Congressional Record: February 15, 2006 (Senate)
Page S1325-S1344
USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006--MOTION
TO PROCEED
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 2271, which the
clerk will report.
The assistant legislative clerk read as follows:
Motion to proceed to consider S. 2271, a bill to clarify
that individuals who receive FISA orders can challenge
nondisclosure requirements, that individuals who receive
national security letters are not required to disclose the
name of their attorney, that libraries are not wire or
electronic communication service providers unless they
provide specific services, and for other purposes.
The PRESIDING OFFICER. Who seeks time?
The Senator from New Hampshire.
Mr. SUNUNU. Mr. President, I rise today to speak in support of the
motion to proceed and in support of the underlying legislation itself.
This bill was introduced to make changes, changes to the PATRIOT Act
conference report that was delayed at the end of last year, just as we
were ready to adjourn for the holidays.
That conference report had some flaws and weaknesses. I began
focusing on and working on reauthorization of the PATRIOT Act well over
a year and a half ago, recognizing that we could do more to improve the
original Act, we could make this bill more balanced by adding better
protections for civil liberties even as we reauthorized the law
enforcement tools in the PATRIOT Act to give law enforcement power to
conduct terrorism investigations.
I don't think there is anyone in this Chamber who believes we should
not provide law enforcement with tools necessary to deal with the
threat of terrorism, both domestically and overseas. But whenever we
give law enforcement new tools, new powers, we want to make sure they
are balanced, balanced by the ability of individuals who think they
have been singled out unfairly to raise objections in court, balanced
by the ability of individuals to seek legal advice, balanced by
restricting the use of these tools to ensure they are only used in
appropriate circumstances. That is what protecting civil liberties is
all about.
As the process of reauthorizing the PATRIOT Act began well over a
year and a half ago, a bipartisan group of Senators, including myself,
joined to highlight a number of areas where we felt the legislation
could and should be improved and strengthened to provide the kinds of
protections I mentioned.
We spoke with Justice Department officials, not a month or 2 months
before this process began, but, as I've said, over a year and a half
ago, raising our concerns in a clear, articulate fashion, trying to
make certain that DOJ knew full well that there was a bipartisan group
that would push to make changes to improve the PATRIOT Act and that we
would be willing to stand up for those changes and stand up on
principle.
Unfortunately, the people who should have been engaged in this
discussion process early on simply were not and much of the work was
left to the very end of the process, and continued after the law was
originally set to expire at the end of last year. As a result, changes
that should have been made early were not, and we found ourselves
[[Page S1326]]
with reauthorization legislation that could not win enough bipartisan
votes to gain passage at the end of December.
What I wish to do today is to talk about the changes that were made
to the PATRIOT Act earlier in the reauthorization process that better
safeguard civil liberties, and the changes that are in this underlying
legislation that I think will allow us to move forward with some
confidence that we have made additional improvements since the cloture
vote in December.
In the conference report that was delayed, I certainly agree that
there were many significant improvements made to the original PATRIOT
Act. For example, improvements were made to add clarity to a roving
wiretap order to require more specificity as to the target or location
of the surveillance to be conducted. Improvement was made to add
clarity to delayed notification search warrants, which are search
warrants that are conducted without immediately telling the targets of
the search.
I think delayed notice search warrants are appropriate tools for law
enforcement, but at a certain point law enforcement either needs to
inform the target of the search or get agreement from a judge to
further delay the notification. In the delayed conference report we
added clarity. We added a requirement that a target must be notified of
a search within 30 days unless a judge agrees to continue delaying the
notification.
We were successful when we took a stand at the end of last year in
moving the sunset period in the draft conference report from a 7-year
sunset on the most controversial provisions of the PATRIOT Act to a 4-
year sunset period, so that 215 subpoena power, a very significant
subpoena power for law enforcement to access the most sensitive of
records, the lone wolf provisions and the roving wiretap provisions I
mentioned, would have to be reviewed four years from now.
All of these were improvements to the PATRIOT Act. But a number of us
still had many concerns, concerns in three particular areas.
First, our most significant concern was and is the breadth of the
standard for obtaining a 215 subpoena. We felt--and we still feel--it
is unnecessarily broad. It could result in the gathering of information
that is not only extraneous, but pertains to innocent Americans. We
think that standard should be more narrow so that there be shown that
an individual who is a target of this subpoena be connected to a
suspected terrorist or suspected spy. The current standard of mere
relevance to a terrorist investigations is unnecessarily broad.
Second, we feel there should be a clear judicial review, a review
before a judge, of the gag order associated with the 215 subpoena. If
you are the recipient of one of these subpoenas, that subpoena comes
with a restriction on your ability to tell anyone about the subpoena.
But you ought to be able to challenge that gag order before a judge.
Third, we feel the provision in the conference report that required
the recipient of a national security letter to disclose the name of
their attorney to the FBI was punitive and might have the result of
discouraging an individual from seeking legal advice. Over the last 6
weeks, I have worked with a number of my colleagues, Democrats and
Republicans, on changes to the PATRIOT Act, negotiating with the
Justice Department, making Members of the House aware of what we were
pursuing, working with Chairman Arlen Specter, who has been very
helpful throughout this whole process. Senator Leahy, Senator Durbin,
Senator Feingold have all been part of these discussions and I have
worked to share with them the concepts we were working on, the language
we were working on in the areas where there were still differences,
differences between those who wanted to pass the conference report as
it was and those of us who felt we could strike a better balance.
In the end, we have worked out an agreement on language that has
received bipartisan support and makes changes to the conference report
in three areas.
First, we add a clear, explicit judicial review process for the 215
subpoena gag order. It is a judicial review process that is very
similar to the judicial review process for the National Security Letter
gag order set forth in the conference report. I think it is important
that we stand for the principle that a restriction on free speech such
as a gag order can be objected to in a court of law before a judge. You
can at least have your case heard. That does not mean you will win,
necessarily, but you can at least have your case heard.
Second, we were able to get language striking the requirement that
the recipient of a National Security Letter disclose the name of their
attorney to the FBI. Again this is a punitive provision, and it could
have the unintended effect of discouraging people from seeking legal
advice.
Third, we added clarification to National Security Letters as they
pertain to libraries. Our agreement adds a provision that makes very
clear that libraries operating in their traditional role, including the
lending of books, including making books available in digital form,
including providing basic Internet access, are not subject to National
Security Letters.
These are three areas that were highlighted as being of concern at
the end of last year. I did--and I think the others would agree--we all
did everything possible to stay focused on these areas of concern. We
made improvements in each of these three areas. I think we ought to be
able to move forward now with the reauthorization, knowing full well
that in an effort such as this, no party ever gets everything they
want. But having shown that there is a bipartisan group of Members of
the Senate and I believe Members of the House as well who will look
carefully at these measures, who will push hard for improvements, I
think the oversight of the PATRIOT Act will be improved. I know that
the reporting to Congress as to how this act is used will be improved.
Requirements to report on the use of 215 subpoenas and the minimization
procedures used to get rid of data and information on innocent
Americans collected through 215 subpoenas and National Security Letters
are improvements.
So I feel confident we have legislation that is a vast improvement
over current law in terms of protecting civil liberties. We have
oversight that is improved and, frankly, we have a strong coalition
within Congress that is committed to doing an effective job in making
sure these important law enforcement tools are used effectively but
also used fairly.
I know not all my colleagues will support this final package. I know
in particular Senator Feingold, who has worked extremely hard on this
issue, is not able to support this final package. He will speak more
eloquently than I can as to the concerns that remain, but among his
concerns is the breadth of the 215 standard and the feeling that we
ought to be able to agree on and work toward a standard that will
prevent fishing expeditions, that will better protect civil liberties
but still enable law enforcement to do their job. I share that concern
and that goal, but I at the same time recognize we have an obligation
to take the many gains we received throughout the reauthorization
process and reauthorize this legislation so we can move forward, focus
on our outstanding concerns, and focus on the agenda that still sits
before Congress.
I thank the President for the time and the opportunity to lay out the
improvements that are in the package before us. I look forward to the
debate and the discussion, but I do hope we can, in a deliberate
fashion, complete work on this legislation that now has gained
bipartisan support, has gained additional votes from Republicans,
including Senator Craig, Senator Hagel, Senator Murkowski, who have
raised concerns, Senator Durbin, Senator Feinstein, and others on the
Democratic side who have stood with us too since the end of last year
in the hopes of improving the balance of the conference report. I think
we do the country a service by enacting this legislation now with a
commitment to continue to try to improve it wherever we can.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[[Page S1327]]
Mr. SUNUNU. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
Mr. FEINGOLD. Mr. President, reserving the right to object.
The PRESIDING OFFICER. The Senator cannot reserve the right to
object.
Is there objection?
Mr. SUNUNU. I ask consent that the Senator be allowed to make his
point.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, I object to raising the quorum call.
The PRESIDING OFFICER. Without objection, the quorum call is
terminated, and the Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, I ask unanimous--I suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that I be
recognized to speak at 11 a.m. on the motion to proceed.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. Feingold. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Graham). Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, it will come as no surprise that I would
like to talk about the PATRIOT Act today, and certainly I listened to
the remarks of the Senator from New Hampshire and have greatly enjoyed
the experience of working with him on this issue for the last couple of
years.
I, of course, come to a very different conclusion about the matters
before us. I strongly oppose proceeding to the consideration of S.
2271, which is legislation introduced by some of my friends and
colleagues to implement the deal on the PATRIOT Act that was struck by
the White House last week.
Some may argue that there is no harm in passing a bill that could
charitably be described as trivial. But protecting the rights of law-
abiding Americans is not trivial, and passage of S. 2271 is the first
step toward passage of the flawed PATRIOT Act conference report.
I will oppose both measures, and I am prepared to discuss at length
my reasons for doing so. I do greatly respect the Senators who
negotiated this deal, but I am gravely disappointed in the outcome. The
White House would agree to only a few very minor changes to the same
PATRIOT Act conference report that could not get through the Senate
just back in this past December. These changes do not address the major
problems with the PATRIOT Act that the bipartisan coalition has been
trying to fix for the past several years.
In fact, the Senator from New Hampshire described the issues that
brought us together, the points that brought us together. This
agreement doesn't relate, in any significant way, to the provisions
that we were concerned about that brought us together in a bipartisan
way.
What came out of this agreement is, quite frankly, a figleaf to allow
those who were fighting hard to improve the act to step down, claim
victory, and move on. What a hollow victory that would be and what a
complete reversal of the strong, bipartisan consensus that we saw in
this body a couple months ago.
What we are seeing, I regret to say, is quite simply a capitulation
on the intransigent and misleading rhetoric of the White House that
sees any effort to protect civil liberties as a sign of weakness.
Protecting American values is not weakness. Standing on principle is
not weakness. Committing to fight terrorism aggressively without
compromising the rights and freedoms this country was founded upon is
not weakness either.
We have come too far and fought too hard to agree to reauthorize the
PATRIOT Act without fixing any of the major problems with the act. A
few insignificant face-saving changes don't cut it. So I cannot support
this deal. I strongly oppose proceeding to legislation that would
implement it.
I understand the pressure my colleagues have been under on this
issue, and I again want to say I appreciate all the hard work they have
done on the PATRIOT Act. It has been very gratifying to work on a
bipartisan basis on this issue. It is unfortunate the White House is so
obviously trying to make this into a partisan issue because it sees
some political advantage in doing so. But whether the White House likes
it, this will continue to be an issue where both Democrats and
Republicans have concerns, and we will continue to work together for
changes in the law. I am sure of that. But I will also continue to
strongly oppose any reauthorization of the PATRIOT Act that doesn't
protect the rights and freedoms of law-abiding Americans who have
absolutely no connection whatsoever to terrorism.
This deal does not meet that standard. Frankly, Mr. President, it
doesn't even come close. I urge my colleagues to oppose it and I,
therefore, ask that they oppose even proceeding to this legislation.
I wanted to take some time to lay out the background and context for
this ongoing debate over the PATRIOT Act, a debate that will not end
with the reauthorization of the 16 provisions that are now set to
expire March 10. And I want to discuss my concerns about this
reauthorization deal with some specificity.
Mr. President, because I was the only Senator to vote against the
PATRIOT Act in 2001, I want to be very clear from the start. I am not
opposed to reauthorization of the PATRIOT Act. I supported the
bipartisan compromise, the reauthorization bill the Senate passed last
July without a single Senator objecting. I believe that bill should
become law.
The Senate reauthorization bill is not a perfect bill, but it is
actually a good bill. If that were the bill we considered back in
December or the bill we were considering today, I would be speaking in
support of it. In fact, we could have completed the process of
reauthorizing the PATRIOT Act months ago if the House had taken up the
bill that the Senate approved without any objection from any Senator on
either side of the aisle.
I also want to respond to those who argue that any people who are
continuing to call for a better reauthorization package want to let the
PATRIOT Act expire. That is nonsense. Not a single Member of this body
is calling for any provision--not only that the bill should not be
reauthorized, but no Senator is calling for even one provision at all
to actually expire. There are any number of ways we can reauthorize the
act, while amending its most problematic provisions, and I am not
prepared to support reauthorization without adequate reform.
Let me also be clear about how this process fell apart at the end of
last year and how we ended up having to extend the PATRIOT Act
temporarily past the end of 2005. In December, this body, in one of its
prouder moments in recent years, refused to let through a badly flawed
conference report. A bipartisan group of Senators stood together and
demanded further changes. We made very clear what we were asking for.
We laid out five issues that needed to be addressed to get our support.
Let me quickly read excerpts from a letter that we sent out
explaining our concerns:
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.
The draft conference report doesn't provide meaningful
judicial review of a national security letter'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
[[Page S1328]]
Government is acting in bad faith. The recipients of NSLs are
entitled to meaningful judicial review of a gag order.
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.
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 timeframe should
not be a hardship on the Government.
Those are the key parts of the letter that we sent late last year.
Now, you might ask, in this newly announced deal on the PATRIOT Act,
have any of these problems been solved? Have any of the five problems
identified by the SAFE Act authors been solved?
The answer is simple, Mr. President. The answer is: No, not a single
one. Only one of these issues has been even partially addressed by this
deal. The White House applied immense pressure and pulled out its usual
scare tactics and succeeded in somehow convincing people to accept a
deal that makes only a tiny substantive improvement to a bill that was
actually rejected in December. This is simply not acceptable.
I want to explain in detail my biggest concerns with the conference
report, as modified by S. 2271, the legislation that the majority
leader is seeking to take up. First, I want to clear up one frequent
misconception. I have never advocated repeal of any portion of the
PATRIOT Act. In fact, as I have said repeatedly over the past 4 years,
I supported most of that bill. There were many good provisions in that
bill. As my colleagues know, the PATRIOT Act did a lot more than expand
our surveillance laws. Among other things, it set up a national network
to prevent and detect electronic crimes, such as the sabotage of the
Nation's financial sector; it established a counterterrorism fund to
allow the Justice Department offices, disabled in terrorist attacks, to
keep operating; and it changed the money laundering laws to make them
more useful in disrupting the financing of terrorist organizations. One
section even condemned discrimination against Arab and Muslim
Americans.
Even some of the act's surveillance sections were reasonable. One
provision authorized the FBI to expedite the hiring of translators.
Another added terrorism and computer crimes to the list of crimes for
which criminal wiretap orders could be sought. And some provisions
helped to bring down what has been called frequently ``the wall''--the
wall that had been built up between intelligence and law enforcement
agencies.
Whenever we start debating the PATRIOT Act, we hear a lot of people
saying we must reauthorize the PATRIOT Act in order to ensure that the
wall doesn't go back up. So let me make it clear. I supported the
information-sharing provisions of the PATRIOT Act. One of the key
lessons we learned in the wake of September 11 was that our
intelligence and law enforcement agencies were not sharing information
with each other, even where the statutes permitted it.
Unfortunately, the wall was not so much a legal problem as it was a
problem of culture. That is not just my conclusion. The report of the
9/11 Commission made that very clear. I am sorry to report we have not
made as much progress as we should have in bringing down those very
significant cultural barriers to information sharing among our
agencies. The 9/11 Commission report card that was issued toward the
end of last year gave the Government a ``D'' for information sharing
because our agencies' cultures have not changed enough. A statement
issued by Chairman Kean and Vice Chairman Hamilton explained, ``You can
change the law, you can change the technology, but you still need to
change the culture. You still need to motivate institutions and
individuals to share information.'' And so far, apparently, our
Government has not met that challenge.
Talking about the importance of information sharing, as
administration officials and other supporters of the conference report
have done repeatedly, is part of a pattern that started several years
ago on this issue of renewing or revising the PATRIOT Act. Rather than
engage in a true debate on the controversial parts of the PATRIOT Act,
as some in this body have done--to their credit--during this
reauthorization process, many proponents of the PATRIOT Act point to
the noncontroversial provisions of the act and talk about how important
they are. They say this bill must be passed because it reauthorizes
those noncontroversial provisions. But, that doesn't advance the
debate; it muddies the waters because we all agree that those
provisions should be continued.
The point is we don't have to accept bad provisions to make sure the
good provisions become law, or continue to be law.
I hope I actually advance the debate. I want to spend some time
explaining my specific concerns with the conference report and the deal
that was struck to make a few minor changes to it. It is unfortunate
the whole Congress could not come together, as the Senate did around
the Senate's bipartisan compromise reauthorization bill. In July, the
Senate Judiciary Committee voted unanimously in favor of a
reauthorization bill that made meaningful changes to the most
controversial provisions of the PATRIOT Act to protect the rights and
freedoms of innocent Americans.
Shortly thereafter, that bill passed the full Senate by unanimous
consent. It was not entirely easy for me to support the Senate bill,
which fell short of the improvements contained in the bipartisan SAFE
Act. But at the end of the day, the Senate bill actually contained
meaningful changes to some of the most problematic provisions in the
PATRIOT Act--provisions I have been trying to fix since October 2001--
so I decided to support it. I made it very clear at the time, however,
that I viewed the bill as the end point of negotiations, not the
beginning. In fact, I specifically warned my colleagues ``that the
conference process must not be allowed to dilute the safeguards in this
bill.'' Obviously, I meant it, but it appears that people either were
not listening or weren't taking me seriously. This conference report,
as slightly modified by this deal, unfortunately does not contain many
important reforms to the PATRIOT Act we passed in the Senate, so I
cannot support it. And I will fight.
I wish to remind my colleagues of the serious problems with the
PATRIOT Act which we have been discussing for several years now. Let me
start with section 215, the so-called library provision, which has
received probably the most public attention of any one of the
controversial provisions. I remember when the former Attorney General
of the United States called the librarians who were expressing
disagreement with this provision ``hysterical.'' What a revelation it
was when the Chairman of the Judiciary Committee, the Senator from
Pennsylvania, opened his questioning of the current Attorney General
during his confirmation hearing by expressing concerns about this
provision of the PATRIOT Act, section 215. He got the Attorney General
to concede that, yes, in fact, this provision probably went a bit too
far and could be improved and clarified. And that was really an
extraordinary moment. It was a moment that was very slow in coming, and
it was long overdue.
I give credit to the Senator from Pennsylvania because it allowed us
to start having a real debate on the PATRIOT Act. Credit also has to go
to the American people, who stood up, despite the dismissive and
derisive comments of Government officials, and said, with loud voices:
The PATRIOT Act needs to be changed.
My colleagues know as well as I do that these voices came from the
left and the right, from big cities and small towns across America. So
far, more than 400 State and local governmental bodies have passed
resolutions calling for revisions to the PATRIOT Act. I plan to read
some of those resolutions on the floor during this debate, and there
are a lot of them. Nearly every one mentions section 215.
Section 215 is at the center of this debate over the PATRIOT Act. It
is also one of the provisions that I tried unsuccessfully to amend here
on the floor in October of 2001. So it makes sense to start my
discussion of the specific problems I have with the conference report
with the infamous ``library'' provision.
[[Page S1329]]
Section 215 of the PATRIOT Act allows the Government to obtain secret
court orders in domestic intelligence investigations to get all kinds
of business records about people, including not just library records
but also medical records and various other types of business records.
The PATRIOT Act allowed the Government to obtain these records as long
as they were ``sought for'' a terrorism investigation. That is all they
had to say. That is a very low standard. It didn't require that the
records concern someone who was suspected of being a terrorist or spy
or even suspected of being connected to a terrorist or a spy. It didn't
require any demonstration of how the records would be useful in the
investigation. Under section 215, if the Government simply said it
wanted records for a terrorism investigation, the secret FISA Court was
required to issue the order--no discretion required to issue the order,
period. To make matters worse, recipients of these orders are also
subject to an automatic gag order. They cannot tell anyone that they
have been asked for records.
Some in the administration and even in this body took the position
that people shouldn't be able to criticize these provisions until they
could come up with a specific example of ``abuse.'' The Attorney
General has repeatedly made that same argument, and he did so again in
December in an op-ed in the Washington Post when he dismissed concerns
about the PATRIOT Act by saying that ``there have been no verified
civil liberty abuses in the 4 years of the Act's existence.''
First of all, that has always struck me as a strange argument since
215 orders are issued by a secret court and people who receive them are
prohibited by law from discussing them. In other words, the law is
designed--it is actually designed--so that it is almost impossible for
you to know if abuses have occurred. But even more importantly, the
claim about lack of abuse just isn't credible anymore, given what we
now know about how this administration views the surveillance laws that
this body, this Congress, writes. We now know that for the past 4-plus
years, the Government has been wiretapping the international
communications of Americans inside the United States without obtaining
the wiretap orders required by statute.
If we want to talk about abuses, I can't imagine a more shocking
example of an abuse of power than to violate the law by eavesdropping
on American citizens without first getting a court order based on some
evidence, some evidence that they are possibly criminals or terrorists
or spies. So I don't want to hear again from the Attorney General or
anyone on this floor that this Government has shown it can be trusted
to use the power we give it with restraint and care.
The Government should not have those kinds of broad, intrusive powers
in section 215--not this Government, not any government. The American
people shouldn't have to live with a poorly drafted provision which
clearly allows for the records of innocent Americans to be searched and
just hope that the Government uses it with restraint. A government of
laws doesn't require its citizens to rely on the good will and good
faith of those who have these powers, especially when adequate
safeguards could easily be written into the law--easily be written into
the law--without compromising their usefulness as a law enforcement or
antiterrorist tool.
After lengthy and difficult negotiations, the Judiciary Committee
came up with language that achieved that goal. It would require the
Government to convince a judge that a person has some connection to
terrorism or espionage before obtaining their sensitive records. When I
say ``some connection,'' that is what I mean. The Senate bill's
standard is the following: No. 1, that the records pertain to a
terrorist or spy; No. 2, that the records pertain to an individual in
contact with or known to a suspected terrorist or spy; or No. 3, that
the records are relevant to the activities of a suspected terrorist or
spy. That is the three-prong test in the Senate bill, and I believe it
is more than adequate to give law enforcement the power it needs to
conduct investigations while also sufficiently protecting the rights of
innocent Americans. It would not limit the types of records the
Government could obtain, and it does not go as far to protect law-
abiding Americans as I would prefer, but it would make sure the
Government cannot go on fishing expeditions into the records of
completely innocent people.
The Senate bill would also give recipients of the 215 order an
explicit, meaningful right to challenge those orders and the
accompanying gag orders in court. These provisions passed the Senate
Judiciary Committee unanimously after tough negotiations late into the
night, and as anyone familiar with the Judiciary Committee knows,
including the Chair, that is no mean feat, to get that done in the
Judiciary Committee on any issue.
The conference report did away with this delicate provision. First
and most importantly, it does not contain the critical modifications to
the standard for section 215 orders. The Senate permits the Government
to obtain business records only if it can satisfy one or more of the
prongs of the three-prong test I just described. This is a broad
standard, and it has a lot of flexibility. But it retains the core
protection--the core protection--that the Government cannot go after
someone who has no connection whatsoever to a terrorist or spy or their
activities.
The conference replaces the three-prong test with a simple relevance
standard. It then provides a presumption of relevance that the
Government meets one of the three prongs. It is silly to argue that
this is adequate protection against a fishing expedition. The only
actual requirement in the conference report is that the Government show
that those records are just relevant to an authorized intelligence
investigation--that is all--just relevant to an authorized intelligence
investigation. Relevance is a very broad standard that could arguably
justify the collection of all kinds of information about all kinds of
law-abiding Americans. The three prongs are just examples of how the
Government can satisfy the relevance standard. That is not simply a
loophole or an exception that swallows the rule; the exception is the
rule. The exception basically destroys the meaning of the carefully
considered three-prong test we all supported in the Senate.
I will try to make this as straightforward as I can. The Senate bill
requires the Government to satisfy one of three tests. Each test
requires some connection between the records and a suspected terrorist
or spy. But the conference report says that the Government only is
required to satisfy a new fourth test, and that test is only relevance
and which does not require a connection between the records and a
suspect. So the other three tests no longer provide any protections at
all.
This issue was perhaps the most significant reason I and others
objected to the conference report. So, naturally, the question today
is, How was this issue addressed by the White House deal to get the
support of some Senators? The answer is, It wasn't. Not one change was
made on the standard for obtaining section 215 orders, and that is a
grave disappointment. The White House refused to make any changes at
all. Not only would it not accept the Senate version of section 215,
which no Member of this body objected to back in July, it wouldn't make
any change in the conference report on this issue at all.
Another significant problem with the conference report that was
rejected back in December is that it does not authorize judicial review
of the gag order that comes with a section 215 order. While some have
argued that the review by the FISA Court of a Government application
for a section 215 order is equivalent to judicial review of the
accompanying gag order, that is simply inaccurate. The statute does not
give the FISA Court any latitude to make an individualized decision
about whether to impose a gag order when it issues a section 215 order.
It is required by statute to include a gag order in every section 215
order. That means the gag order is automatic and permanent in every
case.
This is a serious deficiency and one which very likely violates the
First Amendment. In litigation challenging a similar, permanent,
automatic gag rule in a national security letter statute, two courts
have found first amendment violations because there is no
individualized evaluation of the need for secrecy. I have those
decisions here,
[[Page S1330]]
and perhaps I will have a chance to read them during this debate.
This question of judicial review of the section 215 gag order is one
issue that is actually addressed in some way by the White House deal--
addressed but not solved. Far from it. Under the deal, there is
judicial review of section 215 gag orders, but it can only take place
after a year has passed, and it can only be successful if the recipient
of the section 215 order proves that the Government has acted in bad
faith. As many of us have argued in the context of national security
letters, that is a virtually impossible standard to meet. What we need
is meaningful judicial review of these gag orders, not just the
illusion of it.
I do acknowledge one change made by the White House deal that I do
think is an improvement over the conference report. The conference
report clarifies that the recipients of both section 215 orders and
national security letters, which I will discuss in detail in a moment,
can consult an attorney, but it also includes a provision that requires
the recipients of these letters to notify the FBI if they consult with
the attorney and to identify the attorney to the FBI. Obviously, this
could have a significant chilling effect on the right to counsel. The
deal struck with the White House makes clear that recipients of section
215 orders in national security letters would not have to tell the FBI
if they consult with an attorney. That is an improvement over the
conference report but, unfortunately, it is only one relatively minor
change.
Let me now turn to a very closely related provision that has finally
been getting the attention it deserves: national security letters, or
NSLs--an authority that was expanded by section 358 and 505 of the
PATRIOT Act. This NSL issue has flown under the radar for years, even
though many of us have been trying to bring more public attention to
it. I am gratified that we are finally talking about NSLs, in large
part due to a lengthy Washington Post story published last year on the
use of these authorities.
What are NSLs, and why are they such a concern? Let me spend a little
time on this because it is quite important. National security letters
are issued by the FBI to businesses to obtain certain types of records.
So they are similar to section 215 orders, but with one very critical
difference: the Government does not need to get any court approval
whatsoever to issue them. It doesn't have to go to the FISA Court and
make even the most minimal showing. It simply issues the order signed
by the special agent in charge of a field office or some other FBI
headquarters official.
NSLs can only be used to obtain certain categories of business
records, in fairness, while section 215 orders can be used to obtain
``any tangible thing.''
But even the categories reachable by an NSL are quite broad. NSLs can
be used to obtain three types of business records: subscriber and
transactional information related to Internet and phone usage; credit
reports; and financial records, a category that has been expanded to
include records from all kinds of everyday businesses like jewelers,
car dealers, travel agents and even casinos.
Just as with section 215, the PATRIOT Act expanded the NSL
authorities to allow the Government to use them to obtain records of
people who are not suspected of being, or even of being connected to,
terrorists or spies. The Government need only certify that the
documents are either sought for or relevant to an authorized
intelligence investigation, a far-reaching standard that could be used
to obtain all kinds of records about innocent Americans. And just as
with section 215, the recipient is subject to an automatic, permanent
gag rule.
The conference report does little to fix the problems with the
national security letter authorities. In fact, it could be argued that
it makes the law worse. Let me explain why.
First, the conference report does nothing to fix the standard for
issuing an NSL. It leaves in place the breathtakingly broad relevance
standard. Now, some have analogized NSLs to grand jury subpoenas, which
are issued by grand juries in criminal investigations to obtain records
that are relevant to the crime they are investigating. So, the argument
goes, what is the big deal if NSLs are also issued under a relevance
standard for intelligence investigations?
Two critical differences make that analogy break down very quickly.
First of all, the key question is: Relevant to what? In criminal cases,
grand juries are investigating specific crimes, the scope of which is
explicitly defined in the criminal code. Although the grand jury is
quite powerful, the scope of its investigation is limited by the
particular crime it is investigating. In sharp contrast, intelligence
investigations are, by definition, extremely broad. When you are
gathering information in an intelligence investigation, anything could
potentially be relevant. Suppose the Government believes a suspected
terrorist visited Los Angeles in the last year or so. It might then
want to obtain and keep the records of everyone who has stayed in every
hotel in L.A., or booked a trip to L.A. through a travel agent, over
the past couple years, and it could argue strongly that that
information is relevant to a terrorism investigation because it would
be useful to run all those names through the terrorist watch list.
I don't have any reason to believe that such broad use of NSLs is
happening. But the point is that when you are talking about
intelligence investigations, ``relevance'' is a very different concept
than in criminal investigations. It is certainly conceivable that NSLs
could be used for that kind of broad dragnet in an intelligence
investigation. Nothing in current law prevents it. The nature of
criminal investigations and intelligence investigations is different,
and let's not forget that.
Second, the recipients of grand jury subpoenas are not subject to the
automatic secrecy that NSL recipients are. We should not underestimate
the power of allowing public disclosure when the Government
overreaches. In 2004, Federal officials withdrew a grand jury subpoena
issued to Drake University for a list of participants in an antiwar
protest because of public revelations about the demand. That could not
have happened if the request had been under section 215 or for records
available via the NSL authorities.
Unfortunately, there are many other reasons why the conference report
does so little good on NSLs. Let's talk next about judicial review. The
conference report creates the illusion of judicial review for NSLs,
both for the letters themselves and for the accompanying gag rule, but,
if you look at the details, it is drafted in a way that makes that
review virtually meaningless. With regard to the NSLs themselves, the
conference report permits recipients to consult their lawyer and seek
judicial review, but it also allows the Government to keep all of its
submissions secret and not share them with the challenger, regardless
of whether there are national security interests at stake. So you can
challenge the order, but you have no way of knowing what the Government
is telling the court in response to your challenge. The parties could
be arguing about something as garden variety as attorney-client
privilege, with no national security issues, and the Government would
have the ability to keep its submission secret. That is a serious
departure from our usual adversarial process, and it is very
disturbing.
The other significant problem with the judicial review provisions is
the standard for getting the gag rule overturned. In order to prevail,
the recipient has to prove that any certification by the Government
that disclosure would harm national security or impair diplomatic
relations was made in bad faith. Again, this is a standard of review
that is virtually impossible to meet. So what we have is the illusion
of judicial review. When you look behind the words in the statute, you
realize it's just a mirage.
Does the White House deal address these problems? It does not. In
fact, as I have already discussed, it expands that same very troubling
standard of review to judicial review section 215 gag orders.
The modifications to the conference report agreed to by the White
House do contain one other purported change to one of the NSL statutes.
This modification states that the FBI cannot issue an NSL for
transactional and subscriber information about telephone and Internet
usage to a library unless
[[Page S1331]]
the library is offering ``electronic communication services'' as
defined in the statute. But that just restates the existing
requirements of the NSL statute, which currently applies only to
entities--libraries or otherwise--that provide ``electronic
communication services.'' So that provision has no real legal effect
whatsoever. Perhaps that explains why the American Library Association
issued a statement calling this provision a ``figleaf'' and expressing
disappointment that so many Senators have agreed to this deal.
I also want to take a moment to address, again, an argument that has
been made about the NSL provisions of the conference report. It has
been argued that many of the complaints I have about the NSL provisions
of the conference report apply equally to the NSL provisions of the
Senate bill and therefore, because I supported the Senate bill, by some
convoluted theory my complaints are therefore invalid and I should
support the conference report.
That just makes no sense. The NSL section of the Senate bill was one
of the worst sections of the bill. I didn't like it then, and I don't
like it now. But in the context of the larger package of reforms that
were in the Senate bill, including the important changes to section 215
that I talked about earlier and the new time limit on ``sneak and
peek'' search warrants that I will talk about in a moment, I was able
to accept that NSL section even though I would have preferred
additional reforms.
The argument has been made that after supporting a compromise package
for its good parts, I guess the idea is I am supposed to accept a
conference report that has only the bad parts of the package even
though the good parts have been stripped out. That is just nonsense,
and every Member of this chamber who has ever agreed to a compromise--
and I must assume that includes every single one of us--knows it.
The other point I want to emphasize here is that the Senate bill was
passed before the Post reported about the use of NSLs and the
difficulties that the gag rule poses for businesses that feel they are
being unfairly burdened by them. At the very least, I would think that
a sunset of the NSL authorities would be justified to ensure that
Congress has the opportunity to take a close look at such a broad
power. But the conferees and the White House refused to make that
change. Nor would they budge at all on the absurdly difficult standard
of review, the so-called conclusive presumption; in fact, the White
House insisted on repeating it in the context of judicial review of
section 215 gag orders.
This points out a real problem I have with the White House deal. In
our letter in December, my colleagues and I, Democratic and Republican,
complained about the unfair standard for judicial review of the gag
order in connection to NSLs. So how can the supporters of this deal
argue that applying that same standard to challenges to the gag rule
for section 215 orders is an improvement? A standard that was
unacceptable in December has somehow miraculously been transformed into
a meaningful concession. That is just spin. It doesn't pass the laugh
test.
I suspect that the NSL power is something that the administration is
zealously guarding because it is one area where there is almost no
judicial involvement or oversight. It is the last refuge for those who
want virtually unlimited Governmental power in intelligence
investigations. And that is why the Congress should be very concerned
and very insistent on making the reasonable changes we have suggested.
I next want to address ``sneak and peek'' searches. This is another
area where the conference report departs from the Senate's compromise
language, another area where the White House deal makes no changes
whatsoever, and another reason that I must oppose the conference
report.
When we debated the PATRIOT Act in December, the senior Senator from
Pennsylvania made what seems on the surface to be an appealing
argument. He said that the Senate bill requires notice of a sneak and
peek search within 7 days of the search, and the House said 180 days.
The conference compromised on 30 days. ``That's a good result,'' he
says. ``They came down 150 days, we went up only 23. What's wrong with
that?''
Let me take a little time to put this issue in context and explain
why this isn't just a numbers game--an important constitutional right
is at stake.
One of the most fundamental protections in the Bill of Rights is the
fourth amendment's guarantee that all citizens have the right to ``be
secure in their persons, houses, papers, and effects'' against
``unreasonable searches and seizures.'' The idea that the Government
cannot enter our homes improperly is a bedrock principle for Americans,
and rightly so. The fourth amendment has a rich history and includes in
its ambit some very important requirements for searches. One is the
requirement that a search be conducted pursuant to a warrant. The
Constitution specifically requires that a warrant for a search be
issued only where there is probable cause and that the warrant
specifically describe the place to be searched and the persons or
things to be seized.
Why does the Constitution require that particular description? For
one thing, that description becomes a limit on what can be searched or
what can be seized. If the magistrate approves a warrant to search
someone's home and the police show up at the person's business, that
search is not valid. If the warrant authorizes a search at a particular
address, and the police take it next door, they have no right to enter
that house. But of course, there is no opportunity to point out that
the warrant is inadequate unless that warrant is handed to someone at
the premises. If there is no one present to receive the warrant, and
the search must be carried out immediately, most warrants require that
they be left behind at the premises that were searched. Notice of the
search is part of the standard Fourth Amendment protection. It's what
gives meaning, or maybe we should say ``teeth,'' to the Constitution's
requirement of a warrant and a particular description of the place to
be searched and the persons or items to be seized.
Over the years, the courts have had to deal with Government claims
that the circumstances of a particular investigation require a search
without notifying the target prior to carrying out the search. In some
cases, giving notice would compromise the success of the search by
leading to the flight of the suspect or the destruction of evidence.
The two leading cases on so-called surreptitious entry, or what have
come to be known as ``sneak and peek'' searches, came to very similar
conclusions. Notice of criminal search warrants could be delayed but
not omitted entirely. Both the Second Circuit in U.S. v. Villegas and
the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant
must provide that notice of the search will be given within 7 days,
unless extended by the court. Listen to what the Freitas court said
about such searches:
We take this position because surreptitious searches and
seizures of intangibles strike at the very heart of the
interests protected by the Fourth Amendment. The mere thought
of strangers walking through and visually examining the
center of our privacy interest, our home, arouses our passion
for freedom as does nothing else. That passion, the true
source of the Fourth Amendment, demands that surreptitious
entries be closely circumscribed.
So when defenders of the PATRIOT Act say that sneak and peek searches
were commonly approved by courts prior to the PATRIOT Act, they are
partially correct. Some courts permitted secret searches in very
limited circumstances, but they also recognized the need for prompt
notice after the search unless a reason to continue to delay notice was
demonstrated. And they specifically said that notice had to occur
within 7 en days.
Section 213 of the PATRIOT Act didn't get this part of the balance
right. It allowed notice to be delayed for any reasonable length of
time. Information provided by the administration about the use of this
provision indicates that delays of months at a time are now becoming
commonplace. Those are hardly the kind of delays that the courts had
been allowing prior to the PATRIOT Act.
The sneak and peek power in the PATRIOT Act caused concern right from
the start. And not just because of the lack of a time-limited notice
requirement. The PATRIOT Act also broadened the justifications that the
Government could give in order to obtain a sneak and peek warrant. It
included
[[Page S1332]]
what came to be known as the ``catch- all'' provision, which allows the
Government to avoid giving notice of a search if it would ``seriously
jeopardize an investigation.'' Some think that that justification in
some ways swallows the requirement of notice since most investigators
would prefer not to give notice of a search and can easily argue that
giving notice will hurt the investigation.
That is why it sounds to many like a catch-all provision.
Critics of the sneak and peek provision worked to fix both of the
problems when they introduced the SAFE Act. First, in that bill, we
tightened the standard for justifying a sneak and peek search to a
limited set of circumstances--when advance notice would endanger life
or property, or result in flight from prosecution, the intimidation of
witnesses, or the destruction of evidence. Second, we required notice
within 7 days, with an unlimited number of 21-day extensions if
approved by the court.
The Senate bill, as we all know, was a compromise. It kept the catch-
all provision as a justification for obtaining a sneak and peek
warrant. Those of us who were concerned about that provision agreed to
accept it in return for getting the 7-day notice requirement. And we
accepted unlimited extensions of up to 90 days at a time. The key thing
was prompt notice after the fact, or a court order that continuing to
delay notice was justified.
That is the background to the numbers game that the Senator from
Pennsylvania and other supporters of the conference report point to.
They want credit for walking the House back from its outrageous
position of 180 days, but they refuse to recognize that the sneak and
peek provision still has the catch-all justification and unlimited 90-
day extensions.
Here is the crucial question that they refuse to answer. What
possible rationale is there for not requiring the Government to go back
to a court within 7 days and demonstrate a need for continued secrecy?
Why insist that the Government get 30 days free without getting an
extension? Could it be that they think that the courts usually won't
agree that continued secrecy is needed after the search is conducted,
so they won't get the 90-day extension? If they have to go back to a
court at some point, why not go back after 7 days rather than 30? From
the point of view of the Government, I don't see the big deal. But from
the point of view of someone whose house has been secretly searched,
there is a big difference between 1 week and a month with regard to the
time you are notified that some one came into your house and you had
absolutely no idea about it.
Suppose, for example, that the Government actually searched the wrong
house. As I mentioned, that's one of the reasons that notice is a
fourth amendment requirement. The innocent owner of the place that had
been searched might suspect that someone had broken in, might be living
in fear that someone has a key or some other way to enter. Should we
make that person wait a month to get an explanation rather than a week?
Presumably, if the search revealed nothing, and especially if the
Government realized the mistake and does not intend to apply for an
extension, it will be no hardship, other than embarrassment, for notice
to be given within 7 days.
That is why I'm not persuaded by the numbers game. The Senate bill
was already a compromise on this very controversial provision. And
there is no good reason not to adopt the Senate's provision. I have
pointed this out repeatedly, and no one has ever come forward and
explained why the Government can't come back to the court within 7 days
of executing the search. Instead, they let the House get away with a
negotiating tactic--by starting with 180 days, they can argue that 30
days is a big concession. But it certainly wasn't.
Let me put it to you this way: If the House had passed a provision
that allowed for notice to be delayed for 1,000 days, would anyone be
boasting about a compromise that requires notice within 100 days, more
than 3 months? Would that be a persuasive argument? I don't think so.
The House provision of 180 days was arguably worse than current law,
which required notice ``within a reasonable time,'' because it creates
a presumption that delaying notice for 180 days, 6 months, is
reasonable. It was a bargaining ploy. The Senate version was what the
courts had required prior to the PATRIOT Act. And it was itself a
compromise because it leaves in place the catch-all provision for
justifying the warrant in the first place. That is why I believe the
conference report on the sneak and peek provision is inadequate and
must be opposed. And the fact that this so-called deal with the White
House does not address this issue is yet another reason why I see no
reason why I, or anyone, should change their position on this.
Let me make one final point about sneak and peek warrants. Don't be
fooled for a minute into believing that this power is needed to
investigate terrorism or espionage. It's not. Section 213 is a criminal
provision that applies in whatever kinds of criminal investigations the
Government has undertaken. In fact, most sneak and peek warrants are
issued for drug investigations. So why do I say that they aren't needed
in terrorism investigations? Because FISA also can apply to those
investigations. And FISA search warrants are always executed in secret,
and never require notice. If you really don't want to give notice of a
search in a terrorism investigation, you can get a FISA warrant. So any
argument that limiting the sneak and peek power as we have proposed
will interfere with sensitive terrorism investigations is a red
herring.
I have spoken at some length about the provisions of this conference
report that trouble me, and the ways in which the deal struck with the
White House does not address those problems with the conference report.
But to be fair, I should mention one aspect of the conference report
that was better than a draft that circulated prior to the final signing
of that report. The conference report includes 4-year sunsets on three
of the most controversial provisions: roving wiretaps, the so-called
``library'' provision, and the ``lone wolf' provision of the Foreign
Intelligence Surveillance Act. Previously, the sunsets on these
provisions were at 7 years, and it is certainly an improvement to have
reduced that number so that Congress can take another look at those
provisions sooner.
I also want to acknowledge that the conference report creates new
reporting requirements for some PATRIOT Act powers, including new
reporting on roving wiretaps, section 215, ``sneak and peek'' search
warrants, and national security letters. There are also new
requirements that the Inspector General of the Department of Justice
conduct audits of the Government's use of national security letters and
section 215. In addition, the conference report includes some other
useful oversight provisions relating to FISA. It requires that Congress
be informed about the FISA Court's rules and procedures and about the
use of emergency authorities under FISA, and gives the Senate Judiciary
Committee access to certain FISA reporting that currently only goes to
the Intelligence Committee. I am also glad to see that it requires the
Department of Justice to report to us on its data mining activities.
But adding sunsets and new reporting and oversight requirements only
gets you so far. The conference report, as it would be modified by S.
2271, remains deeply flawed. I appreciate sunsets and reporting, and I
know that the senior Senator from Pennsylvania worked hard to ensure
they were included, but these improvements are not enough. Sunsetting
bad law in another 4 years is not good enough. Simply requiring
reporting on the Government's use of these overly expansive tools does
not ensure that they will not be abused. We must make substantive
changes to the law, not just improve oversight. This is our chance, and
we cannot let it pass by.
Trust of Government cannot be cannot be demanded or asserted or
assumed; it must be earned. And this administration has not earned our
trust. It has fought reasonable safeguards for constitutional freedoms
every step of the way. It has resisted congressional oversight and
often misled the public about its use of the PATRIOT Act. We know now
that it has even authorized illegal wiretaps and is making misleading
legal arguments to try to justify them. We sunsetted 16 provisions of
the original PATRIOT Act precisely so we could revisit them and make
necessary changes--to make improvements based on the experience of 4
[[Page S1333]]
years with the Act, and with the careful deliberation and debate that,
quite frankly, was missing 4 years ago. This process of reauthorization
has certainly generated debate, but if we pass the conference report,
even with the few White House modifications, in some ways we will have
wasted a lot of time and missed our opportunity to finally get it
right.
The American people will not be happy with us for missing that
chance. They will not accept our explanation that we decided to wait
another 4 years before really addressing their concerns. It appears
that is now an inevitable outcome. But I am prepared to keep fighting
for as long as it takes to get this right. For now, I urge my
colleagues to oppose the motion to proceed to this legislation to
implement the White House deal. We can do better than these minor
cosmetic changes.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ALLEN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Allen pertaining to the introduction of S.J. Res.
31 are located in today's Record under ``Submission of Concurrent and
Senate Resolutions.'')
Mr. ALLEN. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Thune). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Allen). Without objection, it is so
ordered.
Mr. DORGAN. Mr. President, I understand the current business. I ask
unanimous consent that my presentation appear in the Record as in
Morning Business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Dorgan are printed in today's Record under
``Morning Business.'')
Mr. DORGAN. Mr. President, I yield the floor and I suggest the
absence of a quorum.
The PRESIDING OFFICER (Mr. Sununu). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, we are again enduring another filibuster
of the PATRIOT Act. It is frustrating to me in the sense that I
believe, properly understood, the PATRIOT Act provides tremendous
protections to the people of the United States which don't now exist,
and that those protections are crafted in a way which is sensitive to
and consistent with the great civil liberties which we all cherish.
Two months ago, in December, we had a long debate, and since then, we
have had to extend the PATRIOT Act for some time without reauthorizing
it. Leaders have met and worked and dealt with some concerns. I know
four Republican Senators who had concerns, and their concerns have been
met. I think others also have likewise felt their concerns have been
met. They are not large changes, but it made the Senators happy and
they feel comfortable with voting for the bill today. That is good
news. It is time to pass it.
I believe the American people expect that we will be able to have an
up-or-down vote on this legislation. That has been blocked. There has
been a majority in favor of the legislation for some time.
To get to cloture, we have to use 30 hours of debate, which will
probably last throughout the day and into tomorrow. We will get there
this time, I am confident. When we do, we will have a fairly strong
vote, I believe, in favor of the legislation. We certainly should.
I urge my colleagues to work with us as best they can to move this
forward in an expeditious way that allows for the up-or-down vote that
is necessary.
I have talked about it a number of times, but I thought today I would
focus on the question of why the PATRIOT Act matters, or are these just
academic issues? Are they issues of an FBI agent wanting to violate our
civil rights and spy on us? Some group in Government out here with
black helicopters trying to find out what people are doing and then
take away our liberties?
That is a great exaggeration. This is not what is at stake here. This
bill is consistent with our great American liberties. It has not been
held unconstitutional. Overwhelmingly, the powers given in this act are
powers that law enforcement officers have had for years. They have been
able to utilize them to catch burglars, murderers, drug dealers, and
the like.
The local district attorney can subpoena my library records, medical
records, and bank records. The Drug Enforcement Administration Act by
administrative subpoena--not even a grand jury subpoena--can subpoena
my telephone toll records. That has always been the law. That is the
law today. We have provisions that allow our investigators to do that
for terrorists. One would think somehow we are ripping the Constitution
into shreds, that this is somehow a threat to our fundamental
liberties. It is not so.
Let me point out I had the privilege, for over 15 years, to be a
Federal prosecutor and work on a daily basis with FBI agents, DEA
agents, and customs agents. These are men and women who love their
country. They believe in our law. They follow the law. In my remarks, I
will demonstrate these agents, unlike what is seen on television,
follow what we tell them to do. If they do not follow what we tell them
to do, they can be prosecuted, removed from the FBI, the DEA or the
Federal agency for which they work. In fact, they know that and they
remain disciplined and men and women of integrity who follow the law.
Therefore, do not think, when we pass restrictions on how they do their
work, that it is not going to be followed; that if it is a really big
case, such as on ``Kojak,'' that they will go in and kick in the door
without a warrant. That does not happen.
In 2001, we know at least 19 foreign terrorists were able to enter
this country and plan and execute the most devastating terrorist attack
this Nation has ever seen. The reasons the United States and terror
investigators, the people we had out there at the time--FBI, CIA, and
others--failed to uncover and stop the September 11 conspiracy have now
been explored carefully by a joint inquiry of the House and Senate
Intelligence Committees and other congressional committees and
commissions, as well as the 9/11 Commission. These very commissions and
inquiries have reviewed, in painstaking detail, the various pre-
September 11 investigations that were out there--investigations,
inquiries, preliminary inquiries--gathering information that raised
people's suspicions about terrorism.
These investigations could have but unfortunately did not stop the
September 11 plot. We have seen how close the investigators came to
discovering or disrupting the conspiracy, only to repeatedly reach dead
ends or obstructions to their investigations.
Those are the facts they found. Some of the most important pre-
September 11 investigations, we know exactly what stood in the way of a
successful investigation. It was the laws Congress wrote, seemingly
minor, but, nevertheless, with substantive gaps in our antiterror laws,
preventing the FBI from fully exporting the best leads it had on the
al-Qaida conspiracy. One pre-September 11 investigation, in particular,
came tantalizingly close to substantially disrupting or even stopping
the terrorist plot. But this investigation was blocked by a flaw in our
antiterror laws that has since been corrected by this PATRIOT Act being
filibustered today.
This investigation involved Khalid Al Midhar. Midhar was one of the
eventual suicide attackers on the American Airlines flight 77 which was
flown into the Pentagon across the river from here, killing 58
passengers on the plane, the crew, and 125 people at the Pentagon.
Patriots all.
An account of a pre-September 11 investigation of Midhar is provided
in the 9/11 Commission Staff Statement No. 10. The 9/11 Commission
looked at what information we did have prior to these events, and this
is what the staff statement notes:
[[Page S1334]]
During the summer of 2001, a CIA agent asked an FBI
official [a CIA agent responsible for foreign intelligence
talked with an FBI official responsible for the security and
law enforcement international] to review all of the materials
from a Al Qaeda meeting in Kuala Lumpur, Malaysia one more
time. The FBI official began her work on July 24th prior to
September 11, 2001. That day she found the cable reporting
that Khalid Al Mihdhar had a visa to the United States. A
week later she found the cable reporting that Mihdhar's visa
application--what was later discovered to be his first
application--listed New York as his destination . . . The FBI
official grasped the significance of this information.
The FBI official and an FBI analyst working on the case
promptly met with INS representatives at the FBI
Headquarters. On August 22nd, INS told them that Mihdhar had
entered the United States on January 15t, 2000, and again on
July 4, 2001 . . . The FBI agents decided that if Mihdhar was
in the United States, he should be found.
At this point, the investigation of Khalid Al Midhar came up against
the infamous legal ``wall'' that separated criminal and intelligence
investigations at the time.
The Joint Inquiry Report of the House and Senate Intelligence
Committees describes what happens next:
Even in late August 2001 when CIA told FBI, State, INS, and
Customs that Khalid al-Mihdhar, Nawaf al-Yazmi, and two other
``Bin Laden-related individuals'' were in the United States,
FBI Headquarters refused to accede to the New York field
office recommendation that a criminal investigation be
opened, which might allow greater resources to be
dedicated to the search for the future hijackers . . .
The FBI has attorneys. They read our statutes, they read the laws we
pass, they tell the agents what they can and cannot do because they are
committed to complying with the laws we place upon them.
The FBI attorneys took the position that criminal
investigators CANNOT be involved and that criminal
information discovered in the intelligence case would be
``passed over the wall'' according to procedures. An agent in
the FBI's New York field office responded by an e-mail,
saying--
And I will quote the agent in a second but the scene is this: The FBI
field office in New York concluded, after obtaining information from
CIA that this individual, one of the hijackers, was a dangerous person
and should be found. And the FBI field office--it is a big deal to be a
special agent in charge of the New York field office, the biggest one
in the country--recommended to FBI headquarters that we act on it. The
FBI lawyers read the laws we passed and said ``you cannot.'' This is
what the agent in New York responded when he heard this, sent it by e-
mail. See if this doesn't chill your spine a bit.
He said:
Whatever has happened to this, someday someone will die
and, wall or not, the public will not understand why we were
not more effective in throwing every resource we had at
certain problems.
That was his reaction. It was a natural reaction.
How did we get this wall? It occurred in a spate of reform
legislation after abuses of Watergate and the Frank Church committee
hearings. They decided that in foreign intelligence--that is one thing,
domestic is another--foreign intelligence does not always follow every
rule. We ought to have a clear line between the FBI, which is over here
in America, and we ought not give them information that the CIA had
because they thought somehow this was going to deny us our civil
liberties, which was not very clear thinking, in my view.
But these were good people. They were driven maybe by the politics of
the time or what they thought was good at the time. They created this
wall we have demolished with the PATRIOT Act--and good riddance it is.
There is no sense in this.
The 9/11 Commission has reached the following conclusion about the
effect the legal wall between criminal and intelligence investigations
had on the pre-September 11 investigation of Khalid Al Midhar. This is
what the 9/11 Commission concludes:
Many witnesses have suggested that even if Mihdhar had been
found, there was nothing the agents could have done except
follow him onto the airplane. We believe this is incorrect.
Both Hazmi and Mihdhar could have been held for immigration
violations or as material witnesses in the Cole bombing case.
This was our warship, the USS Cole, that was bombed by al-Qaida,
killing a number of American sailors in Yemen; an attack on a warship
of the United States by al-Qaida. What does it take to get our
attention?
This report continues:
Investigation or interrogation of any of these individuals,
and their travel and financial activities, also may have
yielded evidence of connections to other participants in the
9/11 plot. In any case, the opportunity did not arise.
There was a realistic chance, had these rules not existed, rules that
this PATRIOT Act eliminates, we would have been able to move forward
with an investigation that had some prospect of actually preventing
September 11 from occurring.
Some say, Jeff, you cannot say that for certain; and I am not saying
it for certain, but I have been involved in investigations. You never
know. You get a bit of information, you follow up on a lead or two, you
get a search warrant, you surveil an activity, and all of a sudden you
find that bit of evidence that takes you even further into an
organization committed to a criminal activity or a terrorist plot you
never knew existed. This is reality of law enforcement work today. We
ask them every day to do this. And those investigating terrorist cases
are giving their very heart and soul to it. They are trying every way
possible, consistent with the law, not outside the law, to gather all
the information they can to be successful.
So we know the PATRIOT Act was enacted too late to have aided in the
pre-September 11 investigations, unfortunately. But it did raise our
consciousness of the lack of wisdom on the reform legislation that was
passed the year before--all with good intentions.
Let me mention another matter of a similar nature.
Another key pre-September 11 investigation was also blocked by a
seemingly minor gap in the law. The case involves Minneapolis FBI
agents' summer 2001 investigation of al-Qaida member Zacarias
Moussaoui.
Hearings before the 9/11 Commission raised agonizing questions about
the FBI's pursuit of Moussaoui. Commissioner Richard Ben-Veniste noted
the possibility that the Moussaoui investigation could have allowed the
United States to ``possibly disrupt the [9/11] plot.'' Commissioner Bob
Kerrey, a former Member of this Senate, even suggested that with better
use of the information gleaned from Moussaoui, the ``conspiracy would
have been rolled up.''
Moussaoui was arrested by Minneapolis FBI agents several weeks before
the 9/11 attacks. Do you remember that? He was arrested early that
summer. Instructors at a Minnesota flight school became suspicious when
Moussaoui, with little apparent knowledge of flying, asked to be taught
how to pilot a 747. The instructors were concerned about it. They were
on alert. They did what good citizens would do. Remember, this is
before 9/11. But they were concerned about this oddity. They called the
FBI in Minneapolis, which immediately suspected that Moussaoui might be
a terrorist.
FBI agents opened an investigation of Moussaoui and sought a FISA
that is the Foreign Intelligence Surveillance Court--national security
warrant to search his belongings. But for 3 long weeks, the FBI agents
were denied that FISA warrant. During that 3 weeks--you know the
truth--the September 11 attack occurred.
After the attacks--and largely because of them the agents were then
able to obtain an ``ordinary'' criminal warrant. So after the attacks,
the agents were issued an ``ordinary'' criminal warrant to conduct the
search. And when they conducted the search, his belongings then linked
Moussaoui to two of the actual 9/11 hijackers and to a high-level
organizer of the attacks who was later arrested in Pakistan.
The 9/11 Commissioners were right to ask whether more could have been
done to pursue the case. This case was one of our best chances of
stopping or disrupting the 9/11 attacks. Could more have been done? The
best answer is probably no--based on the law that existed at that time.
The FBI agents were blocked from searching Moussaoui because of an
outdated requirement of the 1978 FISA statute. Unfortunately, one of
that statute's requirements was that the target of an investigation--if
it were to be subject to a search under a FISA warrant, a foreign
intelligence warrant--the agent had to have proof that he was not a
lone-wolf terrorist, but he
[[Page S1335]]
must have been an agent of a foreign power or a known terrorist group.
The law did not allow searches of apparent lone wolves, like Zacarias
Moussaoui was thought to be at the time. They did not have the evidence
to show otherwise.
So according to the FBI Director, the man in charge of the FBI,
Robert Mueller--a former prosecutor of many years and a skilled
lawyer--the gap in FISA probably would have prevented the FBI from
using FISA against any of the September 11 hijackers. As the Director
noted in his testimony before the Judiciary Committee:
Prior to September 11, [of] the 19 or 20 hijackers . . . we
had very little information as to any one of the individuals
being associated with . . . a particular terrorist group.
So in other words, their lawyers in the FBI were saying: Well, you
can't use the FISA. I know you want to. I know you have suspicions. And
I know he looks like a terrorist. And we would like to search his
belongings and see if he has any connection with any terrorist
organization and maybe find out if they have any bombs or plans there.
But you can't do it because we lack one little bit of proof. We can't
prove he's connected to a terrorist group or a foreign nation. Sorry.
Can't do it.
So the ``lone-wolf'' gap was fixed by the Intell reauthorization, and
adopted as part of the PATRIOT Act. We need to reauthorize it and
continue it into law.
What the various reports and commissions investigating the 9/11
attacks have shown us thus far is that where our antiterror laws are
concerned, even seemingly little things, minor things--it might seem
like they were OK at the time--can make a big difference, a life and
death difference.
Before September 11, few would have thought that the lack of
authority in FISA for the FBI to monitor and search lone-wolf
terrorists might be decisive as to our ability to stop a major
terrorist attack on U.S. soil. Indeed, that is true. We did not think
about it. We did not think clearly about it.
And before September 11, though there was some attention to the
problems posed by the legal wall between the intelligence-gathering
agencies and the criminal investigative agencies, there was little
sense of urgency to fix those matters. We accepted it. The FBI accepted
it. It was the way you had to do business. You could not violate the
law. I am sorry, you cannot investigate. You cannot participate with
the CIA. Even though you may think he is a terrorist instigator, you
cannot participate because there is a wall that the Congress created.
So at the time, these all seemed like legal technicalities--not real
problems, the kind of problems that could lead to the deaths of
almost 3,000 American citizens.
Today, we face the same challenge--recognizing why it is so important
to fix small gaps in the law that can lead to large consequences and
real-life disasters. Congress must not take the position that enough
time has been passed since 9/11. Congress must not allow the
information wall to be reconstructed by blocking the passage of the
PATRIOT Act, or allow the tools we have given to our terrorism
investigators by the PATRIOT Act to be taken away.
We must pass the PATRIOT Act reauthorization conference report. It is
that simple. It permanently plugs most of the holes that we know
existed in our terrorism laws. The report retains a few sunsets. I do
not think they are necessary. I think they were good, sound changes in
the law. But people are nervous that they might be abused, so they will
automatically sunset if we do not extend them. OK, we will do that. If
that will get some people more comfortable so they will pass this bill,
we will do that.
And the report has a long list of additional civil liberties
protections.
It is a compromise product that came out of our Judiciary Committee,
I believe with a unanimous vote, and with a unanimous vote on the floor
of the Senate, and went to conference. A few changes were made in
conference. But where there were conflicts, overwhelmingly, the
conflicts were decided in favor of the Senate product. And it was that
product that finally hit the floor of the Senate in December. And we
have had this filibuster going ever since. Hopefully, now we are in a
position to end it.
I urge my colleagues to examine the nature of the PATRIOT Act as it
is now configured. Read it carefully. Ask any questions you have. Make
sure you understand what powers police have today in your hometowns all
over America. And do not get confused that some of the things provided
for might sound if--you listen to critics--as if they are new and far-
reaching and utterly dangerous. They are part of everyday law
enforcement--overwhelmingly, they are--and I believe are consistent
with the highest commitment of American citizens to civil liberties.
I would also mention this. There are almost 3,000 people who are no
longer with us today. They have zero civil liberties as a result of the
most vicious and hateful attack on 9/11. That is not an academic
matter. That is a fact. As that FBI agent said: Someday the American
people are not going to understand how we were not able to intercept
and investigate these groups.
Mr. President, I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mr. Coburn). The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I appreciate the Senator from Alabama
joining the debate about the PATRIOT Act. I am going to respond very
briefly to his remarks because I know there are other Senators on the
floor who wish to speak about other issues, and I will defer to them in
a moment.
But the Senator complained that the Senate is enduring another
filibuster on this issue. I suppose that is one way to characterize it.
What I would characterize it as is those of us who have concerns about
this bill are enduring again speech after speech that has absolutely
nothing to do with the issues at hand. That is irrelevant to the
concerns we have raised about the PATRIOT Act.
Throughout his speech, the Senator from Alabama talked about issues
that are not about the concerns we have raised. In fact, again, we are
subjected to this idea that somehow those of us who raise these
concerns are not concerned about what happened to this Nation on 9/11,
that we do not feel exactly as much as the Senator from Alabama the
pain and the tragedy of the loss of those 3,000 lives.
Not a single concern I have raised about this bill would have
anything to do with this Government's ability to crack down on people
who are trying to attack this country. In fact, that is the whole
point. All of the changes we seek are to try to make sure we
distinguish those who are completely innocent and unrelated to the
terrorists from those who, in fact, are involved in espionage or
terrorism.
The Senator talks about academic issues. But these are not academic
issues. The fact is, when he brings up anything specific, he is
changing the subject. He is bringing up noncontroversial issues. He
talks about this wall. I talked about this in my speech before: the
wall between the CIA and FBI. No Member of this body disputes that wall
needed to be taken down. The wall has been taken down. I do not want it
to be put back up. That is not in controversy.
And virtually the entire speech by the Senator from Alabama was about
specific issues--the Midhar case and the Moussaoui case. All of that
part of his speech was about something that is not in controversy. If
he wants to offer that as a bill right now to simply continue that
provision, he can put me down as a cosponsor. So it is completely
irrelevant to what we are discussing and what my concerns are at this
point.
The Senator says that somehow people are running around saying that
the FBI is kicking down people's doors without a warrant. Nobody ever
said that. I understand how the sneak-and-peek provisions work. We have
been on this issue for a while. We know that in sneak and peek there
has to be a warrant.
The question there is not whether there are warrantless searches of
people's homes. The question is, when somebody is allowed, through a
judicial order and a warrant, to come into somebody's house when they
do not get notice of it, how long somebody should have to endure the
possibility that their home has been searched and they
[[Page S1336]]
do not get notice after the fact that somebody came into their house
when they were not there. So again, the argument is entirely unrelated
to the concern.
The concerns we have raised are important, but they are limited. I am
going to insist in this debate that we debate the concerns that we have
put forward.
Finally, Mr. President, I am amused by the Senator talking about how
we passed a bill in the Judiciary Committee by a unanimous vote. You
bet we did. The Senator from Alabama voted for it and I voted for it.
The whole Senate did not oppose the bill. Now every single thing I have
advocated to change in the PATRIOT Act, in terms of the product of this
body, is what I am advocating today. The Senator is acting as if those
are dangerous provisions. Well, he voted for them. He voted for the
stronger standard on 215. He voted for 7 days on the sneak-and-peek
provisions. So how can they be dangerous if the Senator from Alabama
actually voted for those provisions with me in the Judiciary Committee?
These are not dangerous changes. These are not irresponsible changes.
These are not changes that have anything to do with legitimate efforts
to try to stop the terrorists.
I so thank the Senator. I always enjoy debating him. He is the one
Senator who has come down here and engaged on this today. I appreciate
that. But I wish the debate could be about the questions that have
arisen having to do with notice issues in sneak and peek, whether there
is going to be a stronger provision on national security letters,
whether there is going to be a provision on library business records to
make sure it is tied to terrorists. The only reason I am doing this has
to do with those kinds of provisions, not the issues the Senator from
Alabama raised on which I happen to, in large part, agree.
Mr. SESSIONS. If the Senator will yield, I have talked about the
details of this bill and individual complaints the Senator has about
this or that provision in some detail. I will do so again. At this
point, what we are facing is a filibuster of the motion to proceed that
impacts the entire legislation.
I would ask the Senator if the Senator remembers that when the bill
came out of the Senate, it said there would be a 7-day notice if there
were a sneak-and-peek search warrant. The House bill had 180 days
before notice would be given. The conferees moved far to the side of
the Senate and made it a 30-day notice. Is that the basis of the
Senator's desire to filibuster this entire bill, the difference between
7 and 30 days, recognizing in this body we seldom get anything exactly
as we want it?
Mr. FEINGOLD. Mr. President, if the Senator is asking me a question,
I am happy to respond.
The PRESIDING OFFICER. The Senator from Wisconsin controls the time.
Mr. FEINGOLD. I spoke at some length this morning about this issue
which I call the numbers game on the sneak and peek. Of course, the
sneak-and-peek provision is not my only concern. There are four or five
areas. But I am very concerned about the length of time that somebody
does not get notice that the FBI has come into their home without their
being aware of it and the idea that somehow, after very careful court
decisions said there will be exceptions to the requirements of the
fourth amendment for perhaps 7 days--that was the standard in the court
decisions upon which these unusual sneak-and-peek provisions were
based--then to somehow have it become reasonable to have a whole month,
a 30-day period, strikes me as extreme.
The 7-day standard was not picked out of the air. The 7-day standard
was based on those court decisions which made the unusual law, in terms
of our history as a country in the prohibition against unreasonable
searches and seizures--the 7 days was based on those court decisions.
So, yes, 30 days, four times more, is unreasonable.
After the Government has come into somebody's home and they have had
7 days, why is it that they should not have to come back and get
permission to do that for a longer period of time? What is the need for
the Government to have 30 days to not tell somebody to do that, when
you remember that the Senate version you and I both voted for had the
7-day period?
Mr. SESSIONS. Well, we all don't get exactly what we want, I say to
the Senator, No. 1.
No. 2, under current law, the so-called sneak-and-peek search by
which you can, if you are investigating a major criminal enterprise or
a terrorist group, actually conduct a search without actually telling
the person the day you conducted it, the courts allow you as much time
as they choose to allow you, for the most part. Some courts may have
said 7 days. I am not aware at all that is the law in this country. It
is what the judge says. This sets the standard. It says 30 days, and
then they have to be repeated after that.
We have a bill on the floor that is a matter of life and death. I
would ask my colleague to be somewhat more amenable to the fact that he
won a pretty good victory in conference but just didn't get everything
he wanted in conference by going from the House version of 180 down to
30.
Mr. FEINGOLD. Mr. President, I could say: Gee, it went from 180 to
30. I could tell my constituents in Spooner, WI: Look, the Government
is going to come into your home under a special circumstance when you
are not around, and it might not have even been the right house, and we
are making this exception for 7 days because of emergencies in
important situations. You and I both agree in certain circumstances
that might occur. But the idea that for a whole month, that for 30 days
the Government of the United States of America can come into your home
without telling you they have been there, even if they have made a
mistake, and they have no responsibility to tell a completely innocent
person they made a mistake, to me is serious business.
If the Senator could make a credible argument as to why it is
important for the Government to have a whole month after this 7-day
period or 3 more weeks after the 7-day period, it would be one thing.
But nobody has even made the argument that it is important for the
Government to have 30 days to conduct this search. It is essentially an
unreasonable period of time. I think it is important. The erring here
should be on the side of people's liberty. It should be on the side of
people protecting their homes from unreasonable searches and seizures.
It should not be: What is the problem here? The Senator should be happy
he got something better than the House version. I don't accept that, as
somebody who believes the fourth amendment still has meaning.
Mr. BYRD. Mr. President, will the Senator yield?
Mr. FEINGOLD. I yield to the Senator from West Virginia.
Mr. BYRD. Would the Senator yield and let me make a few remarks?
Mr. FEINGOLD. Absolutely.
The PRESIDING OFFICER. Does the Senator yield his time?
Mr. FEINGOLD. I yield my time.
Mr. LEAHY. Mr. President, I don't want to interfere with the Senator.
I see quite a few pages of remarks there. I don't want to interfere
with that, but I understood the Senator from Virginia and the Senator
from Arkansas were going to introduce legislation, to be followed by
remarks of mine on the bill before us in my capacity as the ranking
member of the Senate Judiciary Committee, which has jurisdiction over
this piece of legislation. My remarks will only be 5 or 6 minutes, but
I wish to make them now or as soon as the Senators from Virginia and
Arkansas have finished.
Mr. WARNER. Mr. President, there had been an informal agreement among
colleagues, subject to the Senator who is principally on the floor at
this point in time--and I will let him speak for himself--that we were
going to introduce a bill. It would take 4 or 5 minutes for my remarks
and 4 or 5 for the Senator from Arkansas. We were intending to do that
at the conclusion of the colloquy between Senators Feingold and
Sessions.
Am I correct on that, the Senator had indicated that we could
proceed?
Mr. FEINGOLD. Certainly, I had no objection to that.
The PRESIDING OFFICER. There is no recognized time agreement by the
Chair at this time.
Mr. WARNER. Then I make a unanimous consent request that the Senator
from Arkansas and I have 15 minutes equally divided, to be followed by
Senator Leahy for such time as he may
[[Page S1337]]
need and then the distinguished Senator from West Virginia.
The PRESIDING OFFICER. Is there objection to the unanimous consent
request?
Mr. BYRD. Mr. President, reserving the right to object--I do not
intend to object--I need to complete my remarks by 4:35. I have about
20 minutes here.
Mr. WARNER. Then I revise the request. The Senator from Arkansas and
I can drop to, say, 10 minutes, and 5 minutes for the Senator from
Vermont. Well, let's drop it down to 8 minutes----
Mr. LEAHY. I would need about 6 minutes. And that is cutting down a
half-hour speech to accommodate the Senator from West Virginia, but I
have been here for a couple hours ready to give this speech.
Mr. BYRD. Mr. President, I have waited many hours here many times. I
never make a fuss about it. I will just leave the floor and----
Mr. WARNER. Mr. President, before the Senator leaves, what amount of
time would the senior Senator from West Virginia like?
Mr. BYRD. I have 61 pages, large type. But that will take about 20
minutes--15, I think.
Mr. LEAHY. I have 5 or 6 pages of large type.
Mr. BYRD. My problem is, I need to get through by 4:30 or 4:35.
Mr. WARNER. Mr. President, I would suggest to my distinguished
colleague from Arkansas, recognizing that Senator Byrd has an
extenuating circumstance he has to take care of, I would be perfectly
willing to step aside and regain into the queue following the Senator.
Mr. BYRD. The Senator is more than generous and more than kind.
Mr. LEAHY. The understanding is that I will be done by 4:15 to
accommodate the Senator from West Virginia.
Mr. FEINGOLD. Mr. President, reserving the right to object, I ask to
be recognized at the completion of the Senator's speech.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, last week, the Judiciary Committee held an
important hearing. That hearing should be the beginning of the process
of congressional oversight into what has been called ``the President's
program.'' This is a domestic spying program into emails and telephone
calls of Americans without a judge's approval, apparently conducted by
the National Security Agency. Having participated in the hearing and
reviewed the transcript of the Attorney General's testimony, I
understand the fear that this administration is engaged in an elaborate
cover-up of illegality. I urge them to come clean with us and the
American people.
Perhaps their recent change of course and briefings with the full
Intelligence Committees of the Senate and House will be a start. We
need the whole truth not self-serving rationalizations. Since our
hearing the Bush administration has had to adjust its course. That is
good. They have had to acknowledge that they cannot simply ignore
Congress and keep us in the dark about this illegal spying program. The
classified briefings of the Intelligence Committees are a first step
but cannot be used to cover up the facts through secrecy and arbitrary
limitations. That is unacceptable. This domestic spying program has
raised serious concern, not only among Democrats and Republicans here
in Congress, but also among the Federal judges providing oversight over
terrorist surveillance and even high-ranking Justice Department
officials.
I commend Chairman Specter for beginning this investigation. He and I
have a long history of conducting vigorous bipartisan oversight
investigations. If the Senate is to serve its constitutional role as a
real check on the Executive, thoroughgoing oversight is essential.
Today, Chairman Specter has announced a second Judiciary Committee
hearing will be held on February 28. We expect by then to have received
answers to the written questions that have already been sent to the
Attorney General.
The question facing us is not whether the Government should have all
the tools it needs to protect the American people. Of course it should.
The terrorist threat to America's security remains very real, and it is
vital that we be armed with the tools needed to protect Americans'
security. That is why I coauthored the PATRIOT Act 5 years ago. That is
why we have amended the Foreign Intelligence Surveillance Act five
times since 9/11 to provide more flexibility.
And that is why within days of the despicable attacks we passed the
Authorization for the Use of Military Force on September 14, 2001, to
send the United States Armed Forces into Afghanistan to get those who
planned and carried out the vicious attacks on September 11.
We all agree that we should be wiretapping al-Qaida terrorists.
Congress has given the President authority to wiretap legally, with
checks to guard against abuses when Americans' conversations and email
are being monitored. But instead, the President has chosen to proceed
outside the law, without those safeguards. He has done so in a way that
is illegal and illogical. It remains confusing that the Attorney
General testified last week that the Bush administration has limited
``the President's program'' of illegal wire taps to calls with an
international component.
The administration's rationale is not limited to calls and emails
with an international component or to know al-Qaida operatives.
It sounded at our hearing as if what the Bush Attorney General and
former White House counsel was saying is that this particular
``program'' is limited because they were afraid of public outrage. The
Attorney General said as much to Senator Kohl and confirmed to Senator
Biden that the Bush administration does not suggest that the
President's powers are limited by the Constitution to foreign calls.
Their descriptions of the President's program seem to have more to do
with public relations than anything else. It was even branded with a
new name in the last few days after it has been known for years as
simply ``the President's program.''
Senator Feinstein was right to observe after the Attorney General
dodged and weaved and would not directly answer her questions: ``I can
only believe--and this is my honest view--that this program is much
bigger and much broader than you want anyone to know.'' The Attorney
General's strenuous efforts to limit the hearing to ``those facts the
President has publicly confirmed'' and ``the program that I am here
testifying about today'' suggest that all of us must be skeptical about
the secret games the Attorney General was playing through controlling
the definition of ``the program'' to include only what he understood to
exist at the beginning of last week. Senator Feinstein was not fooled.
None of us should be. Such limiting definitions are what the Bush
Administration used to redefine ``torture'' in order to say that we do
not engage in ``torture'' as they redefined it. These are the word
games of coverup and deception. It is not al-Qaida surprised that our
Government eavesdrops on its telephone calls and emails. Al-Qaida knows
that we eavesdrop and wiretap. It is the American people who are
surprised and deceived by the President's program of secret
surveillance on them without a judge's approval for the last 5 years--
especially, after the Attorney General, the Justice Department, the
head of the NSA and the President have all reassured the American
people over and over that their rights are being respected--when they
are not.
I wish the President had effectively utilized the authority Congress
did grant in the Authorization for the Use of Military Force in
September 2001 to get Osama bin Laden and those responsible for the
terrible attacks on September 11. That resolution was what it said it
was, authorization to send troops to Afghanistan to get those
responsible for 9/11. President Bush should have gotten Osama bin Laden
when Congress authorized him to use our military might against al-Qaida
in 2001 in Afghanistan. Instead of pursuing him to the end, he pulled
our best forces out of the fight and diverted them to preparing for his
invasion of Iraq.
Last week the Attorney General left key questions unanswered and left
impressions that are chilling. Under his approach, there is no limit to
the power the President could claim for so long as we face a threat of
terrorism.
[[Page S1338]]
That is a real threat, which we have long faced and will continue to
face for years if not decades toe. The Attorney General's testimony
only hinted at the full dimensions of the Bush administration's
illegality. He would not reassure us that Americans' domestic calls,
emails, or first class mail have not been illegally spied upon.
He sought to choose his words carefully to say that he was only
willing to speak about the President's ``program'' as it existed that
day. That means we do not yet know the full dimensions of the program
as it has evolved over time from 2001 to today. That means we do not
know what other illegal activities the Bush administration is still
endeavoring to hide from us.
Along with other Senators I asked about the lack of any limit to the
legal rationale the Bush administration has embraced. Their
rationalization for their actions is rationalization for any action.
Under their view of the President's power, he can order houses and
businesses searched without a warrant. Americans can be detained
indefinitely. Detainees can be tortured. Property could be seized.
Their rational is a prescription for lawlessness and the opposite of
the rule of law.
Regrettably, the Attorney General's testimony last week left much to
be desired. He did not provide convincing answers to basic questions,
relevant information or the relevant underlying documents. Facts are a
dangerous thing in a coverup. They are seeking to rewrite history and
the law and control the facts that Congress can know.
The Bush administration refusal to provide the contemporaneous
evidence of what the Congress and the Bush administration were
indicating to each other regarding what the Authorization for the Use
of Military Force was intended to mean, speaks volumes. Does anyone
think that if they had any evidence in support of their after-the-fact
rationalization they would hesitate to provide it, to trumpet it from
the highest media mountain? Of course not.
Their failure to provide the information we asked for is not based on
any claim of privilege, nor could it be. It is just a deafening,
damning silence. So what is so secret about precisely when they came to
this legal view, this rationalization of their conduct? Could it have
come after the illegal conduct had been initiated? Could it have come
after the President sought to immunize and sanitize the illegal
conduct? Could it have come months or years later than the impression
Attorney General Gonzales is attempting to create? Is that why the Bush
administration is also refusing to provide to us the formal legal
opinions of our Government, the binding opinions of the Office of Legal
Counsel from 2001 and 2004 that we have also requested? Would review of
those opinions show that the after-the-fact legal rationalizations
changed over time and in 2001 were not those that the Attorney General
has repackaged for public consumption in their current public relations
campaign? Now that we know of the existence of the years-old secret
domestic spying program that included the warrantless wiretapping of
thousands of Americans, the Bush administration says that we should
just trust them. That is a blind trust this administration has not
earned. We have seen this administration's infamous and short-lived
``Total Information Awareness'' program and know how disastrous the
FBI's Carnivore and Trilogy computer programs have been.
I have read recent reports of a secret Pentagon database containing
information on a wide cross-section of ordinary Americans, including
Quakers meeting in Florida and Vermont, and have gotten no satisfactory
explanation of the Defense Department's Counterintelligence Field
Activities that spy on law-abiding Americans. I read about a secret
Homeland Security database and datamining activities, as well. Today we
read about another database with the names of more than 325,000
terrorists but we do not know how many are Americans, how many are
listed incorrectly or how the mistakes will be corrected.
There are new and disturbing reports that the Defense Department and
the FBI have been monitoring U.S. advocacy groups working on behalf of
civil rights or against the continuing occupation of Iraq.
This is all too reminiscent of the dark days when a Republican
President compiled enemies lists and eavesdropped on political
opponents and broke into doctors offices and used the vast power of the
executive branch to violate the constitutional rights of Americans.
That President resigned in disgrace after articles of impeachment were
reported in the House of Representatives.
I was first elected to the Senate in the aftermath of Watergate and
the White House ``plumbers'' and the illegality that led to the
impeachment inquiry of President Nixon. The Foreign Intelligence
Surveillance Act was passed in 1978 as part of the reform and reaction
to those abuses. It was enacted after decades of abuses by the
Executive, including the wiretapping of Dr. Martin Luther King, Jr.,
and other political opponents of earlier Government officials.
It was enacted after the White House ``horrors'' of the Nixon years,
during which another President asserted that whatever he did was legal
because he was the President. The law has been extensively updated in
accordance with the Bush administration's requests in the aftermath of
9/11 and has been modified further in the last 4 years. It is the
governing law. The rule of law and freedoms we enjoy as Americans are
principles upon which this Nation was founded and what we are defending
and fighting for abroad. This type of covert spying on American
citizens and targeted groups on American soil betrays those principles
and it is unacceptable.
What happens to the rule of law if those in power abuse it and only
adhere to it selectively? What happens to our liberties when the
government decides it would rather not follow the rules designed to
protect our rights? What happens is that the terrorists are allowed to
achieve a victory they could never achieve on the battlefield. We must
not be intimidated into abandoning our fundamental values and treasured
freedoms. We cannot let them scare us into giving up what defines us as
Americans.
There can be no accountability unless the Republican Congress begins
to do its job and joins with us to demand real oversight and real
answers. Senators take an oath of office, too. We swear to support and
defend the Constitution of the United States, to bear true faith and
allegiance to it, and to faithfully discharge our duties so help us
God. Let each Senator fulfill that pledge and the Senate can resume its
intended place in our democracy.
Let us protect our national security and the national heritage of
liberty for which so many have given so much.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. BYRD. Mr. President, I thank the distinguished Senator from
Vermont for his characteristic kindness and courtesy. I thank the
distinguished Senator who has been alone in opposing this act in the
beginning, at a time when I wish I had voted as he did.
In June 2004, 10 peace activists outside of Halliburton, Inc., in
Houston gathered to protest the company's war profiteering. They wore
paper hats and were handing out peanut butter and jelly sandwiches,
calling attention to Halliburton's overcharging on a food contract for
American troops in Iraq.
Unbeknownst to them, they were being watched. U.S. Army personnel at
the top secret Counterintelligence Field Activity, or CIFA, saw the
protest as a potential threat to national security.
CIFA was created 3 years ago by the Defense Department. Its official
role is forced protection; that is, tracking threat and terrorist plots
against military installations and personnel inside the United States.
In 2003, then Deputy Defense Secretary Paul Wolfowitz authorized a
fact-gathering operation code named TALON, which stands for Threat and
Local Observation Notice, which would collect raw information about
suspicious incidents and feed it to CIFA.
In the case of the ``peanut butter'' demonstration, the Army wrote a
report on the activity and stored it where? In its files. Newsweek
magazine has reported that some TALON reports may have contained
information on U.S. citizens that has been retained in Pentagon files.
A senior Pentagon official has admitted that the names of these U.S.
citizens could number in the thousands. Is this where we are heading?
Is this where we are heading in
[[Page S1339]]
this land of the free? Are secret Government programs that spy on
American citizens proliferating? The question is not, is Big Brother
watching? The question is, how many big brothers have we?
Ever since the New York Times revealed that President George W. Bush
has personally authorized surveillance of American citizens without
obtaining a warrant, I have become increasingly concerned about dangers
to the people's liberty. I believe that both current law and the
Constitution may have been violated, not just once, not twice, but many
times, and in ways that the Congress and the American people may never
know because of this White House and its penchant for control and
secrecy.
We cannot continue to claim we are a nation of laws and not of men if
our laws, and indeed even the Constitution of the United States itself,
may be summarily breached because of some determination of expediency
or because the President says, ``Trust me.''
The Fourth Amendment reads clearly:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
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.
The Congress has already granted the executive branch rather
extraordinary authority with changes in the Foreign Intelligence
Surveillance Act that allow the Government 72 hours after surveillance
has begun to apply for a warrant. If this surveillance program is what
the President says it is, a program to eavesdrop upon known terrorists
in other countries who are conversing with Americans, then there should
be no difficulty in obtaining a warrant within 72 hours. One might be
tempted to suspect that the real reason the President authorized
warrantless surveillance is because there is no need to have to bother
with the inconveniences of probable cause. Without probable cause as a
condition of spying on American citizens, the National Security Agency
could, and can, under this President's direction, spy on anyone, and
for any reason.
How do you like that? How about that? We have only the President's
word, his ``trust me,'' to protect the privacy of the law-abiding
citizens of this country. One must be especially wary of an
administration that seems to feel that what it judges to be a good end
always justifies any means. It is, in fact, not only illegal under our
system, but it is morally reprehensible to spy on citizens without
probable cause of wrongdoing.
When such practices are sanctioned by our own President, what is the
message we are sending to other countries that the United States is
trying to convince to adopt our system? It must be painfully obvious
that a President who can spy on any citizen is very unlike the model of
democracy the administration is trying to sell abroad.
In the name of ``fighting terror,'' are we to sacrifice every freedom
to a President's demand? How far are we to go? Can a President order
warrantless, house-to-house searches of a neighborhood where he
suspects a terrorist may be hiding? Can he impose new restrictions on
what can be printed, what can be broadcast, what can be uttered
privately because of some perceived threat--perceived by him--to
national security? Laughable thoughts? I think not.
This administration has so traumatized the people of this Nation, and
many in the Congress, that some will swallow whole whatever rubbish
that is spewed from this White House, as long as it is in some tenuous
way connected to the so-called war on terror. And the phrase ``war on
terror,'' while catchy, certainly is a misnomer. Terror is a tactic
used by all manner of violent organizations to achieve their goal. This
has been around since time began and will likely be with us until the
last day of planet Earth.
We were attacked by bin Laden and by his organization, al-Qaida. If
anything, what we are engaged in should more properly be called a war
on the al-Qaida network. But that is too limiting for an administration
that loves power as much as this one. A war on the al-Qaida network
might conceivably be over someday. A war on the al-Qaida network might
have achievable, measurable objectives, and it would be less able to be
used as a rationale for almost any Government action. It would be
harder to periodically traumatize the U.S. public, thereby justifying a
reason for stamping ``secret'' on far too many Government programs and
activities.
Why hasn't Congress been thoroughly briefed on the President's secret
eavesdropping program, or on other secret domestic monitoring programs
run by the Pentagon or other Government entities? Is it because keeping
official secrets prevents annoying congressional oversight? Revealing
this program in its entirety to too many Members of Congress could
certainly have unmasked its probable illegality at a much earlier date,
and may have allowed Members of Congress to pry information out of the
White House that the Senate Judiciary Committee could not pry out of
Attorney General Gonzales, who seemed generally confused about for whom
he works--the public or his old boss, the President.
Attorney General Gonzales refused to divulge whether purely domestic
communications have also been caught up in this warrantless
surveillance, and he refused to assure the Senate Judiciary Committee
and the American public that the administration has not deliberately
tapped Americans' telephone calls and computers or searched their homes
without warrants. Nor would he reveal whether even a single arrest has
resulted from the program.
What about the first amendment? What about the chilling effect that
warrantless eavesdropping is already having on those law-abiding
American citizens who may not support the war in Iraq, or who may
simply communicate with friends or relatives overseas? Eventually, the
feeling that no conversation is private will cause perfectly innocent
people to think carefully before they candidly express opinions or even
say something in jest.
Already we have heard suggestions that freedom of the press should be
subject to new restrictions. Who among us can feel comfortable knowing
that the National Security Agency has been operating with an expansive
view of its role since 2001, forwarding wholesale information from
foreign intelligence communication intercepts involving American
citizens, including the names of individuals to the FBI, in a departure
from past practices, and tapping some of the country's main
telecommunication arteries in order to trace and analyze information?
The administration could have come to Congress to address any aspects
of the FISA law in the revised PATRIOT Act which the administration
proposed, but they did not, probably because they wished the completely
unfettered power to do whatever they pleased, the laws and the
Constitution be damned.
I plead with the American public to tune in to what is happening in
this country. Please forget the political party with which you may
usually be associated and, instead, think about the right of due
process, the presumption of innocence, and the right to a private life.
Forget the now tired political spin that if one does not support
warrantless spying, then one may be less than patriotic.
Focus on what is happening to truth in this country and then read
President Bush's statement to a Buffalo, NY, audience on April 24,
2004:
Any time you hear the United States Government talking
about wiretap, it requires--a wiretap requires a court order.
Nothing has changed, by the way. When we are talking about
chasing down terrorists, we are talking about getting a court
order before we do so.
That statement is false, and the President knew it was false when he
made it because he had authorized the Government to wiretap without a
court order shortly after the 2001 attacks.
This President, in my judgment, may have broken the law and most
certainly has violated the spirit of the Constitution and the public
trust.
Yet I hear strange comments coming from some Members of Congress to
the effect that, well, if the President has broken the law, let's just
change the law. That is tantamount to saying that whatever the
President does is legal, and the last time we heard that claim was from
the White House of Richard M. Nixon. Congress must rise to the occasion
and demand answers to the serious questions surrounding warrantless
[[Page S1340]]
spying. And Congress must stop being spooked by false charges that
unless it goes along in blind obedience with every outrageous violation
of the separation of powers, it is soft on terrorism. Perhaps we can
take courage from the American Bar Association which, on Monday,
February 13, denounced President Bush's warrantless surveillance and
expressed the view that he had exceeded his constitutional powers.
There is a need for a thorough investigation of all of our domestic
spying programs. We have to know what is being done by whom and to
whom. We need to know if the Federal Intelligence Surveillance Act has
been breached and if the Constitutional rights of thousands of
Americans have been violated without cause. The question is: Can the
Congress, under control of the President's political party, conduct the
type of thorough, far-ranging investigation which is necessary. It is
absolutely essential that Congress try because it is vital to at least
attempt the proper restoration of the checks and balances.
Unfortunately, in a Congressional election year, the effort will most
likely be seriously hampered by politics. In fact, today's Washington
Post reports that an all-out White House lobbying campaign has
dramatically slowed the congressional probe of NSA spying and may kill
it.
I want to know how many Americans have been spied upon. Yes, I want
to know how it is determined which individuals are monitored and who
makes such determinations. Yes, I want to know if the
telecommunications industry is involved in a massive screening of the
domestic telephone calls of ordinary Americans like you and me. I want
to know if the U.S. Post Office is involved. I want to know, and the
American people deserve to know, if the law has been broken and the
Constitution has been breached.
Historian Lord Acton once observed that:
Everything secret degenerates, even the administration of
justice; nothing is safe that does not show how it can bear
discussion and publicity.
The culture of secrecy, which has deepened since the attacks on
September 11, has presented this Nation with an awful dilemma. In order
to protect this open society, are we to believe that measures must be
taken that in insidious and unconstitutional ways close it down? I
believe that the answer must be an emphatic ``no.''
I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I ask unanimous consent to be recognized
at the conclusion of the remarks of the Senator from Virginia and the
Senator from Arkansas.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Virginia is recognized.
Mr. WARNER. I thank the Chair.
(The remarks of Mr. Warner and Mr. Pryor pertaining to the
introduction of S. 2290 are printed in today's Record under
``Statements on Introduced Bills and Joint Resolutions.'')
Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. STABENOW. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Mr. LEAHY. Mr. President, as one of the authors of the original USA
PATRIOT Act, as someone who voted to reauthorize an improved version of
the act back in July 2005, and as an American concerned with our
security, I am glad that we are making progress, but I have some
misgivings about the bill being considered today. I will vote to
proceed and hope there is an opportunity to improve the bill and the
PATRIOT Act reauthorization even further.
I believe that the PATRIOT Act provides important and valuable tools
for the protection of Americans from terrorism. These matters should be
governed by law and not by whim. Legislative action should be the clear
and unambiguous legal footing for Government powers.
I am glad that the sunsets that Congressman Armey and I insisted be
included in the 2001 act brought about reconsideration and some
refinement of the powers authorized in that measure. Those sunsets
contributed to congressional oversight. Without them I expect the Bush
administration would have stonewalled our requests for information and
for review of the way they were implementing the statute. The sunsets
were the reason we have been going through a review and renewal process
over the last few months. Now the challenge to Congress is to provide
the effective oversight that will be needed in the days ahead and to
ensure that there is effective court review of actions that affect the
rights of Americans.
Several specific provisions of this bill reflect modest improvement
over both the original PATRIOT Act and the reauthorization proposal
initially produced by the House-Senate conference. It is with these
improvements in mind that I will support Senator Sununu's bill.
These improvements, like those contained in the conference report,
were hard won. The Bush administration pursued its usual strategy of
demanding sweeping Executive powers and resisting checks and balances.
As usual, it was short on bipartisan dialogue and long on partisan
rhetoric. And as usual, the Republican majorities in the House and
Senate did their utmost to follow the White House's directives and
prevent any breakout of bipartisanship. But a ray of bipartisanship did
break out, and this reauthorization package is the better for it.
Senator Sununu's bill modifies a provision I objected to that would
have required American citizens to tell the FBI before they exercise
their right as Americans to seek the advice of counsel. Chairman
Specter and I worked together to correct this provision and Senator
Sununu has improved it further. I commend his efforts in this regard.
Another important change provided by the Sununu bill builds upon
another objection I had and an idea I shared with him to ensure that
libraries engaged in their customary and traditional activities not be
subject to national security letters as Internet service providers.
This is a matter I first raised and feel very strongly about. I commend
Senator Sununu for the progress he has been able to make in this
regard. The bill is intended to clarify that libraries as they
traditionally and currently function are not electronic service
providers, and may not be served with NSLs for business records simply
because they provide Internet access to their patrons. Under this
clarification, a library may be served with an NSL only if it functions
as a true Internet service provider, as by providing services to
persons located outside the premises of the library, but this is an
unlikely scenario. In most if not all cases, if the Government wants to
review library records for foreign intelligence purposes, it will need
a court order to do so. The language I proposed to Senator Sununu in
this regard was less ambiguous than that to which the Bush
administration would agree. Still, my intent, Senator Sununu's intent,
and the intent of Congress in this regard should be clear. It is to
strengthen the meaning and ensure proper implementation of this
provision that I will support this bill. As a supporter, I trust my
intent will inform those charged with implementing the bill and
reviewing its proper implementation.
It is regrettable that the Bush administration would not engage all
of us in a bipartisan conversation on ways we could improve the bill.
The White House Counsel only spoke to the Republican Senators. In that
setting, they negotiated to achieve what they viewed as improvements.
It is less than we would have liked. I know that the Republican
Senators who worked on this bill were well intentioned and I commend
their efforts. Regrettably, I note that one set of changes included in
this bill I strongly oppose.
The Bush administration has used the last round of discussions with
Republican Senators to make the gag order provisions worse, in my view,
by forbidding any challenge for one year. The Bush administration has
simply refused to listen to reason on this and insists on this thumb on
the scale of justice. In addition, the bill continues and cements into
law procedures that, in my view, unfairly determine challenges to gag
orders. The bill allows the Government to ensure itself of victory by
declaring that, in its view, disclosure ``may'' endanger national
security or ``may'' interfere with diplomatic relations. This is the
type of provision to which I have never agreed in connection with
national security letters or section 215 orders. It will serve to
prevent meaningful judicial review of gag orders and, in my view, is
wrong.
I will continue to work to improve the PATRIOT Act. I will work to
provide better oversight of the use of national security letters and to
remove the un-American restraints on meaningful judicial review. I will
seek to monitor how sensitive personal information from medical files,
gun stores, and libraries are obtained, used, and retained. While we
have made some progress, much is left to be done.
In 2001, I fought for time to provide some balance to Attorney
General Ashcroft's demands that the Bush administration's antiterrorism
bill be enacted in a week. We worked hard for 6 weeks to make that bill
better and were able to include the sunset provisions that contributed
to reconsideration of several provisions over the last several months.
Last year I worked with Chairman Specter and all the members of the
Judiciary Committee and the Senate to pass a reauthorization bill in
July. As we proceeded into the House-Senate conference on the measure,
the Bush administration and congressional Republicans locked Democratic
conferees out of their deliberations and wrote the final bill.
[[Page S1343]]
That was wrong. In December, working with a bipartisan group of
Senators, we were able to urge reconsideration of that final bill.
Senators Sununu and Craig were able to use that opportunity to make
some improvements. I commend them for what they were able to achieve
and hope that my support for their efforts has been helpful. I wish
that along the way the Bush administration had shown a similar interest
in working together to get to the best law we could for the American
people. When the public's security and liberty interests are at stake,
it seems especially prudent and compelling to me that every effort
should be made to proceed on a bipartisan basis toward constructive
solutions. Instead, the White House has chosen once again to try to
politicize the situation.
Since the conference was hijacked, I have tried to get this measure
back on the right track. We have been able to achieve some
improvements, and that is no small feat given the resistance by this
White House to bipartisan suggestions. I regret that this bill is not
better and that the intransigence of the Bush administration has
prevented a better balance and better protections for the American
people. I will continue to work to provide the tools that we need to
protect the American people. I will continue to work to provide the
oversight and checks needed on the use of Government power and will
seek to improve this reauthorization of the PATRIOT Act.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. I understand an agreement has been reached to have the
cloture vote on the motion to proceed tomorrow morning and then a
cloture vote on the bill on that Tuesday after we return from the
recess.
I point out the agreement essentially implements the schedule that
would have been followed had I required the Senate to go through all
the procedural hoops necessary to reach a vote on the White House deal.
It, of course, maintains the 60-vote threshold for passing this
legislation.
I thank the two leaders for working with me. I have no desire to
inconvenience my colleagues or force votes in the middle of the night,
as I understand the majority leader was threatening.
I have been trying all day to get an agreement to allow debate and
votes on a small number of amendments to this bill. I do not understand
what the majority leader is afraid of or concerned about in rejecting
this reasonable request. So while I do not object to the agreement that
will be propounded in a few minutes, I hope once we are on the bill
tomorrow, I will be able to offer amendments and have them voted on.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FRIST. Mr. President, we are at a continuation of a sequence of
events which has resulted in a lot of delay, a lot of postponement,
really reflecting these insufferable attempts to put off the Nation's
business with obstruction and stalling. It is disturbing to me because
we have so many issues to address in securing America's future,
securing America's future in terms of security, securing America's
future when it comes to looking at health care issues, education
issues, securing America's prosperity as we look at competition and
innovation and things we can do to invest in math and science
education, and making us more competitive and creating jobs with
respect to China and India.
There are so many issues, many of which were outlined by the
President of the United States in the State of the Union Address. Yet
we are going through this stall ball, which is reflected now on the
PATRIOT Act, where we have the PATRIOT Act reauthorization being
filibustered by the Democrats, which started in December when we had a
filibuster on the reauthorization, and the filibuster now on the motion
to proceed. Now, with that continued postponement and filibuster, there
is no way to complete this reauthorization of the PATRIOT Act before we
go on recess. There is no way to do it using the tools of the Senate,
using the tools of the filibuster.
And a filibuster I can understand if you are shaping the bill or if
the outcome is not absolutely predetermined. But the outcome here is
absolutely predetermined. There will be overwhelming support in this
body for this bill. It is important to the safety and security of the
American people. It breaks down barriers between the intelligence
community and our law enforcement community, and it does so protecting
the civil liberties of Americans.
There is overwhelming support. The outcome is determined. Yet we have
been in a quorum call for most of the day, and using the rules of the
Senate. Again, people say: Well, if it is a filibuster, why aren't
people talking all the time? With the rules of the Senate, you do not
have to be talking, but you control the Senate in terms of time. With
that, we are able to file cloture motions, and then you wait another 30
hours, and it is a series of cloture motions, which stretches the time
out, again, really wasting precious time on the floor of the Senate
when we should be governing, answering, responding to the problems of
everyday Americans, the challenges of everyday Americans.
Looking at what we have gone through recently, for example, the
pensions bill, we passed the pensions bill on November 16, 2005, with a
vote of 97 to 2, overwhelming support. I asked the Democrats to appoint
conferees on December 15 of last year. I asked them to appoint
conferees again, renewing that request on February 1. I have been in
continued conversation and discussions with the Democratic leadership.
Again: Not yet, postponement. We know the issues pertaining to the
pensions bill. We can't respond until we can get to conference. The
House is ready with conferees, but we can't go to conference until we
appoint conferees. Yet once again, those names are not given.
I have been in discussion with the Democratic leader. I understand we
will be able to appoint conferees in the next 24 hours or so. But it is
the pattern of postponement, delay, obstruction, and stopping the
Nation's business that disturbs me.
The asbestos bill, I said long ago that we would spend this period on
asbestos. We were forced by the other side of the aisle to file cloture
on the motion to proceed just to get on that bill, a bill that does
address victims who are suffering from asbestos-related disease and who
are not being compensated fairly. We voted in favor of cloture 98 to 1.
Then we had delayed consideration of the bill by 3 days by forcing
cloture, and then we had insistence on a day of debate only--again,
postponement.
The Alito nomination ended up being successful; the advice and
consent was carried out. But once again, there was a week delay beyond
which we had worked out a time line before we could bring the Alito
nomination to the floor.
Earlier this week and over the last couple of weeks, we have had to
deal with the tax reconciliation bill to go to conference. The
Democrats forced the Senate to consider the bill three separate times
just to get to conference. We had 20 hours of debate the first time,
with 17 rollcall votes, and then we had another 20-hour limitation,
with 7 more rollcall votes. Then we had a series of votes yesterday
morning on motions to instruct before we get to conference. All of that
didn't change the bill at all. These are nonbinding motions to
instruct--but again, another manifestation of stalling, postponing,
delaying.
It is frustrating because whether it is the tax relief bill or the
Alito nomination or the asbestos bill or the pensions bill or, now, the
PATRIOT Act, it is a pattern that, if we are going to be working
together in the Nation's interest, we cannot continue over the course
of the year; otherwise, we will not get anything done when we do have
challenging problems with health care costs too high, things that we
can do on education in terms of math and science, making our country
and our students more competitive in the future, addressing issues
surrounding funding our military.
So with that, I plead to my colleagues on both sides of the aisle to
work together to make progress. Let's be doing what we are supposed to
be
[[Page S1344]]
doing and that is governing in the Nation's interest.
Mr. President, I ask unanimous consent that the cloture vote on the
pending motion to proceed occur at 10:30 a.m. tomorrow with the
mandatory quorum waived; provided further that if cloture is invoked,
notwithstanding rule XXII, the Senate proceed immediately to the bill;
I further ask consent that if a cloture motion is filed on the bill
during Thursday's session, then that cloture vote occur at 2:30 p.m. on
Tuesday, February 28; provided further that if cloture is invoked on
the bill, then at 10 a.m. on Wednesday, March 1, the bill be read a
third time and the Senate proceed to a vote on the bill with no
intervening action or debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
