrants, or a
delayed notification search warrant. Senator Craig spoke at length
about the provision in the SAFE Act that would modify the PATRIOT Act
to say instead of requiring notification within a reasonable amount of
time, which is clearly an arbitrary definition. Instead, we ought to
have a set time limit that notification of a search warrant executed
without notice has to be provided within 7 days of the execution of the
warrant.
Now, if there is a threat to safety, or risk of flight, or a risk of
damage to the investigation, the SAFE Act allows law enforcement
officials to go back to the judge and extend that notification another
7 days. And that can continue indefinitely. This approach--specifying a
time limit on the warrant and providing for more judicial review--is
much clearer and more respectful of civil liberties. For anyone to
suggest adding clarity in the law for notification undermines the
capacity of law enforcement to continue to do their job, I think, is a
level of rhetoric that does not serve an important debate such as this
very well.
Second, we added clarification to the provision in the PATRIOT Act
that deals with a roving wiretap. The SAFE Act would require law
enforcement to specify either the suspect to be put under surveillance
through a roving wiretap--an order that follows that suspect as they
use different cell phones, and other means of communication--or specify
a particular location to be monitored. Specify the suspect or specify
the location. Changing the PATRIOT Act to require such specification
would add clarity to ensure the PATRIOT Act is not misused and
minimizes the likelihood that innocent parties would be unknowingly
tapped. And again, such a change would only improve the PATRIOT Act as
it would protect those who are not targets of investigation but it
still give law enforcement the ability to conduct this kind of a roving
wiretap.
Third, another provision of the SAFE Act applies sunset provisions to
a number of different sections of the PATRIOT Act that do not sunset
over time. When we talk about a sunset provision in the U.S. Congress,
we are talking about a specific period during which the legislation is
in force, but after that period--it might be a 2-year or 3-year or 4-
year period--the law sunsets, and it needs to be reenacted or
reauthorized by Congress.
I think sunsets are healthy. They are good because they force
Congress to rethink and reargue a piece of legislation and examine how
the legislation has been used and problems that might exist with it. I
think we are much more likely to make improvements to legislation if we
have to reauthorize it at different periods in the future.
I do not understand why anyone would say a sunset provision weakens
legislation. It does not. It simply requires us to renew them at a
future date. I do not know why law enforcement would be afraid of a
sunset provision. I do not know why the Justice Department would be
afraid of a sunset provision. If there is value to the law, it is
helping law enforcement do their job, and all the while it is
appropriately protecting civil liberties, the law will be reauthorized
and improved over time.
I cannot think of any reason the provisions of the SAFE Act that add
clarity to the time frame for notification and judicial review of a
sneak and peak warrant, that add specification to the person or place
targeted for a wiretap, or that sunset provisions to a law--should be
opposed on the grounds that they somehow threaten our ability to
conduct the war on terrorism. Quite to the contrary, the provisions of
the SAFE Act go a long way toward ensuring individual civil liberties
are protected, that the ability to misuse or abuse the law is
minimized, that law enforcement continues to have what it needs to
prosecute the war on terrorism and that Congress has to affirm and
reauthorize legislation over time. I only see the SAFE Act as
strengthening the PATRIOT Act.
So I join with Senator Craig, Senator Durbin, Senator Feingold,
Senator Crapo, other members of the Senate and the wide range of
citizen groups who have all endorsed and supported the SAFE Act. I hope
when we begin deliberations and discussions about renewing and
extending the PATRIOT Act, these substantive yet modest, thoughtful
modifications are a vital part of that debate that is undertaken in
this Chamber.
I yield the floor.
[...]
Security and Freedom Ensured Act
Mr. FEINGOLD. Madam President, I join my colleagues Senators Craig
and Durbin in urging the administration and Congress to support the
SAFE Act. The SAFE Act is a much needed bill that amends a few
provisions of the USA PATRIOT Act in a reasonable way to preserve our
constitutional rights and protections while still protecting our Nation
against terrorism.
More than 2 years after the PATRIOT Act passed so overwhelmingly,
without close scrutiny by Congress, I am delighted that there is now
growing support for close examination of application of the law and for
changes to the law to ensure that, as we fight terrorism, we also
protect the civil liberties of Americans.
There is reason for hope. In Congress and in communities across the
country, the American people are beginning to realize that the PATRIOT
Act went too far.
In Congress, there is bipartisan support for changes to the law. I am
pleased to join my Republican colleagues, Senators Craig, Crapo,
Sununu, and Murkowski, as a cosponsor of the SAFE Act.
Over 275 communities and four States have now passed resolutions
expressing opposition to certain provisions of the PATRIOT Act.
Mr. President, the attacks of September 11, 2001, presented a new and
unique challenge to this country. I can think of nothing more important
than responding to that terrible challenge and protecting Americans
against terrorism. As I said during debate on the PATRIOT Act and
continue to say today, I believe most of the Act's provisions were
necessary and proper, such as increasing the number of border patrol
agents and allowing the FBI access to voicemails as a part of wiretaps.
But we must be sure that, in conducting the fight against terrorism,
the country's highest priority, we also respect the civil rights and
liberties of all Americans. History shows that America should not let
fear, however justified, cause us to sacrifice our liberty or the
liberty of others in the name of national security. The Palmer raids,
the McCarthy hearings, the internment of Japanese-Americans, these are
all events that have been judged poorly through the lens of history.
Today, we are again faced with a grave threat but we can and must face
it without potentially abusing the power of the Federal Government or
trampling fundamental constitutional rights and protections.
I am pleased that Members of Congress and the American people are
beginning to realize the values at stake. There is healthy debate
across the country in city councils, State legislatures, town hall
gatherings, and in Congress, on how best to preserve a free and open
society and to protect our Nation against future terrorist attacks.
In contrast, the administration does not seem interested in engaging
in a good faith dialogue with the American people and Members of
Congress about our legitimate concerns and reasonable proposals.
Instead, the President has prematurely called for lifting the sunset
on certain provisions of the PATRIOT Act that are due to expire.
Congress has a responsibility to exercise oversight and demand
accountability from the agencies using authority granted to them by
Congress. Nearly 2 years before some provisions of the PATRIOT Act will
sunset, the administration should be engaging in good faith discussions
and negotiations on how it is using the powers it has and how best to
protect our country from terrorism while also protecting the civil
liberties of our citizens.
I am pleased that both Senator Hatch and Representative
Sensenbrenner, the Chairmen of the Senate and House Judiciary
Committees, respectively, have disagreed with the President and have
stated that close scrutiny of the PATRIOT Act will be undertaken before
Congress will consider lifting the sunset provisions. I commend them
for taking this position. It is the right thing to do and the proper
role of Congress.
In addition to prematurely calling for lifting the sunset provisions,
the administration has already threatened to veto the SAFE Act if it is
enacted.
[[Page S3910]]
That is unfortunate, and very unusual. The administration has issued a
veto threat of a bill that was introduced just a few months ago and has
not even had a hearing yet. Thousands of bills are introduced each
year. The administration could spend a lot of time issuing veto threats
for every one it disagrees with. Obviously, it is worried about this
one. But veto threats at this early stage do not contribute to a
productive dialogue, and they certainly will not deter the growing
bipartisan interest in reevaluating the PATRIOT Act.
I would like to take a moment to talk about the SAFE Act and why it
is a reasonable proposal.
As my colleagues Senators Craig and Durbin have discussed, the SAFE
Act makes important modifications to enhance judicial review of the
FBI's roving wiretap and so-called ``sneak and peek'' search
activities.
I would like to comment on another important modification to the
PATRIOT Act contained in the SAFE Act, the section 215, or business
records, fix.
Prior to the PATRIOT Act, the Government could compel the production
of only certain business records in connection with a counter-
intelligence or international terrorism investigation, namely, hotel,
rental car, airline, and storage facility records. This was a narrow
set of records, and so it made sense to change the law. I agree with
that change, to allow the FBI access to more categories of business
records.
But the PATRIOT Act went too far because it also weakened the ability
of the courts to exercise their proper role as a check on the executive
branch, and it took away the requirement of individualized suspicion.
The PATRIOT Act changed the standards for allowing the FBI access to
such records. Prior to the PATRIOT Act, investigators had to state, in
their application to the secret FISA court, specific and articulable
facts giving reason to believe that the person to whom the records
pertained was a suspected terrorist or spy. If a court agreed, it would
issue the order.
The PATRIOT Act, however, vastly expanded this power so that
investigators no longer have to show ``specific and articulable
facts.'' Now, investigators need only state that the records are
``sought for'' a counter-intelligence or international terrorism
investigation. Upon receiving the application for a court order, the
judge must--must--issue the order. He or she does not have discretion.
The judge cannot review the merits of the request. For example, a judge
cannot review facts to determine whether the scope of the request is
reasonable. So long as the FBI asserts that the records are ``sought
for'' a foreign intelligence investigation, the judge must issue the
order.
The SAFE Act sponsors and I, as well as librarians, privacy
advocates, and an increasing number of Americans, believe this
provision of the PATRIOT Act goes too far. We recognize that there is
enormous potential for abuse if the FBI is allowed access to personal
information, such as medical records, library records, or newspaper or
magazine subscription records, all with no meaningful judicial review
and without a requirement of some showing that the records pertain to a
suspected terrorist or spy.
The SAFE Act would simply re-insert a pre-PATRIOT Act standard so
that he role of the judge as a check on the executive branch is real
and effective. Like the standard prior to the PATRIOT Act, under the
SAFE Act the FBI would need to state specific and articulable facts to
support its application. The SAFE Act simply restores the judicial
oversight that existed prior to the PATRIOT Act, giving the court the
power to ensure that the Federal Government is not engaging in a
fishing expedition at the expense of innocent Americans. This is a
reasonable response to protect both our security and our privacy.
The administration has not shown how this prudent safeguard would
harm the fight against terrorism or impair its ability to get access to
information it needs to protect the country.
I might add that according to the administration, as of last
September, almost 2 years since enactment of the PATRIOT Act, the
administration claims it had not yet used section 215 of the PATRIOT
Act. It is unclear whether they have used it since that time, and I
have recently sent the Attorney General a letter asking him whether it
has been used. But regardless of whether it has been used zero times or
a handful of times, it is nevertheless difficult to understand how re-
inserting an important judicial check would harm the fight against
terrorism.
I urge the administration to reconsider its position on the SAFE Act.
The American people have thoughtfully expressed their fears and wishes.
They want the Federal Government to protect them against terrorism, but
they also want the Federal Government to be respectful of the
Constitution every step of the way.
With passage of the SAFE Act, we can reassure the American people
that we are working to protect their rights and liberties, as well as
their safety. I urge my colleagues and the administration to support
the SAFE Act.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[...]
