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
power.
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
report;
(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
established.
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
says:
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
Forces.
(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
Resolution.
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
unilaterally.
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
governments.
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
prevail.
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
world.
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.'')
Torture
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
disclosures.
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
minutes.
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.
