Congressional Record: December 16, 2005 (Senate)
Page S13736-S13749                       

[[Page S13736]]
                            THE PATRIOT ACT

  Mrs. FEINSTEIN. Mr. President, I rise today as a 12-year member of 
the Senate Judiciary Committee and a 5-year member of the Senate 
Intelligence Committee. I do so indeed with a very heavy heart. I have 
had, until now, great confidence in America's intelligence activities. 
I have assured people time and time again that what happens at home has 
always been conducted in accordance with the law.
  I played a role in the PATRIOT Act. I moved one of the critical 
amendments having to do with the wall and the FISA court. Today's 
allegations as written in the New York Times really question whether 
this is in fact true. I read it with a heavy heart, yet without knowing 
the full story.
  Let me be clear. Domestic intelligence collection is governed by the 
Foreign Intelligence Surveillance Act, known as FISA. This law sets out 
a careful set of checks and balances that are designed to ensure that 
domestic intelligence collection is conducted in accordance with the 
Constitution, under the supervision of judges and with accountability 
to the Congress of the United States.
  Specifically, FISA allows the Government to wiretap phones or to open 
packages, but only with a showing to a special court--the FISA court--
and after meeting a legal standard that requires that the effort is 
based on probable cause to believe the target is an agent of a foreign 
  Let me cite two sources. The first is a 1978 report by the Senate 
Select Committee on Intelligence. In the report is a comment by the 
then-chairman of that committee, Senator Birch Bayh. He is talking 
about the FISA bill that had just come to the floor in 1978:

       The bill requires a court order for electronic 
     surveillance, defined therein, conducted for foreign 
     intelligence purposes within the United States or targeted 
     against the international communications of particular United 
     States persons who are in the United States. The bill 
     establishes the exclusive means by which such surveillance 
     may be conducted.

  That is the bill, FISA, which was passed in 1978.
  Second, in late 2001 this subject came up again on the Senate 
Intelligence Committee. The Senate Intelligence Committee discussed 
this subject and amended at that time in its authorization bill 
National Security Act section 502, which is the reporting of 
intelligence activities other than covert action.
  Section 502 states:

       To the extent consistent with due regard for the protection 
     from unauthorized disclosure of classified information 
     relating to sensitive intelligence sources and methods or 
     other exceptionally sensitive matters, the Director of 
     Central Intelligence and the heads of all departments, 
     agencies, and other entities of the United States Government 
     involved in intelligence activities shall:
       (1) keep the congressional intelligence committees--

  It doesn't say only the chairman and the vice chairman--

     fully and currently informed of all intelligence activities 
     other than a covert action (as defined in section 503(e)), 
     which are not the responsibility of, are engaged in by, or 
     are carried out for or on behalf of any department, agency, 
     or entity of the United States Government, including any 
     significant anticipated intelligence activity and any 
     significant intelligence failure.
       And (2) furnish the congressional intelligence committees 
     any information or material concerning intelligence 
     activities, other than covert actions, which is within their 
     custody or control, and which is requested by either of the 
     congressional intelligence committees in order to carry out 
     its authorized responsibilities.

  At that time, we had this discussion about just the chairman and the 
vice chairman receiving certain information, and this act was amended, 
and section (b) was added to the National Security Act, called ``form 
and contents of certain reports.'' It was to clarify what the form and 
content of the reporting to the committee would be. And the wording is 
as follows:

       Any report relating to a significant anticipated 
     intelligence activity or a significant intelligence failure 
     that is submitted to the congressional intelligence 
     committees for the purposes of subsection (a)(1) shall be in 
     writing and shall contain the following:
       (1) a concise statement of any fact pertinent to such 
       (2) an explanation of the significance of the intelligence 
     activity or intelligence failure covered by such report.

  And then section (c) was added, ``standards and procedures for 
certain reports,'' that those standards and procedures would hereby be 
  What has happened is that it has become increasingly used just to 
notify a very few people. There are 535 Members of the Senate and the 
House of Representatives of the United States.
  If the President of the United States is not going to follow the law 
and he simply alerts eight Members, that doesn't mean he doesn't 
violate a law. I repeat, that doesn't mean he doesn't violate a law. 
FISA is the exclusive law in this area, unless there is something I 
missed, and please, someone, if there is, bring it to my attention.
  Section 105(f) of FISA allows for emergency applications where time 
is of the essence. But even in these cases, a judge makes the final 
decision as to whether someone inside the United States of America, a 
citizen or a noncitizen, is going to have their communications 
wiretapped or intercepted. The New York Times reports that in 2004, 
over 1,700 warrants for this kind of wiretapping activity were approved 
by the FISA Court. The fact of the matter is, FISA can grant emergency 
approval for wiretaps within hours and even minutes, if necessary.
  In times of war, FISA section 111 states this:

       Notwithstanding any other law, the President, through the 
     Attorney General, may authorize electronic surveillance 
     without a court order under this title to acquire foreign 
     intelligence information for a period not to exceed 15 
     calendar days following a declaration of war by the Congress.

  I would argue the resolution authorizing use of force was not a 
declaration of war. I read it this morning carefully. It does not 
authorize the President of the United States to do anything other than 
use force. It doesn't say he can wiretap people in the United States of 
America. And apparently, perhaps with some change, but apparently this 
activity has been going on unbeknownst to most of us in this body and 
in the other body now since 2002.
  The newspaper, the New York Times, states that the President 
unilaterally decided to ignore this law and ordered subordinates to 
monitor communications outside of this legal authority.
  In the absence of authority under FISA, Americans up till this point 
have been confident--and we have assured them--that such surveillance 
was prohibited.
  This is made explicit in chapter 119 of title 18 of the criminal code 
which makes it a crime for any person without authorization to 
intentionally intercept any wire, oral, or electronic communication.
  As a member of the Senate Judiciary and Intelligence Committees, I 
have been repeatedly assured by this administration that their efforts 
to combat terrorism were being conducted within the law, specifically 
within the parameters of the Foreign Intelligence Surveillance Act 
which, as I have just read, makes no exception other than 15 days 
following a declaration of war.
  We have changed aspects of that law at the request of the 
administration in the USA PATRIOT Act to allow for a more aggressive 
but still lawful defense against terror. So there have been amendments. 
But if this article is accurate, it calls into question the integrity 
and credibility of our Nation's commitment to the rule of law.
  I refreshed myself this morning on the fourth amendment to the Bill 
of Rights of the Constitution of the United States. Here is what it 

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable search and 
     seizures, shall not be violated, and no Warrants shall issue, 
     but upon probable cause, supported by Oath or affirmation, 
     and particularly describing the place to be searched, and the 
     persons or things to be seized.

  Clearly an intercept, a wiretap, is a search. It is a common 
interpretation. A wiretap is a search. You are looking for something. 
It is a search. It falls under the fourth amendment.
  Again, the New York Times states that a small number of Senators, as 
I said, were informed of this decision by the President. That doesn't 
diminish the import of this issue, and that certainly doesn't mean that 
the action was within the law or legal.
  What is concerning me, as a member of the Intelligence Committee, is 
if eight people, rather than 535 people, can know there is going to be 
an illegal act and they were told this under an intelligence umbrella--
and therefore, their lips are sealed--does that make the act any less 
culpable? I don't think so.

[[Page S13737]]

  The resolution passed after September 11 gave the President specific 
authority to use force, including powers to prevent further terrorist 
acts in the form of force. I would like to read it. I read Public Law 
107-40, 107th Congress:

       Sec. 1. Short title.
       This joint resolution may be cited as the ``Authorization 
     for Use of Military Force''.
       Sec. 2. Authorization for Use of United States Armed 
       (A) In General.--That the President is authorized to use 
     all necessary and appropriate force against those nations, 
     organizations, or persons he determines planned, authorized, 
     committed, or aided the terrorist attacks that occurred on 
     September 11, 2001, or harbored such organizations or 
     persons, in order to prevent any future acts of international 
     terrorism against the United States by such nations, 
     organizations, or persons.

  Then it goes on to say:

       Consistent with section 8(a)(1) of the War Powers 
     Resolution, the Congress declares that this section is 
     intended to constitute specific statutory authorization 
     within the meaning of section 5(b) of the War Powers 

  This is use of force. It is not use of wiretapping or electronic 
surveillance of American citizens or those without citizenship within 
the confines of the United States. That is the jurisdiction of the FISA 
Court. There is a procedure, and it is timely.
  As a matter of fact, we got into this rather seriously in the 
Judiciary Committee. At the time we wrote the PATRIOT Act, I offered an 
amendment to change what is called ``the wall'' between domestic 
intelligence-gathering agencies and foreign intelligence-gathering 
agencies from a ``primary purpose'' for the collection of foreign 
intelligence to a ``significant purpose.'' We had a major discussion in 
the committee, as is the American way. We were making public policy. We 
discussed what primary purpose meant. We discussed in legal terms what 
significant purpose meant.
  So this was a conscious loosening of a standard in the FISA law to 
permit the communication of one element of Government with the other 
and transfer foreign intelligence information from one element of the 
Government to the other.
  That is the way this is done, by law. We are a government of law. The 
Congress was never asked to give the President the kind of unilateral 
authority that appears to have been exercised.
  Mr. BYRD. Right.
  Mrs. FEINSTEIN. I was heartened when Senator Specter also said that 
he believed that if the New York Times report is true--and the fact 
that they have withheld the story for a year leads me to believe it is 
true, and I have heard no denunciation of it by the administration--
then it is inappropriate, it is a violation of the law.
  How can I go out, how can any Member of this body go out, and say 
that under the PATRIOT Act we protect the rights of American citizens 
if, in fact, the President is not going to be bound by the law, which 
is the FISA court?
  And there are no exceptions to the FISA court.
  So Senator Specter, this morning, as the chairman of the Judiciary 
Committee, announced that he would hold hearings on this matter the 
first thing next year. I truly believe this is the most significant 
thing I have heard in my 12 years. I am so proud of this Government 
because we are governed by the rule of law, and so few countries can 
really claim that. I am so proud that nobody can be picked up in the 
middle of the night and thrown into jail without due process, and that 
they have due process. That is what makes us different. That is why our 
Government is so special, and that is why this Constitution is so 
special. That is why the fourth amendment was added to the Bill of 
Rights--to state clearly that searches and seizures must be carried out 
under the parameter of law, not on the direction of a President 
  So I believe the door has been opened to a very major investigation 
and set of circumstances. I think people who know me in this body know 
I am not led toward hyperbole, but I cannot stress what happened when I 
read this story. And everything I hold dear about this country, 
everything I pledge my allegiance to in that flag, is this kind of 
protection as provided by the Constitution of the United States and the 
laws we labor to discuss, argue, debate, enact, then pressure the other 
body to pass, and then urge the President to sign. That is our process.
  If the President wanted this authority, he should have come to the 
Intelligence Committee for an amendment to FISA, and he did not. The 
fact that this has been going on since 2002--it is now the end of 2005. 
Maybe 8 people in these 2 bodies in some way, shape, or form may have 
known something about it, but the rest of us on the Intelligence 
Committees did not.
  That is simply unacceptable.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I thank the Senator from California for 
her remarks and associate myself with them. I commend her for taking on 
this vital issue affecting all Americans.
  I ask unanimous consent that the previous order be modified to permit 
Senator Byrd to precede me in speaking order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank the very distinguished Senator from 
Minnesota for his kindness and his courtesy in yielding to me. I want 
to say there is one thing I am sorry about with respect to the Senator 
from Minnesota. He made a bad decision some time ago. I wish he had not 
made it, and I begged him to retract on it and say he would not do it. 
He says he is not going to run again. I am sorry about that. He is one 
of the immortal 23 Senators who voted against that resolution that the 
Senator from California is talking about. I voted against it. I have 
been in the Senate for 47 years, and that is the vote of which I am 
most proud because in voting that way, I stood for this, the 
Constitution of the United States. That Constitution does not give any 
President the power to declare war. It says Congress shall have the 
power to declare war. I voted against that resolution, the best vote I 
have cast in 47 years in this Senate, and I am proud that the Senator 
from Minnesota can carry that tribute with him to the grave. I thank 
him and congratulate him. Again, I thank him for yielding to me.
  Mr. President, I believe in America. Let me say that again. I believe 
in America. I believe in the dream of the Founders and Framers of our 
inspiring Constitution. I believe in the spirit that drove President 
Abraham Lincoln to risk all to preserve the Union. I believe in what 
President Kennedy challenged America to be--America, the great 
experiment of democracy.
  Where the strong are also just and the weak can feel secure, the soul 
and promise of America stands as a beacon, praise God, of freedom and a 
protector of liberty which lights and energizes the people around the 
world. Today, sadly, that beacon is dimmed. This administration's 
America is becoming a place where the strong are arrogant and the weak 
are ignored. Fie on the administration.
  Yes, we hear high-flung language from the White House about bringing 
democracy to a land where democracy has never been. We seem mesmerized 
with glorious rhetoric about justice and liberty, but does the rhetoric 
really match the reality of what our country has become?
  Since the heinous attacks of September 11, I speak of the actions of 
our own Government, actions that have undermined the credibility of 
this great Nation around the world. These actions taken one at a time 
may seem justified, but taken as a whole they form an unsettling 
picture and tell a troubling story. Do we remember the abuses at Abu 
Ghraib? They were explained as an aberration. Do we remember the abuses 
at Guantanamo Bay? They were denied as an exaggeration. Now we read 
about this so-called policy of rendition--what a shame--a policy where 
the U.S. taxpayers are funding secret prisons in foreign lands. What a 
word, ``rendition.'' What a word, ``rendition.'' Shame. It sounds so 
vague, almost harmless. But the practice of rendition is abhorrent.

  Let me say that again. It sounds so vague, almost harmless, but the 
practice of rendition is abhorrent--abhorrent.
  The administration's practice of rendition is an affront, an affront 
to the principles of freedom, the very opposite of principles we claim 
we are trying to

[[Page S13738]]

transplant to Iraq and to other rogue nations.
  The administration claims that rendition is a valuable weapon in the 
war on terror. But what is the value of having America's CIA sit as 
judge and jury while deciding just who might be a threat to our 
national security? Such determinations receive no review by a court of 
law--none. The CIA simply swings into action, abducts a person from 
some foreign country and flies them off to who knows where, with no 
judicial review of guilt or innocence. A person can be held in secret 
prisons in unnamed countries or even shipped off to yet another country 
to face torture at the hands of the secret police of brutal 
  Is that what we want? Is this the America that our Founders 
conceived? Is this the America that Nathan Hale died for, when he said 
I only regret that I have but one life to lose for my country? Is this 
the America that he died for? Is this the America that our Founders 
conceived? Is this the America of which millions of people dreamed? Is 
this, I ask the Senate, the beacon of freedom inspiring other nations 
to follow?
  The United States should state clearly and without question that we 
will not torture prisoners and that we will abide by the treaties that 
we signed, because to fail to do so is to lose the very humanity, the 
morality that makes America different, that makes America the hope for 
individual liberty around the world.
  The disgusting, degrading, and damaging practice of rendition should 
cease immediately. Is this what Patrick Henry was talking about--give 
me liberty or give me death? It is not about who they are. ``It's not 
about who they are. It's about who we are.'' Those are the words of my 
colleague Senator John McCain, bless his heart. Senator McCain is a 
senior member of the Senate Armed Services Committee. He is a former 
prisoner of war. He knows what it is all about. And he is exactly 
right. There is no moral high ground in torture. There is no moral high 
ground in the inhumane treatment of prisoners. Our misguided, thuggish 
practice of rendition has put a major blot on American foreign policy.
  Now comes this similarly alarming effort to reauthorize the PATRIOT 
Act, retaining provisions that devastate many of our own citizens' 
civil liberties here at home. What is happening? What is happening to 
our cherished America? Let us stop and look and listen and think. What 
is happening to our cherished America?
  Any question raised about the wisdom of shredding constitutional 
protections of civil liberties with roots that trail back centuries is 
met with the disclaimer that the world has changed and that the 9/11 
attacks are, in effect, a green light. Get that, a green light to trash 
this Constitution, to seize private library records. Hear that.
  Suppose I want to get a book out of the library. Suppose I want to 
read ``Loves Labors Lost.'' The disclaimer that the world has changed 
and that the 9/11 attacks are in effect a green light to trash the 
Constitution, to seize private library records--suppose I want to read 
about ``A Tale of Two Cities.'' They are going to seize those library 
records? To search private property--how about that--without the 
knowledge of the owner? If you want to go in my house without my 
knowledge, without my wife's knowledge, to spy on ordinary citizens 
accused of no crime in a manner is a sick--a sick, s-i-c-k, perversion 
of our system of justice and it must not be allowed.
  Paranoia must not be allowed to chip away at our civil liberties. 
Don't let it happen. The United States of America must not adopt the 
thuggish tactics of our enemies--no. We must not trash the fourth 
amendment because the Senate is being stampeded at the end of a 
congressional session. No.
  Government fishing expeditions with search warrants written by FBI 
agents is not what the Framers had in mind. It is not what Benjamin 
Franklin had in mind. It is not what Morris had in mind. It is not what 
James Wilson had in mind. Spying on ordinary, unsuspecting citizens--
not with that in mind. Without their knowledge? No. That is not what 
the Framers had in mind. Handing the Government unilateral authority to 
keep all evidence secret from a target so that it may never be 
challenged in a court of law is not what the Framers had in mind.
  Yesterday, I believe it was, we heard reports that the military has 
spied on Americans simply because they exercised their right to 
peaceably assemble and to speak their minds. What disgrace. What a 
shame. Today we hear, yes, we hear today that the military is tapping 
phone lines in our own country without the consent of a judge. Can you 
believe that? Here in this country, where liberty is supposed to 
  Go and ask that Statue of Liberty. Is that what it stands for?
  No. Labeling civil disobedience and political dissent as domestic 
terrorism is not what the Framers had in mind.
  Read history. What is the matter with us? Have we gone berserk? Read 
history. That is not what they had in mind.
  Our Nation is the most powerful nation in the world. Why? Because our 
Nation was founded on a principle of liberty. Benjamin Franklin said 
``those who would give up essential Liberty, to purchase a little 
temporary Safety, deserve neither Liberty nor Safety.'' Our Founding 
Fathers, intent on addressing the abuses they had suffered at the hands 
of an overzealous government, established--yes, it did--established a 
system of checks and balances, ensuring that there is a separation of 
powers--there is a separation of powers. Read it in the Constitution, 
article I, article II, article III--a separation of powers so that no 
one body may run amok with its agenda. These checks are what safeguards 
freedom for you, Mr. President, and for me and for all others in this 
land. These checks are what safeguard freedom, and the American people 
are looking to us--yes, they are looking through those lenses there, 
they are looking at us, yes. The people out on the broad prairies, out 
on the plains, out in the valleys, out on the great shores, the frozen 
wastes of the North Pole, and, yes, that liberty extends everywhere. 
That American liberty extends everywhere. And nobody may run amok with 
its agenda.
  These checks are what safeguard freedom, and the American people are 
looking to us--you, and me, Senator, you, Senator, and you, Mr. 
President--looking to us now to restore and protect that freedom.
  So many have died protecting those freedoms. And we owe it to those 
brave men and women to deliberate meaningfully and to ultimately 
protect those freedoms that Americans cherish so deeply. The American 
people deserve nothing less.
  Earlier today, the Senate voted to stop a bill that would have 
allowed the abuses of American civil liberties to continue for another 
4 years. Shame. The message of this vote is not just about the PATRIOT 
Act but the message that the Senate can stand up, the Senate can stand 
against an overreaching Executive of any party, any party, any party 
that has sacrificed our liberties and stained our standing before the 
  The PATRIOT Act has gone too far. It has gone too far. Secret 
renditions should be stopped. Torture must be outlawed. Our military 
should not spy on our own people.
  The Senate has spoken. Let us secure our country but not by 
destroying our liberties.
  Thank Almighty God for this Constitution and the Framers who wrote 
it, and the Founders of our Nation who risked their lives and their 
fortunes and their sacred honor. Thank God for checks and balances. 
Thank God for the Senate, and may it always stand for the right.
  I thank all Senators. I again thank the distinguished Senator from 
Minnesota. I want to tell him that I wish he and his family and loved 
ones a merry Christmas, a merry Christmas. I thank him.
  The PRESIDING OFFICER (Mr. Burr). Under the previous order, the 
Senator from Minnesota is recognized.
  Mr. McCAIN. Mr. President, parliamentary inquiry: What is the order?
  The PRESIDING OFFICER. The Senator is notified that there is no order 
after the Senator from Minnesota.
  Mr. McCAIN. I ask my friend to indulge me. I ask unanimous consent I 
follow the Senator from Minnesota.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. McCAIN. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.

[[Page S13739]]

  Mr. DAYTON. Mr. President, I want to associate myself with the 
remarks made by the great Senator from West Virginia, and he is a great 
Senator. His 47 years of experience here and wisdom have made him an 
invaluable Member of this body, a leader of this body, an invaluable 
mentor to newcomers such as myself, and his fidelity to the 
Constitution, his understanding of history, his understanding of the 
appropriate relationship of this body, as an independent branch of 
Government, with the executive branch has been patriotic, courageous, 
and right.
  I thank him for his remarks and for his kind words.
  I also want to share the outrage that he expressed, and the previous 
speaker, the distinguished Senator from California expressed, about 
these disclosures. Yet another one today, reading in the New York Times 
about the secret spying on American citizens by the National Security 
Agency, in contravention of law and in contravention of previous policy 
under Presidents, Republican and Democrat.
  That, on top of the revelations about secret torture camps being 
conducted, again extra-illegally, by this administration, to the 
detriment of the great name of the United States of America.
  I see that the outstanding Senator from Arizona is on the floor and 
will follow me with his remarks. To his enormous credit, he has been 
the champion of putting the United States back on track and assuring 
that we set the example, the proper example, for the rest of the world 
in how to conduct itself even under adverse circumstances.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Arizona is recognized.
  (The remarks of Mr. McCain, Mr. Lieberman and Mr. Durbin pertaining 
to the introduction of S. 2128 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')


  Mr. DURBIN. Mr. President, I salute Senator John McCain. He achieved 
something this week which is historic. He achieved an agreement with 
the Bush administration on the issue of torture. That took a lot of 
hard work on his part. He took a 90-9 vote in the Senate with him to 
the White House, meeting with the President's representatives.
  What Senator McCain was seeking is something fundamental. He wanted 
to reaffirm in law the fact that the United States would still stand by 
its word and by its values, that we would not engage in torture even 
though we are in this new age of terrorism and threat to America. He 
said: This is less about the enemy than it is about us, who we are and 
what we stand for.
  I can recall during the debate on this issue, Senator McCain took the 
floor and gave one of the best speeches I have heard in this Chamber, a 
speech only he could give. As a former prisoner of war, a Navy pilot 
shot down over Vietnam, he was a victim of torture. No one else in this 
Chamber, fortunately, can speak to it as he spoke to it. But in 
speaking to it, he reminded us that torture is not American. It is not 
a good means of interrogating prisoners or coming up with information 
to make America safer. There was a lengthy debate about whether his 
provision would be included in the final legislation. Fortunately, the 
White House has agreed to include it.
  I was happy to cosponsor that legislation. I have been raising this 
issue for the last several years. I know how controversial it can be. A 
few months ago I had the spotlight focused on me for some comments made 
at this same desk. But I believe that the issue of torture is one that 
we have to face forthrightly.
  Last week I was traveling in northern Africa and visited with one of 
our ambassadors. He is an ambassador to one of the Muslim nations. We 
talked about the challenges he faces with our involvement in Iraq. He 
said: The controversy about our involvement in Iraq paled in comparison 
to the controversy in his country about America's role when it came to 
torture. He said: It is hard for the Muslim population and Arab 
populations to understand why the United States would abandon a long-
term, multidecade commitment not to engage in torture once they were 
involved in a war involving Arabs and Muslims. He reminded me--and I 
didn't need to be reminded--that we issue a human rights scorecard each 
year from the Department of State. Some of the questions we ask of 
countries around the world are: have you incarcerated someone without 
charges? Are you holding them indefinitely? Are you torturing them? If 
the answers are affirmative, we give them low marks.
  Today, obviously, those countries are asking whether the Americans 
live by the same standards they are imposing on others. John McCain's 
leadership, along with Senator John Warner, chairman of the Armed 
Services Committee, resulted in an important agreement to restate the 
most basic and bedrock principle, that America will not engage in 
torture. We will not engage in cruel, inhuman, and degrading treatment 
of prisoners: First, because it is not American; second, because it 
invites the same treatment on our soldiers and Americans; and third, 
because it doesn't work. We have found time and again, if you torture a 
person they will say anything to make the torture stop. That doesn't 
give you good information to make America safe. Let me salute Senator 
McCain for his leadership.

                       Eavesdropping on Americans

  Mr. President, I am troubled by the reports in the New York Times and 
Washington Post today that this administration, since 9/11, has been 
engaged in a practice which I thought had been clearly prohibited in 
America. That is the eavesdropping on individual American citizens, 
those in America, by major agencies such as the National Security 
Agency. This all started some 30 years ago during President Nixon's 
administration. It was an administration which created an enemies list. 
If your name was on that list, be careful; J. Edgar Hoover would be 
looking into every aspect of your life that he could. You might be 
audited by the Internal Revenue Service and you would be carefully 
watched and monitored.
  We decided that wasn't a good thing for any President to do. We made 
it clear that if you had good reason to eavesdrop on an American in the 
commission of a crime, involvement in terrorist activity, that was one 
thing. But to say you could do it with impunity, without any legal 
approval, that was unacceptable.
  Now we find it has been done for several years and several thousand 
Americans have been the subject of this wiretapping and eavesdropping.
  Mr. President, that is a troubling development. It says that this 
administration has decided when it comes to basic rights of Americans, 
they are above the law, not accountable; they don't have to go through 
the courts, don't have to follow the ordinary judicial process. That is 
something that Congress has to stand up and fight. We have to make it 
clear that even in the age of terrorism, basic freedoms and liberties 
of Americans have to be respected.
  I hope that as soon as we return from this holiday break the 
appropriate committees will initiate investigations, determine what has 
occurred, whether it has gone too far. I sincerely hope, on a 
bipartisan basis, that my colleagues will rally to once again assert 
the fundamentals when it comes to the right of privacy in America. We 
want to be safe in America but not at the cost of our freedom. That, 
unfortunately, has become an issue because of these most recent 
  Mr. SESSIONS. Mr. President, I remain baffled by the failure today to 
move forward with the PATRIOT Act. That piece of legislation is 
exceedingly important. We know for an absolute fact, as Senator Kyl and 
others have pointed out, that terrorist organizations and their 
movements and activities were not properly discovered by law 
enforcement because of a failure to share information and other 
restrictions that fell on those investigators. That has been 
demonstrated with clarity. In fact, some say had we not had the wall 
between the CIA and the FBI and they could actually have shared 
information, we may have even prevented 9/11.
  I say this to my friends in this country. Federal agents follow the 
law. The law said the CIA, which is out dealing with international 
terrorist groups and others who want to harm the United States, and the 
FBI, which is given the responsibility of homeland protection and crime 
enforcement in this country,

[[Page S13740]]

were not allowed to share information. And they did not do so. It was 
part of a governmental reform. I think the Frank Church committee 
thought they were doing something good, but they ended up creating a 
wall that prohibited the sharing of information that made it far more 
difficult for Federal investigators to do the job we pay them to do.

  This afternoon, I saw a lady from New York who was touched by 9/11. 
She wants this bill passed. As a matter of fact, she was shocked that 
it was not. Why is she shocked? It just passed this Senate a few days 
ago 100 to 0, by unanimous consent, not a rollcall vote, but unanimous 
consent, without an objection. It came out of the Senate Judiciary 
Committee, 18 to 0. We have a host of libertarians on that committee--
civil libertarians and libertarians. Chairman Specter is very proud of 
his heritage of civil liberties. All of us take it seriously in that 
committee, and it came out unanimously.
  The bill went to the House, and they passed this very bill that we 
just blocked. The House passed it with a 75-vote majority even though, 
in fact, the House had to recede and give about 80 percent of the 
differences in the House and Senate bill over to the Senate side. The 
Senate bill was clearly the bill that was the model for the legislation 
on which we finally voted.
  So we go over to the House. They have some provisions and we have 
some provisions and there is a good bit of discussion over the issues. 
Finally, a conference report is agreed to. It comes back over here, and 
all of a sudden we face a filibuster.
  The PATRIOT Act will sunset December 31. It will be gone. We will not 
have the provisions that are in it. Those provisions have played a big 
role in helping us protect this country from another attack. Who would 
have thought we would have gone over 4 years since 9/11 without another 
attack on this homeland? I hope no one thinks that success to date--
praise our Creator--has not been driven in large part by effective law 
enforcement activities by the FBI, the CIA, and other agencies that are 
charged with these responsibilities.
  The compromises reached in the conference committee to work out the 
differences between the House and Senate bill, according to Chairman 
Arlen Specter, tilted in favor of the Senate on the disputed provisions 
by about 80 percent. He said there is not a dime's worth of difference 
in terms of whether civil liberties were enhanced or not enhanced in 
the bill that we just voted on and the one that came out of committee 
18 to 0 and passed the Senate unanimously.
  So why would this Senate and the great Democratic Party, except for 
two of its members, vote to block us from an up-or- down vote on this? 
I don't understand. I think it is a serious matter.
  There are provisions in the bill that are important. As I have tried 
to state, as a Federal prosecutor for 15 years nearly, I remain baffled 
by the concerns over the bill. I remain baffled because of the fact 
that every provision in the bill has already been a part of Federal law 
at some point in time and had never been overruled or found 
unconstitutional. But many of the law enforcement capabilities that the 
bill delineates and makes clear and actually creates frameworks for 
already exist in current law.
  I knew from the beginning that there was nothing in the bill that was 
going to be held to be unconstitutional and, indeed, it has not because 
it was written in such a way that we would not violate the 
Constitution, and it would be within the principles of our commitment 
to civil liberties.
  All of us are committed to civil liberties. One of our Senators, Mr. 
Byrd, said we don't need search warrants written by FBI agents. 
Absolutely we don't. We don't want an investigator being able to 
conduct a search of somebody without an independent order of a judge, 
and there is nothing in this bill that does that. We don't change the 
great protection that you have to have a court-approved search warrant, 
for heaven's sake. There is nothing in this bill that comes close to 
that. But these are the kinds of charges that have been made, upsetting 
people and making them think there is something strange or overreaching 
about this legislation. It passed with only one negative vote 4 years 
ago, 90-something to 1.
  We need to get our act together on this bill. I urge my colleagues to 
read the legislation that Senator Specter has so carefully written so 
that anybody can understand what the complaints are, to consider what 
the Department of Justice has said, to listen to the debate, and 
actually read the legislation. I am convinced that if colleagues would 
take a moment to do so, they will find that all of our great liberties 
are protected and, in fact, we didn't give to FBI terrorist 
investigators the same powers an IRS investigator has this very day to 
subpoena bank records that relate to a person who may not have paid 
their income tax. IRS agents can do that on a daily basis.
  I see my colleague. Maybe I have already utilized over 10 minutes. If 
I have, I will be pleased to wrap up and yield the floor. I am over 10 

  I feel strongly about this mainly because I am so concerned that 
people have allowed this vote to become a vote on whether one believes 
in civil liberties or whether one believes in law enforcement.
  The bill was written and came out of committee--Senator Leahy 
approved it; he monitored its passage from the beginning--so as not to 
violate the Constitution, not to undermine our liberties, but to make 
sure that Federal investigators who are trying to keep another 9/11 
from happening here have the same powers as IRS agents. And, indeed, we 
didn't even give them that much power, in many instances. They still 
have less in some instances.
  We need to get our act together on this legislation. We need to move 
this bill. I don't think it needs to be any weaker. If we come back and 
water it down and pass it, it would be a mistake.
  I thank the Chair, and I yield the floor.