Congressional Record: December 12, 2005 (Senate)
Page S13438-S13443
THE PATRIOT ACT
Mr. SPECTER. Mr. President, I have sought recognition to describe the
conference report on the PATRIOT Act, which was agreed to by conferees
in the House of Representatives and the Senate last Thursday. This is
the first time the Senate has been in session since that time, and the
first opportunity for me to make a floor statement outlining the
provisions of the conference report.
I begin by thanking the distinguished chairman of the House Judiciary
Committee, Congressman James Sensenbrenner, for his cooperation and
cordiality in working through many very difficult issues to come to
agreement between the House and Senate conferees.
There has been general agreement that reauthorization of the PATRIOT
Act is necessary as an important tool in the fight against terrorism.
One item which the PATRIOT Act accomplished, which was enacted shortly
after 3,000 Americans were killed and many wounded on 9/11, was
elimination of the so-called wall, so that evidence gathered under the
Foreign Intelligence Surveillance Act could be used in a criminal
prosecution. Prior to the enactment of that provision, if there was
evidence obtained under the Foreign Intelligence Surveillance Act,
which has a slightly lesser standard than probable cause used for a
criminal search warrant, it could not be used for a criminal case.
There is no disagreement, to my knowledge, with the proposition that
this provision is very important and ought to be retained.
[[Page S13439]]
Similarly, other provisions of the PATRIOT Act have been conceded to
be important: the provisions on obtaining records, the provisions on
wiretaps--although subject to some limitations, and I voted against
that provision when the bill was up shortly after the 9/11 attacks in
2001--and provisions on delayed notice warrants. And there are many
provisions which there has been general agreement ought to be retained.
There have been questions raised, and appropriately so, about the
sweep of the PATRIOT Act and whether it could accomplish its designed
purposes while providing more protection for civil rights and civil
liberties. A good bit of the public debate--most of the public debate--
has been focused on those provisions. The conference report makes vast
improvements on existing law on items such as obtaining business
records, the so-called library record provision; on the delayed notice
provisions; and on roving wiretaps. There are limitations now imposed
on national security letters, which have been in effect for decades.
They were not created by the PATRIOT Act, but the reauthorization of
the PATRIOT Act has provided a forum for reconsideration of the way
national security letters are used and to provide safeguards for civil
liberties.
The principal concern expressed publicly about the PATRIOT Act is the
ability of law enforcement to obtain business records--it has been
commonly referred to as the ``library records provision.'' There is
great concern about obtaining somebody's library records by an agent
unilaterally, who makes the certification that the records are sought
for an investigation, and the agent on his or her own goes and obtains
the records. The conference report is a vast improvement on existing
law because the conference report imposes judicial review, not quite up
to the standard of probable cause for a search and seizure warrant or
probable cause for an arrest warrant but cause shown.
The statute provides that the court may issue an order for records
only on ``a statement of facts showing that there are reasonable
grounds to believe that the tangible things sought are relevant to an
authorized investigation to protect against international terrorism.''
Having judicial intervention between the assertions of the law
enforcement officer and the invasion of privacy to get these records is
the common law standard; that is, the American way of protecting civil
liberties. So the impartial magistrate is interposed between the police
and law enforcement official and the citizen.
The Senate bill provided that relevance would be established only on
a showing one of three things:
No. 1, that the records pertain to ``a foreign power or an agent of a
foreign power; two, the activities of a suspected agent of a foreign
power who is the subject of an authorized investigation; or three, an
individual in contact with or known to a suspected agent of a foreign
power.''
The conference report makes an important change to the standard from
the Senate bill. This change was made after a closed-door briefing with
the Department of Justice was able to show strong reasons to allow the
judge to authorize obtaining records where one of those three
conditions had not been met, where there was a terrorism investigation
underway, and those records were crucial to moving ahead with that
terrorism investigation.
I believe, while it would be preferable to have the Senate version,
that this provision is reasonable and realistic and is certainly not a
substantial basis, not really any basis at all, for rejecting the
conference report.
The next most highly publicized concern has been on the so-called
national security letter. I repeat, the national security letter was
not created by the PATRIOT Act passed shortly after 9/11 but has been
an investigative tool for decades. Under current law, there is no
explicit right on the part of someone who has been served with a
national security letter to do anything about it except to comply. The
conclusion has been reached that the recipient may not make a
disclosure of that national security letter.
The conference report is a vast improvement. I have used the word
``vast'' repeatedly because it makes a very extensive improvement by
enabling the recipient to go to a lawyer. It explicitly says you can go
to your lawyer and you can challenge the national security letter and
you can go to court. You can have the national security letter quashed
if it is unreasonable, oppressive, or otherwise contrary to law. When
you go to court, you can get permission to tell the target of the
national security letter about the national security letter, if the
judge finds that doing so would not harm national security, interfere
with an investigation or diplomatic relations, or risk death or bodily
injury to another person.
The judicial review is somewhat limited in that there is a
presumption that the certification by high-ranking officials of the
Department of Justice or the FBI or the requesting agency will be
conclusive on whether the disclosure will be harmful to national
security or diplomatic relations.
What was not understood, really misunderstood, during the course of
the deliberation in the conference, was that the Senate bill, which was
widely heralded as being a remarkably good bill, agreed to by all 18
members of the Judiciary Committee--and it is very unusual to have the
Judiciary Committee agree unanimously on anything, let alone on a
matter of civil rights, but that was done. Then, when the bill was
forwarded to the floor, it went on our so-called unanimous consent
calendar, which means it was passed by unanimous consent without any
floor debate. It is highly unusual and perhaps unprecedented on a bill
of this magnitude to be on the unanimous consent calendar because
people all thought it was fine. That requires the absence of an
objection. Any one Senator can prevent it going on to the unanimous
consent calendar. That means 100 Senators have to in effect have
acquiesced.
The provision in the Senate bill was that ``in reviewing a
nondisclosure requirement, a certification by the government that the
disclosure may endanger the national security of the United States or
interfere with diplomatic relations will be treated as conclusive
unless the court finds that the certification was made in bad faith.''
As I said before, it was misunderstood and not noted by the conferees
as to that provision in the Senate bill which drew only praise, not an
objection. But there was an objection raised to a provision in the
conference report which is more protective of civil liberties than that
which was in the Senate report.
The conference report specifies ``if at the time of the petition, the
Attorney General, the Deputy Attorney General, an Assistant Attorney
General, or the Director of the Federal Bureau of Investigation, or in
the case of a request by a department agency, or instrumentality of the
Federal Government other than the Department of Justice, the head or
deputy head of such department, agency, or instrumentality''--here
comes the critical language--``certifies that disclosure may endanger
the national security of the United States or interfere with diplomatic
relations, such certification shall be treated as conclusive unless the
court finds that the certification was made in bad faith.''
So the conference report is more protective of civil rights than was
the Senate bill, which was so widely praised, because in the Senate
bill you had to have a certification by the Government, which means any
agent of the Government. But in the conference report, it was ratcheted
up to require certification by these high-ranking officials, such as
the Attorney General or the head of the FBI or the department heads or
Assistant Attorneys General, all of whom are subject to Senate
confirmation.
I think, had the misconception not prevailed about the presence of
that provision in the Senate bill, our conference would have been a lot
shorter, and I think it fair to say, not with absolute certainty but
fair to say, it would have had more signatures on the conference
report.
But in any event, the conference report gives much more by way of
protection of civil liberties than is present under existing law.
The third issue which was taken up to enhance the protection of civil
liberties is the delayed notice provision, or the so-called ``sneak and
peek provision.'' This involves a situation where
[[Page S13440]]
there would be a warrant to search someone's house or apartment
surreptitiously; that is, without giving notice to the individual.
Under existing law, under the PATRIOT Act, the Government must notify
the individual within a reasonable period of time. Reasonable has no
definitive limit, is vague and indefinite; it is open to very wide
interpretation as to what constitutes reasonable. The conference report
imposes a maximum time limit of 30 days, which can be extended on cause
shown if certain specific criteria were met.
The Senate bill had a 7-day notice requirement. The House bill had a
180-day requirement, and the compromise was 30 days. So most of the
provisions of the Senate bill or most of the substance of the Senate
bill was agreed to. Now you have a set time limit, unless cause is
shown to extend it; again, what I would characterize fairly as a vast
improvement. Then there are provisions under the roving wiretap laws. I
have always been concerned about the intrusion of privacy under
wiretaps. In my days as district attorney, I was the sole district
attorney among the 67 Pennsylvania counties to oppose legislation on
wiretaps. When the PATRIOT bill came to the Senate shortly after
September 11, I was one of the few Senators who voted against the
wiretap provision.
Law enforcement has made a case in support of a roving wiretap and
the PATRIOT Act conference report protects civil liberties additionally
by requiring that there be an identification of the individual, a
description, and that there be a showing that the individual will seek
to try to evade detection of the wiretap so that on that provision, as
well, there is an enhancement of civil liberties.
Perhaps the most contentious issue that was taken up by the
conference was the issue of the sunset. The House of Representatives
asked for a sunset of 10 years in their bill. The Senate bill has a
sunset of 4 years. The House proposed, in a very forceful way, a
compromise at 7 years, splitting the difference. The sunset provision
is very important because all of the provisions of the PATRIOT Act
expire at the end of the sunset unless there is a renewal. This puts
law enforcement on notice that there will be oversight by the Judiciary
Committees of both Houses, and the Senate Judiciary Committee has been
very diligent on oversight and is committed to extensive oversight on
this bill however it comes out.
There were very long, detailed, extensive negotiations. I thank the
White House. I thank the President, who was personally acquainted with
this issue. I had the opportunity to travel with him to Philadelphia
earlier today where he made a speech about Iraq. He said to me, it was
my expectation if we fulfilled your request for assistance on getting a
4-year sunset, there would be a little more receptivity for the bill. I
am paraphrasing what was involved. This issue went to the highest level
of the Federal Government. We had tremendous assistance from the White
House on the sunset provision. Not only was the President conversant
with it, as I have stated, but the Vice President was involved in the
negotiations, the Chief of Staff, Andrew Card, whom I talked to on a
number of occasions, and others in the White House. This 4-year sunset
is a major, major, major improvement for civil liberties interests in
that these provisions will be in existence not for 10 years, 7 years,
6, 5, but only for 4 years.
In essence, we have a bill which is not perfect. I don't know that we
deal in perfection in the legislative process. The whole art of
politics and legislation is the art of accommodation, conciliation, and
compromise, which is a worthwhile concept. That is the way we work in a
democracy. No one gets their way entirely.
If I had my preference, we would have taken the Senate bill lock,
stock, and barrel, and that would have been it. But we have a bicameral
legislature and considerations and issues raised by the House of
Representatives, I think again, are fairly raised and fairly stated. I
explicitly compliment Chairman Sensenbrenner for his cooperation and
his good work on this bill.
That is, believe it or not, a somewhat abbreviated version of this
legislation, this complex legislation.
We had a letter from six of our colleagues--Senator Craig, Senator
Sununu, Senator Murkowski, Senator Durbin, Senator Feingold, Senator
Salazar--and I ask unanimous consent that a copy of their letter to me
and a copy of my letter to them 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, November 17, 2005.
Hon. Arlen Specter,
Chairman, U.S. Senate Committee on the Judiciary, Dirksen
Senate Office Building, Washington, DC.
Hon. Patrick Leahy,
Ranking Member, U.S. Senate Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
Hon. Pat Roberts,
Chairman, U.S. Senate Select Committee on Intelligence, Hart
Senate Office Building, Washington, DC.
Hon. John D. Rockefeller IV,
Ranking Member, U.S. Senate Select Committee on Intel1igence,
Hart Senate Office Building, Washington, DC.
Dear Chairman Specter, Chairman Roberts, Ranking Member
Leahy, and Ranking Member Rockefeller: We write to express
our deep concern about the draft Patriot Act reauthorization
conference report made available to us early this afternoon.
As you know, the Senate version of the bill, passed by
unanimous consent in July, was itself a compromise that
resulted from intense negotiations by Senators from all sides
of the partisan and ideological divides. Unfortunately, the
conference committee draft retreats significantly from the
bipartisan consensus we reached in the Senate. It does not
accomplish what we and many of our colleagues in the Senate
believe is necessary--a reauthorization bill that continues
to provide law enforcement with the tools to investigate
possible terrorist activity while making reasonable changes
to the original law to protect innocent people from
unnecessary and intrusive government surveillance.
To support this bill, we would need to see significant
movement back toward the Senate position in the following
areas:
1. Section 215
The draft conference report would allow the government to
obtain sensitive personal information on a mere showing of
relevance. This would allow government fishing expeditions.
As business groups like the U.S. Chamber of Commerce have
argued, the government should be required to convince a judge
that the records they are seeking have some connection to a
suspected terrorist or spy.
The draft conference report does not permit the recipient
of a Section 215 order to challenge its automatic, permanent
gag order. Courts have held that similar restrictions violate
the First Amendment. The recipient of a Section 215 order is
entitled to meaningful judicial review of the gag order.
2. National Security Letters
The draft conference report does not provide meaningful
judicial review of an NSL's gag order. It requires the court
to accept as conclusive the government's assertion that a gag
order should not be lifted, unless the court determines the
government is acting in bad faith. The recipients of NSLs are
entitled to meaningful judicial review of a gag order.
The draft conference report makes it a crime, punishable by
up to one year in prison, for individuals to disclose that
they have received an NSL, even if they believe their rights
have been violated. Violating an NSL gag order should only be
a crime if the NSL recipient intends to obstruct justice.
3. Sunsets
The draft conference report includes seven-year sunsets,
which are too long. Congress should have the opportunity to
again review the controversial provisions of the Patriot Act
before the final year of the next presidential term. Four-
year sunsets would ensure accountability and effective
oversight.
The draft conference report does not sunset the NSL
authority. In light of recent revelations about possible
abuses of NSLs, the NSL provision should sunset in no more
than four years so that Congress will have an opportunity to
review the use of this power.
4. Sneak and Peek Warrants
The draft conference report requires the government to
notify the target of a ``sneak and peek'' search no earlier
than 30 days after the search, rather than within seven days,
as the Senate bill provides and as pre-Patriot Act judicial
decisions required. The conference report should include a
presumption that notice will be provided within a
significantly shorter period in order to better protect
Fourth Amendment rights. The availability of additional 90-
day extensions means that a shorter initial time frame should
not be a hardship on the government.
For the past several years, our bipartisan coalition has
been working together to highlight and fix the civil
liberties problems posed by the Patriot Act. We introduced
the SAFE Act to address those problems, while still
maintaining important law enforcement powers needed to combat
terrorism. We cannot support a conference report that would
eliminate the modest protections for civil liberties that
were agreed to unanimously in the Senate.
[[Page S13441]]
The conference report, in its current form, is
unacceptable. We hope that you, as members of the conference
committee, will consider making the changes set forth above.
If further changes are not made; we will work to stop this
bill from becoming law. Thank you for your consideration.
Sincerely,
Larry E. Craig.
John E. Sununu.
Lisa Murkowski.
Dick Durbin.
Russ Feingold.
Ken Salazar.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
Hon. Larry E. Craig.
Hon. John E. Sununu.
Hon. Lisa Murkowski.
Hon. Richard J. Durbin.
Hon. Russell D. Feingold.
Hon. Ken Salazar.
Dear Colleagues: I am in receipt of your November 17 letter
outlining your concerns about the draft Conference Report
reauthorizing the USA PATRIOT Act. My purpose in writing is
to explain how the final Conference Report addresses the
issues you have identified; or, where the issues are not
addressed, to explain why I am nonetheless comfortable with
the bill. Ultimately, my aim is to demonstrate to you that
the bill is one civil libertarians can, and should, embrace.
Addressing each of your concerns in turn:
1. section 215
The draft Conference Report would allow the government to
obtain sensitive personal information on a mere showing of
relevance. This would allow government fishing expeditions.
As business groups like the U.S. Chamber of Commerce have
argued, the government should be required to convince a judge
that the records they are seeking have some connection to a
suspected terrorist or spy.
Although the Conference Report does authorize the FISA
court in certain narrow circumstances to issue an order under
Section 215 upon a showing of relevance, I respectfully
disagree that the result is a provision more open to abuse.
In fact, the additional protections we have obtained in the
Conference Report make Section 215 unquestionably more
protective of civil liberties and privacy rights than current
law, and likely even more protective of those rights than the
Senate bill.
First, it is important not to overstate the significance of
the fact that the FISA court, in extraordinary circumstances
only, will allow a 215 order upon a showing of relevance to a
terrorism investigation. The relevance standard will apply
only in extraordinary circumstances because the Conference
Report channels all applications for Section 215 orders into
the three categories delineated in the Senate bill. By
providing a presumption of relevance when the government can
demonstrate a connection to a suspected terrorist or spy, the
bill ensures that requests falling outside the three
categories will be the exception and not the rule. Indeed,
the presumption ensures that law enforcement will face an
uphill battle in any effort to obtain a 215 order that does
not fall into one of the three categories and thereby
provides an incentive for the FBI to use the tool only when
it can show a connection to a suspected terrorist or spy.
Some flexibility was necessary because the Justice Department
was able to demonstrate, in a classified setting, that
circumstances arise in which it is necessary to obtain an
individual's records in an authorized investigation in which
it is not possible to demonstrate that the individual is
working on behalf of a foreign power or a known terrorist
organization.
In addition, the Conference Report includes a number of
safeguards against abuse of Section 215 that neither the
Senate bill nor the House bill contained. First, the
Conference Report would require a comprehensive audit by the
Justice Department's famously independent Inspector General
of law enforcement's use of Section 215. The Inspector
General's reports will examine the use of Section 215 both
before and after reauthorization of the PATRIOT Act. Second,
the Conference Report would permit, for the first time,
public reporting of the total number of 215 orders sought and
granted. A third safeguard against the possibility of fishing
expeditions is the Conference Report's provision that Section
215 orders may not be used for the purpose of conducting
threat assessments. This requirement ensures that Section 215
will be used only during those authorized investigations that
have progressed beyond the initial stages. A fourth new
safeguard is that every order under Section 215 will require
minimization procedures that sharply curtail the retention
and dissemination of information concerning United States
citizens. These minimization procedures will prevent the
government from stockpiling information on American citizens
or from maintaining records on citizens who are only
incidental to the investigation.
Finally, it is important to point out that the conferees
obtained all of these additional protections without
sacrificing the critical improvements over the current
Section 215 that made the Senate's PATRIOT bill attractive to
so many: (1) the requirement of a statement of facts to
accompany an application for an order under Section 215; (2)
the express vesting of discretion in the FISA judge to
review, and to reject, the FBI's application for a 215 order;
(3) the express right of recipients to consult legal counsel
and seek judicial review of 215 orders; (4) the requirement
of approval by senior FBI officials before the government can
seek library records, medical records, educational records,
gun records, and other sensitive documents; (5) the enhanced
reporting to Congress on the use of Section 215, including
specific information concerning requests for the most
sensitive documents; (6) the requirement that 215 orders can
compel the production only of those tangible things that
could be obtained under a grand jury subpoena or other orders
issued by federal courts; and (7) the inclusion of a four-
year sunset provision to guarantee that Congress will revisit
Section 215 at a later time.
The draft Conference Report does not permit the recipient
of a Section 215 order to challenge its automatic, permanent
gag order. Courts have held that similar restrictions violate
the First Amendment. The recipient of a Section 215 order is
entitled to meaningful judicial review of the gag order.
After extensive discussion of this issue by the conferees,
I was able to conclude that the statutory scheme that the
Conference Report establishes would permit adequate judicial
review of the nondisclosure requirement.
Primarily, this review occurs because an order under
Section 215 cannot issue without advance approval by the FISA
court. This review is not only important as a practical
matter, in that it guarantees judicial scrutiny of the
confidentiality provision in each 215 order; but it could
well prove dispositive in any First Amendment challenge. In
fact, one federal court that invalidated the nondisclosure
requirement of an NSL on First Amendment grounds specifically
singled out the absence of explicit judicial review in the
present law as the principal reason the regime governing
nondisclosure of orders under Section 215 was preferable. Doe
v. Ashcroft, 334 F. Supp. 2d 471, 515 (S.D.N.Y. 2004)
(``Furthermore, these provisions are not quite as severe as
those contained in the NSL statutes because, with one narrow
exception for certain FISA surveillance orders [that is not
relevant here], they apply in contexts in which a court
authorizes the investigative method in the first place.'');
cf Doe v. Gonzales, 386 F. Supp. 2d 66, 80 (D. Conn. 2005)
(criticizing the law governing NSLs on First Amendment
grounds because it ``provides no judicial review of the NSL
or the need for its non-disclosure provision'').
2. national security letters
The draft Conference Report does not provide meaningful
judicial review of an NSL's gag order. It requires the court
to accept as conclusive the government's assertion that a gag
order should not be lifted, unless the court determines the
government is acting in bad faith. The recipients of NSLs are
entitled to meaningful judicial review of a gag order.
As an initial matter, the ability to challenge the issuance
of an NSL remains the same as that necessary for challenging
a grand jury subpoena. A party challenging an NSL may be
successful if it is shown that compliance with the NSL would
be unreasonable, oppressive, or otherwise in violation of the
law. The provision at issue relates only to the question of
whether the recipient of the NSL may disclose that fact. In
that situation, the deference a court must show to the
government is not nearly as broad as stated. Specifically,
the court is required to treat a government certification
with deference only when the government asserts that removing
the nondisclosure requirement would endanger the national
security of the United States or interfere with diplomatic
relations. Even so, the court is able to invalidate the
nondisclosure requirement in the event the government acts in
``bad faith.'' In all other circumstances, the Conference
Report makes no provision for any special deference to the
government.
Furthermore, it is important to note that substantively
identical language was included in the Senate bill, which
passed this body by unanimous consent. See S. 1389
Sec. 8(b)(2) (``In reviewing a nondisclosure requirement, the
certification by the Government that the disclosure may
endanger the national security of the United States or
interfere with diplomatic relations shall be treated as
conclusive unless the court finds that the certification was
made in bad faith.''); see also H.R. 3199 Sec. 16.
The conference adopted an important additional safeguard
ensuring that the presumption will be used only sparingly.
Under the Conference Report, the Attorney General, the Deputy
Attorney General, an Assistant Attorney General, the Director
of the FBI, or an official of similar stature in another
agency must personally make the requisite certification in
order to obtain the conclusive presumption. This is in
contrast to the House bill, which allowed this certification
to be made by the Special Agent in Charge of any one of the
FBI's 56 field offices, and the Senate bill, which provided
for certification by ``the Government,'' generally. In light
of this additional safeguard over and above what was in
either bill, as well as additional public reporting and
Inspector General reports concerning NSLs, my hope is that
this provision will not prevent you from supporting the
Conference Report.
The draft Conference Report makes it a crime, punishable by
up to one year in prison, for individuals to disclose that
they have received an NSL, even if they believe their rights
have been violated. Violating an NSL gag order should only be
a crime if the NSL recipient intends to obstruct justice.
[[Page S13442]]
The final Conference Report addresses this concern in full.
After intense negotiations involving various Senators and
House Members and the Senate and House leadership, the one-
year misdemeanor for knowing and disclosure of an NSL was
struck from the bill. Consistent with your request, violation
of the NSL nondisclosure provision is only a crime if the NSL
recipient intends to obstruct justice.
At the same time, I did want to take the opportunity to
clarify some facts about the NSL nondisclosure requirement,
which will not have the onerous impact on individual rights
that is implied. First, in contrast to current law, NSLs will
not automatically carry an injunction against disclosure; it
is only when the government certifies that disclosure may
result in a danger to national security or to the physical
safety of an individual, or in interference with an
investigation or diplomatic relations, that confidentiality
is even on the table. Second, the Conference Report
explicitly provides that individuals can disclose the
existence of the NSL both to those to whom such disclosure is
necessary to comply with the request and, critically, to an
attorney ``to obtain legal advice or legal assistance with
respect to the request.'' Thus, an individual who believes
her rights have been violated will be able to consult counsel
to explore her options for redressing any grievance. Third,
and also in contrast to current law, the Conference Report
includes a detailed mechanism for judicial review of the
nondisclosure requirement. The end result is that any
individual whose rights may have in fact been violated
will have a forum in which to petition for relief.
3. sunsets
The draft Conference Report includes seven-year sunsets,
which are too long. Congress should have the opportunity to
again review the controversial provisions of the Patriot Act
before the final year of the next presidential term. Four-
year sunsets would ensure accountability and effective
oversight.
The final Conference Report addresses this concern in full.
After intense negotiations involving various Senators and
House Members, the Senate and House leadership, and the
Administration, the seven-year sunsets were reduced to four
years.
In addition, Section 106A of the Conference Report, which
does not have an analogue in either bill and was generated
during the conference, provides that the Inspector General of
the Department of Justice will conduct two comprehensive
audits of the use of Section 215. Together with the sunsets,
these provisions go farther than even the Senate bill did in
ensuring that the Justice Department is fully accountable for
its use of Section 215. The Inspector General is known,
justifiably, for his thorough, independent-minded, and hard-
hitting reports, so there is every reason to think that these
inquiries will be an effective check on the Justice
Department. Moreover, the release of each report will be
occasion for front-page news stories, Congressional
briefings, and public hearings--all of which will generate
fresh political will and opportunity to rectify any
problematic aspects of Section 215.
The draft Conference Report does not sunset the NSL
authority. In light of recent revelations about possible
abuses of NSLs, the NSL provision should sunset in no more
than four years so that Congress will have an opportunity to
review the use of this power.
NSLs have been used since at least the 1970s. No evidence
exists suggesting their use has ever been abused, nor until
now has anyone requested NSLs be subject to a sunset. Neither
the House nor the unanimously passed Senate bill contained a
sunset provision for NSLs. Nevertheless, the Conference
Report contains new accountability provisions and creates
additional opportunities for oversight. As with Section 215,
the Conference Report requires audits by the Inspector
General of law enforcement's use of NSLs. Section 119 of the
Conference Report, which was generated during the conference,
requires two such comprehensive audits. These audits should
have much the same effect as a sunset.
Despite recent press reports, there is no evidence that
NSLs have been abused. Much of the relevant information about
NSLs is classified, so any individual news story will
understandably omit critical information that is available to
lawmakers. Thus, I strongly encourage you or your staff to
contact the Intelligence Committee if you are interested in
the complete picture concerning the use of NSLs. I think you
will be satisfied, as I was, that the media coverage vastly
overstates any such ``problems.''
4. sneak and peek warrants
The draft Conference Report requires the government to
notify the target of a ``sneak and peek'' search no earlier
than 30 days after the search, rather than within seven days,
as the Senate bill provides and as pre-Patriot Act judicial
decisions required. The Conference Report should include a
presumption that notice will be provided within a
significantly shorter period in order to better protect
Fourth Amendment rights. The availability of additional 90-
day extensions means that a shorter initial time frame should
not be a hardship on the government.
As you know, I was able to include in the Senate bill a 7-
day limit on the period in which notice can be delayed in
delayed-notice search warrants. The House bill, of course,
adopted a limit of 180 days, and the House was insistent on
not going any lower than 90 days--a period that, it was
argued, is consistent with the analogous limit for Title III
wiretaps. Moreover, while it is true that the Second Circuit
indicated that 7 days was a presumptively reasonable period
of delay, the Fourth Circuit countenanced an initial delay of
45 days. Still, my twin objectives in conference were to
retain a shortened delay period and to mitigate the
significant problem of courts permitting open-ended
notification delays.
The Conference Report provides that the maximum period for
which notice can initially be delayed is 30 days. Although
this period is a few weeks longer than the 7-day time limit
from the Senate bill, it is considerably shorter than the 180
days permitted in the House bill and is a significant
improvement over the original PATRIOT Act, which included no
limits on the period of delay other than what was
``reasonable.'' We were also able to eliminate the
possibility of open-ended delays by mandating that
notification occur on a date certain. In addition, the
Conference Report preserves from the Senate bill both public
reporting provisions and the requirement that extensions of
the delay period be granted only upon an updated showing of
the need for further delay.
Finally, it is important to be mindful of the very limited
scope of this issue. Even in the national emergency following
September 11, 2001, delayed-notice searches were exceedingly
rare. Indeed, the Justice Department has estimated that
delayed-notice warrants constituted less than one-fifth of
one percent of all search warrants executed by Department
components between enactment of the PATRIOT Act and January
31, 2005.
I appreciate the opportunity to explain my views regarding
the Conference Report, and I remain grateful for your
insights on these important issues. The Conference Report
goes far in achieving the aims of the original Senate bill;
namely, it permits law enforcement the necessary tools to
protect the country against terrorist acts while at the same
time safeguarding the civil liberties we all cherish. In
particular, what sets the Conference Report apart from even
the Senate bill is its detailed reporting requirements to
Congress and the public and its interposition of judicial
review on some of the more controversial provisions.
Requiring both detailed reporting and Inspector General
audits will enable the Congress, as well as the public, to
guard vigilantly against any possible governmental incursions
upon civil liberties.
Very truly yours,
Arlen Specter.
Mr. SPECTER. I ask unanimous consent that a copy of a ``Dear
Colleague'' letter circulated generally to all the Senators dated
December 9, 2005, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
United States Senate,
Committee on the Judiciary,
Washington, DC, December 9, 2005.
Dear Colleague: Upon the Senate's return during the week of
December 12th, we will be voting on the conference report
reauthorizing the USA PATRIOT Act. I write to seek your
support and to explain how the provisions of the conference
report retain the most important civil liberties and privacy
protections from the bill that passed the Senate and include
additional safeguards that emerged from the negotiations
between the House and Senate conferees. The conference report
retains the tools essential to law enforcement in fighting
international terrorism while significantly expanding
protections for civil liberties from the Act currently in
force.
Although the conference report contains many valuable
provisions, such as important protections for the nation's
seaports and mass transportation systems, as well as new
penalties to combat the growing problem with methamphetamine
abuse, I would like to focus on several of the more
contentious provisions of the PATRIOT Act itself.
section 215: business records
The most controversial provision of the PATRIOT Act has
been Section 215, the so-called ``library records''
provision. The conference report adds several safeguards to
prevent abuse of Section 215 that neither the Senate bill nor
the House bill contained. First, the conference report
requires a comprehensive audit by the Justice Department's
independent Inspector General of law enforcement use of
Section 215. Second, the conference report will permit, for
the first time, public reporting of the total number of 215
orders sought and granted. A third safeguard is the
conference report's provision that Section 215 orders may not
be used merely for threat assessments. This requirement
ensures that Section 215 will be used only during those
authorized investigations that have progressed somewhat
beyond the initial stages. A fourth new safeguard is that
every order under Section 215 will require minimization
procedures that curtail the retention and dissemination of
information concerning United States citizens.
The conference report also retains key provisions from the
Senate bill: (1) the requirement of a statement of facts to
accompany an application for an order under Section 215; (2)
the express vesting of discretion in the FISA judge to
review, and to reject, the FBI's application for a 215 order;
(3) the express right of recipients to consult legal counsel
and seek judicial review of 215 orders; (4) the requirement
of approval by the
[[Page S13443]]
FBI Director, Deputy Director, or Executive Assistant
Director for National Security before the government can seek
library records, medical records, or other sensitive
documents; (5) the enhanced reporting to Congress on the use
of Section 215, including specific information concerning
requests for the most sensitive documents; (6)
the requirement that 215 orders can compel the production
only of those tangible things that could be obtained under
a grand jury subpoena or other orders issued by federal
courts; and (7) the inclusion of a four-year sunset
provision to guarantee that Congress will revisit Section
215 at a later time.
The major difference between the Senate bill and the
conference report with respect to Section 215 is that the
conference report authorizes the FISA court in certain narrow
circumstances to issue a Section 215 order upon a showing of
relevance to an already authorized terrorism investigation
without a demonstration that the person's records being
requested is a known terrorist or acting on behalf of a
foreign power. The relevance standard will apply only in
extraordinary circumstances because the conference report is
set up so as to channel all applications for orders under
Section 215 into the three categories the Senate established
in its reauthorization bill. By establishing three
circumstances to demonstrate relevance when the government
shows a connection to a suspected terrorist or spy, the bill
ensures that requests falling outside the three categories
will be the exception and not the rule. Thus, the Senate
bill's three-part test remains a substantial safeguard in the
conference report.
Law enforcement will face an uphill battle in any effort to
obtain a 215 order that does not fall into one of the three
categories and thereby provides an incentive for the FBI to
use the tool only when it can show a connection to a
suspected terrorist or spy. This provision was deemed
necessary because the Department of Justice was able, in a
classified setting, to demonstrate that circumstances may
exist in which an individual may not be known to a foreign
power or be a recognized terrorist but may nevertheless be
crucial to an authorized terrorism investigation.
national security letters
The conference report also makes important changes to the
laws governing National Security Letters (NSLs), which the
FBI has used for several decades to request communications
records and financial information from third parties in
intelligence and terrorism cases. First and foremost, the
conference report makes explicit the right of NSL recipients
to ask a court to set aside the requirement to turn over
information as well as the requirement to keep the request
for information confidential. This is in stark contrast to
current law, which affords no such explicit right. Second, in
a protection analogous to one provided for Section 215, the
conference report requires the Justice Department's Inspector
General to audit the FBI's use of NSLs. Finally, the
conference report significantly enhances reporting to
Congress and requires an annual public report on the FBI's
use of NSLs. These reporting requirements enable both
Congress, and the public, to ensure that NSLs are not being
abused.
section 213: delayed-notice warrants
The conference report has retained the important
protections from the Senate bill's amendments to Section 213
of the PATRIOT Act, which authorizes warrants allowing the
government to wait a number of days after the search before
notifying the target. The conference report requires that a
target be notified within 30 days of the search, unless the
facts of the case justify a later date. Although this period
is longer than the 7-day time limit from the Senate bill, it
is considerably shorter than the 180 days permitted in the
House bill and is a significant improvement over the original
PATRIOT Act, which imposes no limits on the period of delay
beyond what is ``reasonable.'' And, like the Senate bill, the
conference report permits extensions of the delay period only
upon an updated showing of the need for further delay. As in
the Senate bill, these extensions are limited to 90 days,
unless the facts justify a longer delay. Finally, and again
like the Senate bill, the conference report requires public
reporting of all delayed notice warrants.
section 206: multipoint wiretap orders
Many, including myself, have discussed the need for changes
to Section 206 of the PATRIOT Act, which authorizes
multipoint or ``roving'' wiretap orders. I think the
conference report successfully meets that need. The ability
of the Justice Department to obtain multipoint wiretaps is in
part a result of changes in communications technology that
have made the use of cell phones ubiquitous. Terrorists have
taken advantage of those changes to cover their tracks by
using multiple phones.
Borrowing elements from both the House and Senate bills,
the conference report limits the use of roving wiretaps to
those cases in which the FBI includes in its application a
``specific'' description of the target and ``specific facts
in the application'' that show the target's actions may
thwart surveillance efforts. Further, the conference report
adopts the Senate bill's requirement that the FBI notify the
court within 10 days of moving its surveillance of a target
from one telephone number to another. As an additional
safeguard, the conference report requires that the FBI report
periodically to Congress on its use of the roving wiretap
authority. Finally, like the Senate bill, the conference
report includes a four-year sunset for Section 206 so that
Congress will revisit this provision in the near future. I
believe these important modifications will go far in
preventing abuse of this provision.
Much of the criticism has really involved complaints about
the current PATRIOT Act without understanding the
improvements in the conference report. Numerous hearings have
determined that the PATRIOT Act has not been subject to
abuse. But in order to promote public confidence, the
conference report includes significant changes that will
enhance oversight by the Congress, the judiciary and the
public at large. The conference report represents a balanced
compromise designed to maintain our ability to investigate--
and hopefully preempt--terrorist attacks, while ensuring that
the rights enshrined in our Constitution are not violated.
Very truly yours,
Arlen Specter.
Mr. SPECTER. The schedule which is currently anticipated is that the
House of Representatives will take up this bill and vote on Wednesday
and the Senate will take up a motion to proceed to vote on Wednesday.
There is talk of a filibuster. Whatever Senators choose to exercise
whatever rights they have, we will see, but I thought it would be
useful in talking to a number of colleagues today, the request was made
to see something in the Congressional Record which goes into some
detail in hitting the hot spots, but I add to my colleagues who may be
listening or staffers of my colleagues who may be listening or who may
read this in the Congressional Record which will be in print today, my
staff and I are ready, willing, and able to elaborate further on the
substance of the conference report. This report has been the subject of
negotiations between the House and Senate for weeks and has consumed
all of last week.
I thank the staffs on both the House and the Senate for
extraordinarily diligent work, working around the clock. This was a
full-time venture for me, personally, and other Members for the past
many days. We have moved ahead because this bill expires on December
31. For those who want to reargue it and relitigate it and reconsider
it, it will not get any better. If we go back to conference, were that
course to be followed, there are a lot of limitations in the wings that
could be added. With only that one provision about the conclusive
presumption having been an issue, and it having been in the Senate bill
which, again I repeat, we were misinformed about and the vast
improvements on the issues we have mentioned, it is a bill that ought
to be accepted so we can move on.
We have a very heavy schedule in the Judiciary Committee. When we
return in early January before the Senate goes into session, we have
the confirmation hearings of Judge Alito for the Supreme Court
scheduled on the 9th of January. We then have scheduled as the first
item of legislative business asbestos reform when we go back into
session on the 23rd. The first item of legislative business will be
available on January 24. Then we have the issue of immigration reform,
which is very high on the agenda. We have backing up the matter of
reporters' privilege or reporters' shield and a long list of items of
other confirmation proceedings to take up the time of the Judiciary
Committee.
I invite my colleagues' careful consideration, and I repeat the
availability of staff and myself personally to answer any questions or
make any elaborations.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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