[Congressional Record: February 16, 2006 (Senate)]
[Page S1377-S1379]
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 legislative clerk read as follows:
Motion to proceed to the consideration of 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. Under the previous order, the time until 10:30
is equally divided between the two leaders or their designees.
The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Madam President, the upcoming cloture vote on the
motion to proceed to S. 2271, introduced by my friend Senator Sununu,
is the first opportunity for my colleagues to go on record on whether
they will accept the White House deal on PATRIOT Act reauthorization.
Back in December, 46 Senators voted against cloture on the conference
report. I think it's clear by now that the deal makes only minor
changes to that conference report. The Senator from Pennsylvania,
chairman of the Judiciary Committee and primary proponent of the
conference report in this body, was quoted yesterday as saying that the
changes that the White House agreed to were ``cosmetic.'' And then he
said, according to the AP, ``But sometimes cosmetics will make a beauty
out of a beast and provide enough cover for senators to change their
vote.''
The Senator from Alabama said on the floor yesterday: ``They're not
large changes, but it made the Senators happy and they feel comfortable
voting for the bill today.'' I agree with both of my adversaries on
this bill that the changes were minor and cosmetic. I explained that at
length yesterday, and no one else other than Senator Sununu came down
to the floor to defend the deal.
Some of my colleagues have been arguing, however, that we should go
along with this deal because the conference report, as amended by the
Sununu bill, improves the PATRIOT Act that we passed 4\1/2\ years ago.
It's hard for me to understand how Senators who blocked the
conference report in December can now say that it's such a great deal.
It's not a great deal--the conference report is just as flawed as it
was 2 months ago. No
[[Page S1378]]
amount of cosmetics is going to make this beast look any prettier. That
said, let me walk through some of the provisions of the conference
report that are being touted as improvements to the original PATRIOT
Act.
First, there's the issue that was the linchpin of the bill the Senate
passed without objection in July of last year, that of course is the
standard for obtaining business records under Section 215. Section 215
gives the Government extremely broad powers to secretly obtain people's
business records. The Senate bill would have required that the
Government prove to a judge that the records it sought had some link to
suspected terrorists or spies or their activities. The conference
report does not include this requirement. Now, the conference report
does contain some improvements to section 215, at least around the
edges. It contains minimization requirements, meaning that the
executive branch has to set rules for whether and how to retain and
share information about U.S. citizens and permanent residents obtained
from the records. And it requires clearance from a senior FBI official
before the Goverment can seek to obtain particularly sensitive records
like library, gun and medical records. But the core issue with section
215 is the standard for obtaining these records in the first place.
Neither the minimization procedures nor the high level signoff
changes the fact that the Government can still obtain sensitive
business records of innocent, law-abiding Americans. The standard in
the conference report--``relevance''--will still allow Government
fishing expeditions. That is unacceptable. And the Sununu bill does not
change that.
Next, let me turn to judicial review of these section 215 orders.
After all, if we are going to give the Government such intrusive
powers, we should at least let people go to a judge to challenge the
order. The conference report does provide for this judicial review. But
it would require that the judicial review be conducted in secret, and
that Government submissions not be shared with the challenger under any
circumstances, without regard for whether there are national security
concerns in any particular case. This would make it very difficult for
a challenger to get meaningful judicial review that comports with due
process.
And the Sununu bill does not address this problem.
What we have are very intrusive powers, very limited judicial
review--and then, on top of it, anyone who gets a section 215 order
can't even talk about it. That's right--they come complete with an
automatic, indefinite gag order. The new ``deal'' supposedly allows
judicial review of these gag orders, but that's just more cosmetics. As
I explained yesterday, the deal that was struck does not permit
meaningful judicial review of these gag orders. No judicial review is
available for the first year after the 215 order has been issued. Even
when the right to judicial review does finally kick in, the challenger
has to prove that the Government acted in bad faith. We all know that
is a virtually impossible standard to meet.
The last point on section 215 is that the conference report, as
amended by Sununu bill, now explicitly permits recipients of these
orders to consult with attorneys, and without having to inform the FBI
that they have done so. It does the same thing with respect to national
security letters. This is an important clarification, but keep in mind
that the Justice Department had already argued in litigation that the
provision in the NSL statute actually did permit recipients to consult
with lawyers. So this isn't much of a victory at all. Making sure that
recipients don't have to tell the FBI if they consult a lawyer is an
improvement, but it is a minor one.
Next let's turn to national security letters or NSLs. These are the
letters that the FBI can issue to obtain certain types of business
records, with no prior court approval at all.
The conference report does provide for judicial review of NSLs, but
it also gives the Government the explicit right to enforce NSLs and
hold people in contempt for failing to comply, which was not previously
laid out in the statute. In stark contrast to the Senate bill, the
conference report also would require that the judicial review be
conducted in secret and that Government submissions not be shared with
a challenger under any circumstances without regard to whether there
are national security concerns in any particular case. So just like the
section 215 judicial review provision, this will make it very difficult
for challengers to be successful. Again, the Sununu bill does not
address this problem.
Of course, NSLs come with gag orders, too. The conference report
addresses judicial review of these gag orders, but it has the same flaw
as the Sununu bill with regard to judicial review of the section 215
gag rule. In order to prevail, you have to prove that the Government
acted in bad faith, which, again, would prove to be virtually
impossible. The Sununu bill does not modify these provisions at all.
Let me make one last point on NSLs. The Sununu bill contains a
provision which states that libraries cannot receive an NSL for
Internet records unless the libraries provide ``electronic
communication services'' as defined by statute. But that statute
already applies only to entities that satisfy this definition, so this
provision is essentially just restating existing law. It is no
improvement at all. Those cosmetics wear pretty thin when you look
closely at this deal.
Let's turn to sneak-and-peek search warrants. As I laid out in detail
yesterday, the conference report takes a significant step back from the
Senate bill by presumptively allowing the Government to wait an entire
month to either notify someone that agents secretly searched their home
or to get approval from a judge to delay the notice even longer. The
Senate said it should be 1 week. I have yet to hear any argument at
all, even in direct debate from the Senator from Alabama, much less a
persuasive argument, why that amount of time is insufficient for the
Government.
The core fourth amendment protections are at stake. This is not like
flipping a coin: Let's make it 7 days; no, make it 30 days. This
involves people coming into somebody's house without their knowledge
and how long that should be allowed without telling them you were in
their house. Once again, the Sununu bill does nothing to address this
issue.
Let me talk briefly about roving intelligence wiretaps under section
206 of the PATRIOT Act. We have not discussed this issue much, in part
because the conference report does partially address the concerns
raised about this provision. But the conference report language is
still not as good as the Senate bill was on this issue. Unlike the
Senate bill, the conference report does not require that a roving
wiretap include sufficient information to describe the specific person
to be wiretapped with particularity. The Sununu bill does not address
this problem.
Supporters of the conference report say it contains new 4-year
sunsets for three provisions: section 206, section 215, and the so-
called lone wolf expansion of the Foreign Intelligence Surveillance Act
that passed as a part of the intelligence reform bill in 2004. We
agree, I am sure, that sunsets are not enough. This reauthorization
process is our opportunity to fix the problems of the PATRIOT Act. Just
sunsetting bad law again is hardly a real improvement. Of course,
neither the conference report nor the Sununu bill contains a sunset for
the highly controversial national security letter authorities which
were expanded by the PATRIOT Act, even though many of us said back in
December that was a very important change we wanted to see made.
I have the same response to those who point to the valuable new
reporting provisions in the conference report: We must make substantive
changes to the law, not just improve oversight.
I have laid out at length the many substantive reasons to oppose the
deal. But there is an additional reason to oppose cloture on the motion
to proceed; that is, it appears the majority leader is planning to
prevent Senators from offering and getting votes on amendments to this
bill.
I was on the Senate floor for 9 hours yesterday. I was not asking for
much, just a guarantee that once we moved to proceed to the bill I
could offer and get votes on a handful of amendments relavant to the
bill. There was a time--in fact, I was here--when Senators did not have
to camp out on the floor to plead for the opportunity to offer
[[Page S1379]]
amendments. In fact, offering debate and voting on amendments is what
the Senate is supposed to be all about. That is how we craft
legislation. But my offer was rejected.
It appears as if the other side may try to ram this deal through
without a real amending process. I hope that even colleagues who may
support the deal will oppose such a sham process. It makes no sense to
agree to go forward without a guarantee that we will be allowed to
actually try to improve the bill. It is a discourtesy to all Senators,
not just me, to try to ram through controversial legislation without
the chance to improve it.
In sum, I oppose the sham legislative process the Senate is facing,
and I oppose the flawed deal we are being asked to ratify.
Notwithstanding the improvements achieved in the conference report, we
still have not adequately addressed some of the most significant
problems of the PATRIOT Act. I must oppose proceeding to this bill
which will allow this deal to go forward. I cannot understand how
anyone who opposed the conference report back in December can justify
supporting it now. The conference report was a beast 2 months ago, and
it has not gotten any better looking since then.
I urge my colleagues to vote no on cloture. I reserve the remainder
of my time.
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. CRAIG. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, the Chair lays
before the Senate the pending cloture motion, which the clerk will
state.
The assistant legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the motion to
proceed to S. 2271: 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.
Bill Frist, James Inhofe, Richard Burr, Christopher Bond,
Chuck Hagel, Saxby Chambliss, John E. Sununu, Wayne
Allard, Johnny Isakson, John Cornyn, Jim DeMint, Craig
Thomas, Larry Craig, Ted Stevens, Lindsey Graham, Norm
Coleman.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S. 2271, the USA PATRIOT Act Additional
Reauthorizing Amendments Act of 2006, shall be brought to a close? The
yeas and nays are mandatory under the rule. The clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Louisiana (Mr. Vitter).
The PRESIDING OFFICER (Mr. Ensign). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 96, nays 3, as follows:
[Rollcall Vote No. 22 Leg.]
YEAS--96
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brownback
Bunning
Burns
Burr
Cantwell
Carper
Chafee
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Voinovich
Warner
Wyden
NAYS--3
Byrd
Feingold
Jeffords
NOT VOTING--1
Vitter
The PRESIDING OFFICER. On this vote, the yeas are 96, the nays are 3.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
____________________
[Congressional Record: February 16, 2006 (Senate)]
[Page S1379-S1403]
USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006
The PRESIDING OFFICER. Under the previous order, the motion to
proceed to S. 2271 was agreed to, and the clerk will state the bill by
title.
The legislative clerk read as follows:
A bill (S. 2271) 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. The majority leader is recognized.
Amendment No. 2895
Mr. FRIST. Mr. President, I send an amendment to the desk and ask for
its consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Tennessee (Mr. Frist) proposes an
amendment numbered 2895.
Mr. FRIST. I ask unanimous consent that further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the bill add the following: This Act shall
become effective 1 day after enactment.
Mr. FRIST. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Amendment No. 2896 to Amendment No. 2895
Mr. FRIST. Mr. President, I send a second-degree amendment to the
desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Tennessee (Mr. Frist) proposes an
amendment numbered 2896 to Amendment No. 2895.
Mr. FRIST. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike all after the first word and insert: Act shall
become effective immediately upon enactment.
Cloture Motion
Mr. FRIST. Mr. President, I send a cloture motion on the bill to the
desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The assistant legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on S. 2271: 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.
Bill Frist, Arlen Specter, Thad Cochran, Richard Burr,
Mel Martinez, Jim Bunning, Jon Kyl, Craig Thomas, Mike
Crapo, David Vitter, Bob Bennett, Norm Coleman, Michael
B. Enzi, Lindsey Graham, Jeff Sessions, Saxby
Chambliss, John Cornyn, John Thune.
Mr. FRIST. Mr. President, the actions just taken, coupled with the
agreement we came to last night, set out a sequence I will review later
today. We will have final passage once we get back from the recess. I
am very disappointed in the fact that on a bill I know will pass
overwhelmingly, by 90 to 10 or 95 to 5, it has been required of us from
the other side of the aisle to be here all day yesterday, today,
tomorrow, through the recess, Monday when
[[Page S1380]]
we get back, Tuesday when we get back, and final passage on Wednesday
morning, when we know what the outcome will be. It bothers me in two
regards. First of all, it is a very important piece of legislation. It
breaks down and further defines that rough relationship between our law
enforcement community and our intelligence community. It is an
important tool for the safety and security of the American people and
the protection of civil liberties. The bill has been improved and will
be overwhelmingly supported.
Secondly, I am disappointed because it means that we effectively have
to put off other important business before this body with this
postponement and this delay, issues that are important, that are
immediate, that need to be addressed. The issue of lobbying reform is
underway, and we need to address that on the floor sometime in the near
future, such as the issues of LIHEAP and heating, flood insurance, a
whole range of bills.
It also plays into what has been this pattern of postponement and
delay and obstruction. If you look back at what we finished yesterday,
the asbestos bill, we were forced to file cloture on the motion to
proceed, which delays, in essence, for 3 days, consideration of that
bill. We had debate for a day, with the other side encouraging not to
take amendments on that day, allowing 2 days for amendments, but, in
effect, spending 2 weeks on a bill on which we could have been moving
much quicker.
Another example--I mentioned it last night in closing--is the
pensions bill, a bill that passed this body on November 16, 2005, last
year, 3 months ago. We asked the Democrats to appoint conferees on
December 15 of last year. We renewed that request on February 1. We
have been prepared. We have our conferees ready to go. We know what the
ratio is, but we still have not been able to send that important bill
to conference. In that regard, I wanted to formally, again, make
another request, but we absolutely must begin that conference.
Unanimous-Consent Request--H. R. 2830
Mr. President, I ask unanimous consent that the Senate proceed to the
immediate consideration of Calendar No. 357, H.R. 2830, that all after
the enacting clause be stricken and the text of S. 1783, as passed by
the Senate, be inserted thereof, that the bill, as amended, be read a
third time and passed, the motion to reconsider be laid upon the table,
the Senate insist upon its amendment and request a conference with the
House, and the Chair be authorized to appoint conferees at a ratio of 7
to 5.
Mr. REID. Mr President, reserving the right to object, first of all,
on the PATRIOT Act, it is very unusual to bring a bill to the floor and
allow no amendments.
I understand the history of this legislation. We had a cloture vote,
and cloture was not invoked. It was a bipartisan vote that has now been
resolved and that Senator Sununu has worked hard to bring it to the
Senate. I think the majority of the Senate clearly favors this
legislation, but Senator Feingold wants to offer amendments. Senator
Leahy wants to offer an amendment.
First of all, we could agree to the motions that are now pending
before the Senate on the PATRIOT Act. The so-called filling the tree
was used to block Senator Feingold. We could adopt those amendments
just like that because they are only date changes and mean very little.
They mean nothing, frankly.
We could move every bill quickly here if we had no amendments. The
distinguished majority leader is saying we are taking time with these
amendments. That is what we do. Senator Feingold has agreed
reluctantly, but he agreed, and I appreciate that very much. And
Senator Leahy also agreed that there would be two amendments offered,
one dealing with section 215, the other would deal with the so-called
gag order. These two amendments would take an extremely limited amount
of time to debate. We could vote on them today and finish this
legislation. The majority leader has decided not to do that. He filled
the tree, and that is his right. We understand that. But I think it is
a mistake. I think it sets a bad tone for what we are trying to
accomplish.
In regard to the matter before the Senate now, the unanimous consent
request, which I will respond to, deals with an important piece of
legislation. I acknowledge that, and we need to complete it. It will
affect millions of working Americans. The bill has strong bipartisan
support. It passed out of here by a vote of 97 to 2. As I reminded the
distinguished majority leader off microphone, we in the minority worked
very hard to get the bill passed. We eliminated amendments that people
wanted to offer. It was a bipartisan effort by virtue of the extremely
good vote we had.
We are eager to get to work on producing a conference report that
will both strengthen the Pension Benefit Guaranty Corporation and
provide certainty to employers who sponsor other types of pensions. The
virtual unanimity with which the bill passed the Senate does not mean,
however, that there aren't issues that need to be resolved with the
House.
We have 13 titles, and it involves many issues, including changing
the myriad of rules that guide employers' pension funding requirements,
establishes the proper interest rate for employer funding purposes, and
for calculating lump-sum distributions paid to departing employees.
There are a couple of other provisions, such as it increases premiums
of the Pension Benefit Guaranty Corporation, protects older workers who
are hurt by changes, the so-called cash balance pension plans, and
finally, one of the issues is establishing rules to help employees with
401(k) plans get unbiased investment advice. It expands 401(k) plans to
make it easier for employees to be automatically enrolled in these
plans so they get better savings for their retirements and changes the
rules to protect spousal benefits.
Some of these issues are very technical in nature, and there are very
few Senators who understand them because they have worked on them. For
example, on our side, Senator Harkin is an expert, and all of those
people on the Labor Committee acknowledge his expertise in one field.
Senator Mikulski, the ranking member of the subcommittee, is an expert
in other areas.
So the point I am making is that the majority has said you will have
a conference committee with seven Republicans and five Democrats. I am
saying we need eight Republicans and six Democrats. It would allow me
to offer somebody who I think is vitally important in allowing a better
product to come back from the conference, at least the ability to
debate it better.
We are not holding up this pension conference. We are not holding it
up. I say the argument is just as easily made that it is being held up
by the majority because they refuse to allow us to have 6 members to
conference, 6 out of 100, on something that will affect hundreds of
millions of Americans. I don't think that is asking too much.
So we are willing to go to conference in 5 seconds, 5 minutes. I have
my conferees ready to go. We need six. It may sound easy putting these
conference committees together, but it is not. I see on the floor the
former majority leader and the former minority leader of the Senate,
and Senator Frist, the present majority leader, is here. They know how
difficult these conference committees are. But I have a unique problem
on this bill, and I need another Democratic member. So I object, unless
the ratio is eight Republicans and six Democrats.
This is not arm wrestling. This doesn't have to show who is the
toughest, that we are all going to hang in there, and we are not going
to allow this to happen. We are in the minority. We understand that.
But we have certain rights also. I don't think it is asking too much to
increase the size of this conference. One more Democrat is all we are
asking for. In exchange for that, of course, you get another
Republican.
So I hope the ratio--the majority will have two extra Republicans on
the conference--is something to which the distinguished majority leader
will agree.
Mr. LOTT. Reserving the right to object, if I can make a
parliamentary inquiry: First of all, did Senator Reid ask for a
different UC?
Mr. REID. Yes, I did, Mr. President. I ask that the request of the
distinguished majority leader be amended to allow an eight-to-six
conference, eight Republicans, six Democrats.
Mr. LOTT. Reserving the right to object to that, Mr. President, I
hesitate
[[Page S1381]]
to tread into these waters because I know how difficult it is to be in
the position that these two leaders are in. They have to make tough
choices. They have to take into consideration what happens once you get
into conference. You have to look at personalities. But frankly, I
think seven and five is too big. That is, to me, a pretty large number
of Senators to be going to conference. I understand that Senator Reid
has other Senators who would like to be conferees, and I am sure
Senator Frist has other Senators who would like to be conferees. In
fact, most Senators would like to be a conferee on everything,
particularly coming out of their committee. That is what this is all
about. I wanted to be a conferee on the tax reconciliation bill. I
worked on it for a year, but I am not. The leader made the choice to go
with two others, and I am off. I am not happy about that, and I have
explained it to him. It is called leadership. It is called tough
choices.
By the way, this has been hanging around since December 10. I believe
that is when our leadership first said: Let's go to conference. I
remind my colleagues and our leaders, this is a bipartisan bill. This
is a bill that passed the Senate overwhelmingly. This is a bill that
passed the House overwhelmingly. But it is a complex area. We need time
to work out the difficulties and disagreements on pensions and how it
affects aviation. None of it is going to be easy. I would think some
Senators might want to take second thoughts about whether to be on this
conference because it will be difficult.
But we have a time problem. If we don't appoint these conferees this
week in the Senate and the House, we won't be able to begin when we
come back, and then another week will be frittered away. When you look
at the calendar, we will have something like maybe 25 days to reach an
agreement because there is a drop-dead date on this.
First of all, at least two airlines are hanging in the balance of
bankruptcy. They could very easily dump their pensions on the PBGC and
say we are out of here. They are trying not to do that. They are trying
to do the responsible thing for themselves, the taxpayers, and
everybody.
Secondly, the reason why April 15 is a very serious date is because
that is when the next quarterly payment is due. Within 2 weeks,
companies are going to have to make a decision: Do I comply or not? Do
I dump my pension on PBGC or do I go into bankruptcy?
We have a time problem. So I know it is not easy, but we need to get
this done. I know the leaders have been talking back and forth trying
to reach an agreeable number to deal with all this, but I say to my
friends, it is time to make a decision, and we all have to understand
we don't all get to be conferees. I understand that. I don't like it,
but I understand it.
So I object to a larger number for a lot of reasons, and I urge the
two leaders to come to a quick agreement. Let's get this done in the
next 24 hours. Let's show for the first time this year that we can deal
with something, as hard as it may be, in a bipartisan way. So I object.
The PRESIDING OFFICER. Objection is heard to modifying the unanimous
consent request. Is there objection to the basic request?
Mr. REID. Mr. President, reserving the right to object, I say to my
friend, the junior Senator from Mississippi, this is the first request
we have had for a conference. The majority and minority staffs have
worked on this. They have made significant headway, and I appreciate
the work they have done. The House has not appointed their conferees,
and they are certainly not going to today or tomorrow. So I think what
we need to do is understand the importance of this and understand that
we are ready to go to conference. We are ready to go to conference. It
is a question of how many conferees we have.
I hope that my friends on the other side of the aisle would agree
that it is important to go to conference and that we move forward as
quickly as we can, allowing people from the Finance Committee--this
isn't one committee. One reason it is complicated is that there are
issues dealing with finance and the HELP Committee. So I object to the
distinguished majority leader's request.
The PRESIDING OFFICER. Objection is heard.
The majority leader.
Mr. FRIST. Mr. President, the issue is an important one because of
the time constraints that were outlined by my colleague from
Mississippi. This is something we have to work through. It is pretty
simple, pretty straightforward, as my colleague from Mississippi said.
We just went through appointing the conferees for the tax
reconciliation bill. I had on the floor here a few minutes ago three
different people who passionately wanted to be conferees--who worked on
it, who deserve to be, yet they are not. Part of leadership is
basically saying no. Seven to five is a reasonable number that many
people think is too large. Seven to five is what it will be. I am
hopeful that over the next few hours we can come to some resolution and
appoint conferees. The House is ready to go to conference. We are
ready. We asked to go to conference on December 15 of last year, yet we
are not to conference.
This is a specific problem. Both the Democratic leader and I have
talked about this for days, that we both have challenges, but it is
something that is pretty straightforward. The bill has been passed, it
is ready to go to conference, is addressing a major problem facing
people across America, and we need to address it.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the pending
amendment be set aside so I may offer an amendment which is at the
desk, amendment No. 2892.
Mr. REID. Will the distinguished Senator yield?
Mr. FEINGOLD. I yield to the Senator from Nevada.
Mr. REID. I should have done this. I have people sending me notes.
Are we having anymore votes today?
Mr. FRIST. Let's decide within the next hour. With the schedule, I
know there is still going to be an effort to offer amendments and the
like. Why don't we get together and have some sort of announcement
shortly to our colleagues.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent the pending
amendment be set aside so I may offer an amendment at the desk, No.
2892.
The PRESIDING OFFICER. Is there objection?
Mr. FRIST. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. FEINGOLD. Mr. President, we can obviously see what is going on
here when the majority leader offered those two amendments earlier. He
was filling the amendment tree. That means he is trying--in fact, he is
going to do everything he can, and he will succeed, if he wishes--to
refuse to allow Senators to improve this bill. Those amendments are
nothing more than meaningless amendments, the amendments he has
offered, that have to do with the effective date of the bill. They are
nothing other than an attempt to prevent me or any other Senator from
trying to amend this legislation.
Not only was this a take-it-or-leave-it deal from the White House,
but now the majority leader and perhaps other Senators are apparently
afraid of what happens if the Senate actually does its work on this
issue and has open votes on the merits of these issues.
I want everyone to know that is the game that is being played here,
on a bill that has major implications for the rights and freedom of the
American people. Obviously, when the majority leader talks about how
urgent it is that this be passed, he is conveniently ignoring the fact
that this current law is in effect until March 10, and there is no risk
whatsoever that the bill would not be renewed.
I am going to speak for a few minutes about the various amendments I
have filed and that the majority leader is preventing me from offering.
Amendment No. 2892
Amendment No. 2892 is the amendment that would implement the standard
for obtaining section 215 orders that was in the Senate bill the
Judiciary Committee approved by a vote of 18 to 0 and that was agreed
to in the Senate without objection. I hope my colleagues remember that.
When the majority leader fills the tree, he is not preventing some type
of esoteric amendments nobody has ever seen or heard of. Every member
of the Judiciary Committee already voted for that
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very provision and no Senator in the entire Senate, including the
majority leader, objected to that being in the Senate bill. So this is
not some kind of a last-minute deal. This is something the majority
leader himself never objected to. It is a reasonable amendment that
every Senator in one way or another has basically supported.
Of all the concerns that have been raised about the PATRIOT Act since
it was passed in 2001, this is the one that has received the most
public attention, and rightly so. This is the one that is often
referred to as the ``library provision.'' A reauthorization bill that
doesn't fix this provision, in my view, has no credibility.
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 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 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--
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.
Because of the breadth of this power, section 215 became the focal
point of a lot of Americans' concerns about the PATRIOT Act. These
voices came from the left and the right, from big cities and small
towns all across the country. So far, more than 400 State and local
government bodies have passed resolutions calling for revisions to the
PATRIOT Act. And nearly every one mentions section 215.
The Government should not have the kind of broad, intrusive powers
that section 215 provides--not this Government, not any government. The
American people shouldn't have to live with a poorly drafted provision
that clearly allows for the records of innocent Americans to be
searched, and just hope that 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 can be written into the laws without compromising
their usefulness as a law enforcement tool. Not one of the amendments I
am offering would threaten the ability of law enforcement to do what is
needs to do to investigate and prevent terrorism.
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. And
when I say some connection, that's 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--just relevant--to the activities of a
suspected terrorist or spy. That's the three-prong test in the Senate
bill and I think it is more than adequate to give law enforcement the
power it needs to conduct investigations, while also protecting the
rights of innocent Americans. It would not limit the types of records
that the Government could obtain, and it does not go as far to protect
law-abiding Americans as I might prefer, but it would make sure the
Government cannot go on fishing expeditions into the records of
innocent people.
The conference report did away with this delicate compromise. It does
not contain the critical modification to the standard for section 215
orders. The Senate bill permits the Government to obtain business
records only if it can satisfy one or more prongs of the three-prong
test. This is a broad standard with a lot of flexibility. But it
retains 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 report replaces the three-prong test with a simple
relevance standard. It then provides a presumption of relevance if 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 relevant to an authorized intelligence
investigation. Relevance is a very broad standard that could arguably
justify the collection of all kinds of information about law-abiding
Americans. The three-prongs now 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, rendering
basically meaningless the three-prong test that we worked so hard to
create in the Senate version of the bill.
This issue was perhaps the most significant reason that I and others
objected to the conference report. So how was this issue addressed by
the White House deal to get the support of some Senators? It wasn't.
Not one change was made on the standard for obtaining section 215
orders. 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--
including the majority leader--it wouldn't make any change in the
conference report on this issue at all.
So today I offer an amendment to bring back the Senate standard on
section 215. It simply replaces the standard in the conference report
with the standard from the Senate bill. I urge my colleagues to support
this change, which we all consented to 6 months ago, and which was one
of the core issues that many of us stood up for in December when we
voted against cloture on the conference report.
I know that some will say they must oppose this amendment because it
would disrupt a delicate agreement that has been achieved with the
White House. I disagree. There is no reason we can't reauthorize the
PATRIOT Act and fix section 215--in fact, there is every reason we
should do so. This body has expressed its strongly held views on this
issue before, and it should do so again. If this issue went to a vote
in the House I'm confident we would have strong support because the
House has already indicated a willingness to modify section 215 to
protect the privacy of innocent Americans. That is the first amendment
I wanted to offer. Let me next turn to amendment No. 2893.
Amendment No. 2893
The second one is amendment No. 2893. This amendment would ensure
that recipients of business records orders under section 215 of the
PATRIOT Act and recipients of national security letters can get
meaningful judicial review of the gag orders that they are subject to.
Recipients of both section 215 orders and national security letters
are subject to automatic, indefinite gag orders. This means both that a
recipient cannot tell anyone what the section 215 order or NSL says,
and that the recipient can never even acknowledge that he or she
received a section 215 order or NSL. Now I understand there may very
well be a need to protect the confidentiality of these business records
orders and NSLs in many cases, particularly with regard to the identity
of the people whose records they seek. But I do not understand why even
the fact of their existence must be a secret, forever, in every case.
Even classified information can undergo declassification procedures and
ultimately become public, when appropriate.
So I think that meaningful judicial review of these gag orders is
critically important. In fact, these automatic, permanent gag rules
very likely violate the first amendment. In litigation challenging the
gag rule in one of the national security letter statutes, two courts
have found first amendment violations because there is no
individualized evaluation of the need for secrecy.
So what does the reauthorization package do about this serious
problem? Under the conference report, as modified by the Sununu bill,
recipients would theoretically have the ability to challenge these gag
orders in court, but
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the standard for getting the gag orders overturned would be virtually
impossible to meet. It is not the meaningful judicial review that the
sponsors of the SAFE Act and so many others have been calling for.
Let me start with the NSL provision of the conference report. In
order to prevail in challenging the NSL gag order, the recipient would
have to prove that any certification by the Government that disclosure
would harm national security or impair diplomatic relations was made in
bad faith.
There would be what many have called a ``conclusive presumption'' the
gag order stands--unless the recipient can prove that the Government
acted in bad faith. We all know that is not meaningful judicial review.
That is just the illusion of judicial review.
Does the White House deal address this problem? It does not. In fact,
it applies that same very troubling standard of review to judicial
review of section 215 gag orders.
The conference report that was rejected back in December did not
authorize judicial review of the gag order that comes with a section
215 order at all. That was a serious deficiency. But the White House
deal does not solve it. Far from it. Under the deal, there is judicial
review of section 215 gag orders, but subject to two limitations that
are very problematic. First, judicial review can only take place after
at least a year has passed. And second, it can only be successful if
the recipient of the section 215 order proves that the Government has
acted in bad faith, just as I have described with the NSL provision.
My amendment would eliminate the ``bad faith'' showing currently
required for overturning both section 215 and NSL gag orders. And it
would no longer require recipients of section 215 orders to wait a year
before they can challenge the accompanying gag orders.
That is not everything I would want to address with regard to this
issue. I am also concerned that the judicial review provisions allow
the Government to present its evidence and arguments to the court in
secret. But this amendment which I would like to offer is a good solid
start. At a time when the Government is asserting extraordinary powers
and seeking to exercise them without any oversight by the courts,
judicial review of Government assertions that secrecy is necessary more
essential than ever.
We cannot face the American people and claim that overreaching by the
government under the PATRIOT Act cannot happen because the courts have
the power to stop it--and then turn around and prevent the courts from
doing their job. The illusion of judicial review is almost worse that
no judicial review at all. In America, we cannot sanction kangaroo
courts where the deck is stacked against one party before the case is
even filed. Obviously, I hope that my colleagues will support this very
reasonable amendment, if we are given a chance to vote on it. I think
many would find it quite pervasive and particularly some of the people
who were part of the White House negotiations.
amendment to add nsl sunset
The third amendment I would like to offer, No. 2891, would add to
the conference report one additional 4-year sunset provision. It would
sunset the national security letter authorities that were expanded by
the PATRIOT Act. It would be simply add that sunset to the already
existing 4-year sunsets that are in the conference report with respect
to section 206, section 215, and the lone wolf provision.
National Security Letters, or NSLs, are finally starting to get the
attention they deserve. This authority was expanded by sections 358 and
505 of the PATRIOT Act. The issue of NSLs 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 about these authorities.
What are NSLs, and why are they such a concern? Let me spend a little
time on this because it really is 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 an FBI headquarters official.
NSLs can only be used to obtain certain categories of business
records, 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 nothing to fix the standard for issuing an
NSL. It leaves in place the breathtakingly broad relevance standard.
And the White House deal doesn't do anything about this either.
It is true that the Senate bill does not contain a sunset on the NSL
provision. But the Senate bill was passed before the Post brought so
much attention to this issue by reporting 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 is justified to ensure that Congress
has the opportunity to take a close look at such a broad power. And let
me emphasize, the sunset in this amendment would only apply to the
expansions of NSL authorities contained in the PATRIOT Act, not to pre-
existing authorities.
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 Government power in intelligence
investigations. And that is why the Congress should be very concerned,
and very insistent on including a sunset of these expanded authorities.
A sunset is a reasonable step here. It helps Congress conduct oversight
of these authorities, and requires us to revisit them in 4 years.
Ideally we could go ahead and actually fix the NSL statutes now, but
sunsetting the expanded powers would at least be a step in the right
direction.
Adding this sunset does not change the law in any way. I cannot
imagine that adopting this amendment would blow up the White House
deal. This is a reasonable amendment, and again I want my colleagues to
have a chance to vote on it.
sneak and peek amendment
The fourth amendment that I have, No. 2894, concerns so-called
``sneak and peek'' searches, whereby the Government can secretly search
people's houses. The Senate bill included compromise language that was
acceptable to me and the other proponents of the SAFE Act. The
conference report departs from that compromise in one very significant
respect, and the White House deal doesn't address this at all. My
amendment would restore the key component of the Senate compromise by
requiring that subjects of sneak and peek searches be notified of the
search within 7 days, unless a judge grants an extension of that time
because there is a good reason to still keep the search secret. It
makes no other change to the conference report other than changing 30
days to 7 days.
Let me take a little time to put this issue in context and explain
why the difference between 30 days and 7 days is necessary to protect
an important constitutional right.
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
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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? Well,
for one thing, that description becomes a limit on what can be searched
or 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 here is the key. 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 effect 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 faced claims by the Government 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
causing the suspect to flee or destroy evidence. The two leading court
decisions on so-called surreptitious entry, or what have come to be
known as ``sneak and peek'' searches, came to very similar conclusions.
They held that 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 days.
Section 213 of the PATRIOT Act didn't get this balance right. It
allowed notice to be delayed for any ``reasonable'' length of time.
What is ``reasonable''? Information provided by the administration
about the use of this provision since 2001 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.
I know that the conference report requirement of notice within 30
days was a compromise between the Senate and House provisions. And so,
the Senator from Pennsylvania and others will strongly oppose this
amendment, if I ever get to offer it. But let me point out that the
House passed the Otter amendment to completely eliminate the sneak and
peek provision by a wide bipartisan margin. I hardly think the House
will balk at this reasonable amendment that allows these sneak and peek
reviews but says that after 7 days you have to go back and get an
application for more time, or you have to give notice to the persons
whose house is intruded upon.
More importantly, here is the crucial question that no one has been
able to answer so far. Listen carefully to the arguments made by the
opponents of the amendment and see if they answer it this time, if we
ever get a chance to debate it. What possible rationale is there for
not requiring the Government to go back to a court within 7 days after
a sneak and peek search and demonstrate a need for continued secrecy?
What is the problem here? Why insist that the Government get 30 days of
secrecy, instead of 7 days, without getting an extension from the
court? 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.
It amazes me to hear Senators on the floor saying 7 days, 30 days.
What is the difference? This is about big government coming into your
home without your knowledge and saying it doesn't matter that you are
not given notice in 7 days as opposed to 30 days. I tell you that it
matters to people in my State, and it would matter to me. Government
shouldn't be in your house without notice except for very narrowly
identified circumstances that are consistent with the court decisions
that allowed the sneak-and-peek provisions in the first place. There is
a big difference between 1 week and 1 month when it comes to something
like the Government secretly coming into your home.
Suppose, for example, that the Government actually searched the wrong
house. As I mentioned, that is 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 his house, and
he might be living in fear that someone has a key or some other way to
enter his house. The owner might wonder: When is the intruder going to
return? Do the locks have to be changed?
I implore my colleagues to look at this issue from the point of view
of an innocent person in their own home somewhere in their own home
State. Why would 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 a little
embarrassment for notice to be given within 7 days.
If, on the other hand, the search was successful and revealed illegal
activity and notifying the subject would compromise an ongoing
investigation, the Government should have no trouble at all getting a
90-day extension of the search warrant. All they have to do is walk
into the court and tell the judge: Judge, we found something, and we
are now keeping the place under surveillance because there is ongoing
criminal activity taking place there, so give us more time before we
serve the search warrant.
That is all you have to say. What is so hard about that? We all know
the judges will give them that. It is perfectly reasonable.
The Senate bill is already a compromise on this very controversial
provision. There is no good reason not to adopt the Senate's position.
I have pointed this out repeatedly and no one has ever come to the
Senate and come up with any explanation of why the Government cannot
come back to the court within 7 days of executing the search. The
Senate provision was what the courts required prior to the PATRIOT Act.
It worked fine then. It can work now.
Let me make one final point about sneak-and-peek warrants. Do not be
fooled for a minute that this power has anything to do with just
investigating terrorism or espionage. It does not. Section 213 is a
criminal provision that applies in any kind of criminal investigation.
In fact, most sneak-and-peek warrants are issued for drug
investigations. So why do I say they are not needed in terrorism
investigations? Because FISA, the Foreign Intelligence Surveillance
Act, can also apply to these investigations. FISA search warrants are
always executed in secret and never require notice--not in 7 days, not
in 30 days, not in 180 days, not ever. So
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if you do not want to give notice of a search in a terrorism
investigation, you can get a FISA warrant. So any argument that
adopting this amendment will interfere with sensitive terrorism
investigations is false. It is false, plain and simple.
I look forward to hearing the response of the opponents on this
issue. I am beginning to lose faith I will ever hear from them. But I
also urge my colleagues to listen carefully: Will anyone come forward
and argue convincingly that 7 days, which the entire Senate approved in
July, is too short of a period of time? If not, we should adopt this
amendment.
I have had the opportunity the last few minutes to describe the four
remaining amendments I have filed. I have tried to explain them
clearly. These are provisions that are either consistent with or the
same as provisions that we approved in the Senate last year by
unanimous vote in the Judiciary Committee and in a unanimous consent
agreement in the Senate, which not one single Senator, including the
majority leader, objected to. Or they were central to the concerns
raised by so many Senators late last year. So these are obviously not
extreme ideas. They are very reasonable ideas.
The idea that right after the motion to proceed was approved the
majority leader would come and ``fill up the tree,'' which means
preventing me from offering these amendments on the Senate floor, is a
disservice to the Senate and it is a disservice to the American people.
The American people are concerned about this legislation. Whether
Members of this Senate want to admit it, there is a lot of concern
about this legislation. The goal should be to make sure that the law
enforcement in our country has the tools it needs to fight those who
are involved in terrorism or spying. But the goal should also be to
reassure the American people that we are not somehow trying to take
away the rights and freedoms and privacy of perfectly innocent
Americans. I would think all of us would want that to be the way this
legislation is perceived.
The act of preventing reasonable amendments, under a limited
timeframe, on provisions that have already been approved by the Senate
or that so many Senators have raised concerns about, is a guarantee of
causing anxiety and concern on the part of the American people that
something is wrong, that somehow the power grab by this administration
is out of control.
I implore my colleagues to join me in imploring the majority leader
to allow us to offer these reasonable amendments. That is not only the
right thing to do, it is our responsibility, as Members of this Senate.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. TALENT. 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. TALENT. Mr. President, I have come to the Senate floor this
afternoon to speak for a few minutes about a specific provision, a
significant provision in the PATRIOT Act, the Combat Meth Act. This is
the most comprehensive antimethamphetamine legislation ever to be
introduced, much less passed, in the Senate. I am hopeful that it will
be passed in the Senate, of course, in this legislation and be sent to
the President's desk for his signature and then for implementation.
Methamphetamine is the worst drug threat that I have confronted in my
20 years in public life. When I say that, I hope it has some impression
on people. But when career law enforcement officers stand up in various
forums and say that, I hope people are afraid because this drug should
make us afraid. It is almost the ``perfect storm'' of drugs. It is
almost immediately addictive.
Most people who try methamphetamine get addicted the first time they
try it. There is no such thing as casual or recreational use of this
drug. It is very damaging to the person who uses it. It changes the
structure of the brain. It turns people who use it into more
aggressive-type individuals. Other drugs, as bad as they are, tend to
make people more passive. Methamphetamine makes them paranoid. I was
speaking with another Senator about this bill a few minutes ago over
the telephone, and he mentioned to me that in his State one woman who
had been a meth user told him that when she was high on meth, she
thought her 3-year-old was trying to kill her. This is not uncommon.
There is almost no known medical cure for it.
Our substance abuse counselors do a heroic job and people have gotten
off of methamphetamine, but I do want to state that we don't have a
methadone for methamphetamine. On top of all of these things, as bad as
they are by themselves, this is a drug which, to this point, has not
only been consumed and sold in our neighborhoods, as other drugs are,
it has been primarily, in many States, made in our own neighborhoods in
local labs.
The process for making methamphetamine is highly dangerous and toxic.
So in addition to all of the problems that go with addiction to deadly
drugs, we have, on top of that, a whole set of other problems that you
don't have with other drugs that are caused by the fact that
methamphetamine is actually made in our neighborhoods. Since the
process for making it is toxic, homes in which methamphetamine is made,
or in cars--because sometimes they make it in vans--they become toxic
waste dumps, huge environmental waste problems for local officials to
clean up. The fact that the drug is made in home labs creates a whole
new set of problems for kids. It is bad enough for a kid if they are
growing up in a home where drugs are being used, but if methamphetamine
is being cooked, the children become contaminated with toxins.
When they pull kids out of those environments, they have to
decontaminate them. It can cause permanent health problems. I had a St.
Louis County firefighting officer tell me that half of the vehicle
fires they were fighting were methamphetamine related. Those are
chemical fires. It has strained local budgets to the breaking point
because our counties, in addition to all of the other law enforcement
activity, have had to try to knock down, in some cases, hundreds of
labs in rural counties. In many cases, there are more rural counties
where they have 5, 6, 8, 10 or 12 deputies trying to patrol the whole
county. It is the ``perfect storm'' of drugs.
The only silver lining in the cloud is the fact that in order to make
methamphetamine, you must have pseudoephedrine. There are lots of ways
to make it, but you need pseudoephedrine for making it. For local
cooks, the only way to get pseudoephedrine is through cold medicines,
antihistamines. This opened up the possibility for stopping the local
labs that take advantage of this.
Before going any further--I only have a few minutes--I have to stop
and congratulate and pay tribute to Senator Feinstein. This bill that
we are going to pass--I hope and believe--within the next week or 2,
stands on the shoulders of the work that she has put in since the mid-
1990s, when she recognized the danger of pseudoephedrine. She and I are
the chief cosponsors of the measure in the Senate. She has been a
pleasure to work with, and her knowledge and expertise were important
in getting the bill this far. I think she can accurately regard this
bill as a personal triumph.
What does the legislation do? It is a comprehensive approach. There
are a number of things in it. It will put pseudoephedrine behind the
counters in pharmacies and stores. Legitimate consumers will still be
able to get it, but if you are buying medicines containing
pseudoephedrine without a prescription, you are going to have to show
an ID and sign a log book, and you won't be able to buy more than 3.6
grams of cold medicine at a time, and 9 grams in one month, which is
far more than the average use of any adult for cold medicine anyway.
The States that have experimented and have had measures such as this--
and Oklahoma is a leader, and Iowa has been a leader, and they deserve
credit. My home State of Missouri also has a law. The States that have
passed laws such as this have experienced anywhere from a 70- to an 80-
percent reduction in local labs.
Senator Feinstein and I and all the cosponsors of the bill are
hopeful that we will get the same results nationally, and we will
protect our people, moreover, from people crossing State lines
[[Page S1386]]
to buy the pseudoephedrine in jurisdictions that don't have this
legislation. We had a case in Missouri recently when a couple of meth
cooks left Franklin County, MO, in eastern Missouri, drove across
Illinois into Indiana and bought over 100 packages of cold medicine in
Indiana, which is about 140 to 150 grams of pseudoephedrine; they were
in the process of driving it back to Franklin County to support the
local lab structure there, when they were caught by the Indiana
troopers. We are grateful for those troopers.
That is what is going to go on until we have a national standard.
This bill provides a national standard that will be effective 30 days
after Presidential signature, and we can expect a 70- to 80-percent
reduction in local labs around the country as a result of this.
There are a number of other provisions in the Combat Meth Act that
are important, which will provide critical resources to local law
enforcement to do the cleanup. When you cook meth in a home, it becomes
a toxic waste dump, costing thousands of dollars to clean up. Thousands
of our deputies and sheriffs and police officers have had to become
trained in environmental cleanup because of this drug. We are going to
provide additional resources to help them. It will enhance enforcement
of meth trafficking by requiring additional reporting and certification
from countries that export large amounts of pseudoephedrine. It is
going to help local social services help the kids who are tragically
trapped in this environment. There is money for drug-endangered
children rapid response teams. We can help localities with that. We
provide extra tools to prosecute meth cooks and traffickers.
It is a comprehensive measure, but it is by no means all that we need
to do. This is a significant first step, and Senator Feinstein and I
believe it will at least substantially eliminate these labs, which then
will eliminate a whole set of enormous problems above and beyond the
problems caused by addiction to methamphetamine.
We are continuing to work with the State Department, the DEA, and
other agencies to try to interdict shipments of methamphetamine or
pseudoephedrine from abroad. We need to work with relevant committees
to come up with a new kind of methamphetamine technical assistance
center in Washington, which can help develop better protocols and
assistance to help those people who are on meth and want to get off of
it. I think it is an important part of the drug war to say to people:
Look, if you are addicted to a drug and you want help, we want to help
you. If what you want to do is cook this drug or make it and sell it to
our kids, we are going to stop you.
That is a piece that we need to work on, and I think we will work on
it. We have had assurances from the relevant Committee chairs and
ranking members that we can do that. We need to pass this bill now. I
am grateful--and I know Senator Feinstein is as well--to the leaders in
both parties for their bipartisan leadership and to the Judiciary
Committee, Senator Specter and Senator Leahy, for allowing us to put
this bill on the PATRIOT Act. We are grateful, also, to the Senate for
its unanimous support of this bill over the last few months.
Mr. President, we can do important things. We can do good things for
people, and we can do them the right way. That is how I look at the
Combat Meth Act. It is going to make a difference immediately in
neighborhoods and communities around the country, and it has been done
on a thoroughly bipartisan basis from the beginning, when Senator
Feinstein and I cosponsored it.
So I am pleased to be here to speak on behalf of the bill as a whole
and also on behalf of this specific provision. I hope we can move
expeditiously to final passage so that this important legislation can
be signed by the President and can become law.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Talent). Without objection, it is so
ordered.
Mr. DURBIN. Mr. President, I rise to speak about S. 2271, Senator
Sununu's bill to amend the PATRIOT Act. I commend Senator John Sununu
of New Hampshire for his extraordinary efforts on this bill.
For over 2 years he has been part of a bipartisan coalition, which I
have been happy to join him in, working to reform the PATRIOT Act. We
support the PATRIOT Act. We want it to include checks and balances to
protect the constitutional rights of Americans. In other words, we want
to improve the PATRIOT Act, not abandon it.
We came together across party lines for this effort because our
national security and constitutional rights are important to every
American. The PATRIOT Act should not be a political football.
When we launched this effort 2 years ago, the administration said
changing even one word in the PATRIOT Act was unacceptable. I have said
that when it comes to writing laws, with the exception of the Ten
Commandments which were handed down on stone tablets, there are no
perfect laws; we should always try to improve them.
Now, with Senator Sununu's bill and the PATRIOT Act conference
report, we will reauthorize the PATRIOT Act with significant reforms,
reforms we proposed as long as 2 years ago.
Let me say up front this outcome is far from perfect. There is still
a lot of work to be done.
But the administration was willing to let the PATRIOT Act expire
rather than accept some of the reforms we proposed. We will not let
that happen. The PATRIOT Act will not expire on our watch.
We are going to reauthorize the PATRIOT Act with new checks and
balances that will help protect innocent Americans, but we will not
stop our fight for additional necessary reforms.
Let me take a few minutes to review the history of the PATRIOT Act.
During a time of national crisis, shortly after September 11, the
President came to us, asking Congress for new tools and new authority
to fight terrorism. While the ruins of the World Trade Center were
still smoldering, Congress responded on a bipartisan basis, with
dispatch, to give this administration what they wanted to be able to
fight terrorism. We passed the PATRIOT Act with overwhelming bipartisan
support.
We understood it was a unique moment in history. We had to act
quickly. Even then we were concerned that perhaps the PATRIOT Act went
too far. So we included sunsets so we could review this law after four
years and reflect on whether we had made the right decision.
There is now a widespread, bipartisan consensus that the PATRIOT Act
went too far in several specific areas. The vast majority of the
provisions of the PATRIOT Act are not controversial. But in a few
specific areas, there is broad agreement that the PATRIOT Act does not
include adequate checks and balances to protect the civil liberties of
innocent Americans.
As a result, Senator Larry Craig and I introduced the Security and
Freedom Enhancement Act, also known as the SAFE Act, to address these
specific areas of concern. We were joined by our colleagues Senators
Sununu, Feingold, Murkowski, and Salazar.
We crossed a broad and wide political divide to come together. This
is really the gathering of political odd fellows, but we all shared the
same goal: protecting constitutional freedoms while still protecting
the security of America.
The administration threatened to veto the SAFE Act if it ever came
before them. They claimed that it would ``eliminate'' some PATRIOT Act
powers. In fact, the SAFE Act would not repeal a single provision of
the PATRIOT Act. It would retain the expanded powers created by the
PATRIOT Act but place important limits on these powers.
The bill attracted an enormous amount of support from across the
political spectrum, from the most conservative to the most liberal
groups in Washington. I have never seen another bill like our SAFE Act
that attracted that kind of support.
It also was supported by the American Library Association because it
would prevent the Government from snooping through the library records
of innocent Americans.
I thank America's librarians for their efforts and tell them that it
paid off.
[[Page S1387]]
They were not taking a hysterical position, as some in the
administration branded it. They were taking the right position--
standing up for the freedoms we hold dear in this country.
The conference report, as amended by the Sununu bill, includes a
number of checks and balances that are based on provisions of the SAFE
Act.
Under the PATRIOT Act, the FBI is now permitted to obtain a John Doe
roving wiretap, a sweeping authority never before authorized by
Congress. A John Doe roving wiretap does not specify the person or
phone to be wiretapped. In other words, the FBI can obtain a wiretap
without telling a court whom they want to wiretap or where they want to
wiretap.
Like the SAFE Act, the PATRIOT Act conference report would continue
to allow roving wiretaps, but it places a reasonable limit on these so-
called John Doe roving wiretaps. In order to obtain a John Doe roving
wiretap, the Government would now be required to describe the specific
target of the wiretap to the judge who issues the wiretap order. This
will help protect innocent Americans.
Under the PATRIOT Act, the FBI can search your home without telling
you until some later date. These sneak-and-peek searches are not
limited to terrorism cases.
Like the SAFE Act, the conference report would require the Government
to notify a person who is subjected to a sneak-and-peek search within a
specific period of time, 30 days, rather than the undefined delay
currently permitted by the PATRIOT Act. The court could allow
additional delays of notice under compelling circumstances.
Section 215 of the PATRIOT Act is often called the library records
provision. This section has been the focus of much of our efforts.
Under section 215, the FBI can obtain your library, medical,
financial, or gun records simply by claiming they are seeking the
records for a terrorism investigation. If the FBI makes this claim, the
court must issue an order. It has no ability to even question the FBI
about why they want to look into your sensitive personal information.
This type of court approval is nothing more than a rubberstamp.
Defenders of this section often compare to it a subpoena by a grand
jury in a criminal case, but it couldn't be more different. A person
who receives a grand jury subpoena can challenge it in court. A person
who receives a section 215 order cannot go to a judge to challenge the
order, even if he believes his rights have been violated.
Courts have held that it is unconstitutional to deny someone the
right to go to court to challenge an order like this.
Also, unlike a person who receives a grand jury subpoena, the
recipient of a section 215 gag order is subject to an automatic
permanent gag order.
And a person who receives a Section 215 order has no right to go to a
judge to challenge the gag order. Courts have held that gag orders that
cannot be challenged in court violate the first amendment.
Like the SAFE Act, the PATRIOT Act conference report, as amended by
Senator Sununu's bill, will place some reasonable checks on section
215.
In order to obtain a section 215 order, the Government will now have
to convince a judge that they have reasonable grounds to believe the
information they seek is relevant to a terrorism investigation. The
court will have the ability to question the FBI before issuing a
section 215 order.
This is an improvement, but I'm still concerned that the Government
is not required to show a connection to a suspected terrorist in order
to obtain section 215 order. I will speak more about this later.
The FBI will also be required to follow so-called minimization
procedures. These procedures should help to protect innocent Americans
by limiting the retention and dissemination of information obtained
with section 215 orders.
The recipient of section 215 order will now have the ability to
consult with an attorney.
Judicial oversight will also be enhanced. The recipient of a section
215 order will now have the right to challenge the order in court on
the same grounds as he could challenge a grand jury subpoena.
And, if Senator Sununu's bill passes, the recipient of a section 215
order will also have the right to challenge the gag order in court.
The PATRIOT Act expanded the Government's authority to use national
security letters which are also known as NSLs.
An NSL is a type of administrative subpoena. It is a document signed
by an FBI agent that requires businesses to disclose the sensitive
personal records of their customers.
An NSL does not require the approval of a judge or a grand jury. A
business that receives an NSL is subject to an automatic, permanent gag
order.
As with section 215 orders, a person cannot go to a judge to
challenge an NSL or the NSL's gag order, and he can't consult with an
attorney.
Like the SAFE Act, the PATRIOT Act conference report, as amended by
Senator Sununu's bill, will place some reasonable checks on NSLs.
Most important, the Sununu bill clarifies that the government cannot
issue a national security letter to a library that is functioning in
its traditional role, which includes providing computer terminals with
basic Internet access.
As with section 215 orders, the recipient of an NSL will now have the
right to consult with an attorney, and the right to challenge the NSL
or the NSL's gag order in court.
Like the SAFE Act, the conference report will also require public
reporting on the use of PATRIOT Act authorities, including the number
section 215 orders and NSLs issued by the Government.
Finally, the conference report includes a sunset on three provisions
of the law, including section 215, so Congress will again have an
opportunity to review the PATRIOT Act at the end of 2009.
As I said earlier, the conference report is not perfect. That's the
nature of a compromise.
I am especially concerned about the need for additional checks on
section 215 and national security letters.
The conference report would allow the Government to use section 215
orders or NSLs to obtain sensitive personal information without showing
some connection to a suspected terrorist. I fear that this could lead
to Government fishing expeditions that target innocent Americans.
In this country, you have the right to be left alone by the
Government unless you have done something to warrant scrutiny.
When the FBI is conducting a terrorism investigation they shouldn't
be able to snoop through your library, medical, or gun records unless
you have some connection to a suspected terrorist.
I am also very concerned about unnecessary limits on judicial review
of section 215 national security letter gag orders. The conference
report requires the court to accept the Government's claim that a gag
order should not be lifted, unless the court determines the Government
is acting in bad faith. This will make it difficult to get meaningful
judicial review of a gag order.
As I said earlier, our bipartisan coalition is going to keep working
for additional reforms to the PATRIOT Act.
In fact, Senator Craig, Senator Sununu and I plan to introduce an
updated version of the SAFE Act to address the problems that still
exist with the PATRIOT Act.
Our great country was founded by people who fled a government that
repressed their freedom in the name of security. The Founders wanted to
ensure that the United States Government would respect its citizens'
liberties, even during times of war. That's why there is no wartime
exception in the Constitution.
The 9/11 Commission said it best: The choice between security and
liberty is a false one. Our bipartisan coalition believes the PATRIOT
Act can be revised to better protect civil liberties. We believe it is
possible for Republicans and Democrats to come together to protect our
fundamental constitutional rights and give the Government the powers it
needs to fight terrorism. We believe we can be safe and free.
That's why we're going to reauthorize the PATRIOT Act with new checks
and balances. And that's why we'll keep fighting for additional reforms
to the PATRIOT Act.
Senators Craig, Sununu, and others have joined me in improving the
PATRIOT Act as originally written. There
[[Page S1388]]
are still serious problems with the PATRIOT Act, but I think this
conference report, as amended by Senator Sununu's bill, is a positive
step forward. That is why I am supporting it.
I promise, as they say, eternal vigilance, watching this
administration and every administration to make certain they don't go
too far. If they overstep, if they step into areas of privacy and
constitutional rights, I will speak out and do my best to change the
PATRIOT Act and make it a better law.
I yield the floor.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Iowa.
Report on Fda Approval Process for Vns
Mr. GRASSLEY. Mr. President, I want to address my fellow Senators, in
cooperation with my friend, Senator Baucus from Montana, on an issue
that our respective staffs have been working on together for a long
time. As chairman of the Finance Committee and as ranking member, we
are releasing today a report. We come to the floor with our duties in
mind to our constituents, to Medicaid and Medicare beneficiaries, and
to all Americans, to speak of urgent matters that should concern all of
us.
For more than 2 years, I have followed, with increasing concern, the
performance of the Food and Drug Administration. It seems as though
every week, if not every day, some new danger or risk is brought to
light about an FDA-approved drug or device. As chairman and ranking
member of the committee, Senator Baucus and I have a responsibility to
American taxpayers to ensure that Medicare and Medicaid programs pay
for medical products that have been appropriately approved in
accordance with all laws and regulations. Whether a product is safe,
whether a product is effective is not only a major public safety
concern; it also has important financial concerns.
We understand there is a human element to the Food and Drug
Administration's approval process. As a society, we recognize the
anguish of families who must rely on the development of innovative,
experimental, new medical products and treatments that may or may not
save the life of a loved one. Our Nation is lucky to have a private
marketplace that is incredibly resourceful and prolific in the field of
medicine. An integral role of the Food and Drug Administration is to
get these potentially lifesaving products to the market without undue
delay. We also have a Government-regulated system where patients have
the option to receive potentially lifesaving but unproven products by
participating voluntarily in clinical trials. In the end, however, our
Nation's well-founded medical system, despite its weaknesses, must
always rest on sound science.
The report we are releasing today focuses on the FDA's approval
process for medical devices. It is indisputable that all medical
devices carry risks, but Food and Drug Administration approval is still
considered the gold standard for safety and effectiveness. However, our
committee staff report raises legitimate questions about the FDA's
decision to approve a specific medical device. Last February, a number
of concerns were raised to our committee about an implantable device
called the vegus nerve stimulator or VNS, as I will refer to it. This
product, VNS, is manufactured by a company called Cyberonics. Senator
Baucus and I asked our committee staff to review the concerns that were
given to us and report their findings. This report has three major
findings which I will summarize briefly.
First, the Food and Drug Administration approved VNS for treatment-
resistant depression, a new indication for this surgically implanted
device. That was based upon a senior manager overruling more than 20
Food and Drug Administration scientists, medical, and safety officers,
as well as managers, who reviewed the data on VNS. The high-level
official approved the device despite a resolute conclusion by many at
the FDA that the device did not demonstrate a reasonable assurance of
safety and effectiveness.
Second, the Food and Drug Administration has not made public the
level of internal dissent involved in this device approval, despite the
fact that the FDA has publicized differences of scientific opinion
within the agency when it has announced other controversial regulatory
decisions.
Third, the Food and Drug Administration has not ensured that the
public has all the accurate, science-based information on the safety
and effectiveness of the VNS for treatment-resistant depression. So
health care providers, relying on the FDA's information about this
device, may not be able to convey complete risk information to each
patient.
In the end, this senior Food and Drug Administration official not
only overruled more than 20 Food and Drug Administration employees, but
he stated to our committee staff that the public would not be made
aware of the scientific dissent over whether the device is reasonably
safe and effective. Until today, this official's detailed conclusions
remain confidential and unavailable to the public. We are releasing
these confidential conclusions in the appendix to the report. Some of
his own conclusions raise serious questions in our minds. For example,
I quote from his override memorandum:
I think it needs to be stated clearly and unambiguously
that [certain VNS data] failed to reach, or even come close
to reaching, statistical significance with respect to its
primary endpoint. I think that one has to conclude that,
based on [that] data, either the device has no effect, or, if
it does have an effect, that in order to measure that effect
a longer period of follow-up is required.
The events and circumstances surrounding the Food and Drug
Administration's review and approval of VNS for treatment-resistant
depression, which you will find detailed in this report we are
releasing, raises critical questions about the Food and Drug
Administration's so-called ``authoritative'' approval process. I am
greatly concerned that the Food and Drug Administration standard for
approval may not have been met here. If that is the case, it raises
further difficult questions, including whether Medicare and Medicaid
dollars should be used to pay for this device now.
Accordingly, we are forwarding the report to Secretary Leavitt,
Administrator McClellan, and Acting Commissioner von Eschenbach for
their consideration and comment. These are difficult matters that
deserve their full attention.
Before I close, I commend the commitment and dedication of the more
than 20 FDA scientists who tried to do the right thing in this case, as
they probably do in every case, and not stray from evidence-based
science. I applaud their effort on behalf of the American people.
I ask unanimous consent that the executive summary of the report be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
I. Executive Summary
The United States Senate Committee on Finance (Committee)
has exclusive jurisdiction over the Medicare and Medicaid
programs. Accordingly, the Committee has a responsibility to
the more than 80 million Americans who receive health care
coverage under Medicare and Medicaid to oversee the proper
administration of these programs, including the payment for
medical devices regulated by the Food and Drug Administration
(FDA). Given the rising health care costs in this country,
and more importantly, in the interest of public health and
safety, Medicare and Medicaid dollars should be spent on
drugs and devices that have been appropriately deemed safe
and effective for use by the FDA, in accordance with all laws
and regulations.
In February 2005, Senator Charles Grassley (R-IA) and
Senator Max Baucus (D-MT), Chairman and Ranking Member of the
Committee, initiated an inquiry into the FDA's handling of
Cyberonics, Inc.'s (Cyberonics) pre-market approval
application to add a new indication--treatment-resistant
depression (TRD)-to Cyberonics's Vagus Nerve Stimulation
(VNS) Therapy System, an implanted pulse generator. The
Chairman and Ranking Member initiated the inquiry in response
to concerns that were raised regarding Cyberonics's VNS
Therapy System for TRD. On July 15, 2005, the FDA approved
the device for TRD.
The investigative staff of the Committee reviewed documents
and information obtained and received from the FDA and
Cyberonics and found the following:
As the federal agency charged by Congress with ensuring
that devices are safe and effective, the FDA approved the VNS
Therapy System for TRD based upon a senior official
overruling the comprehensive scientific evaluation of more
than 20 FDA scientists, medical officers, and management
staff who reviewed Cyberonic's application over the course of
about 15 months. The official approved the device despite the
conclusion of the FDA reviewers that the data provided by
Cyberonics in support of its application for a
[[Page S1389]]
new indication did not demonstrate a reasonable assurance of
safety and effectiveness sufficient for approval of the
device for TRD.
The FDA's formal conclusions on safety and effectiveness do
not disclose to doctors, patients or the general public the
scientific dissent within the FDA regarding the effectiveness
of the VNS Therapy System for TRD. The FDA has publicized
differences of scientific opinion within the agency when it
has announced other controversial regulatory decisions.
Throughout the review of Cyberonics's application, the team
of FDA scientists, medical officers, and management staff
involved recommended that the device not be approved for TRD.
However, at every stage of the review, the team was
instructed by the FDA official, who ultimately made the
decision to approve the device, to proceed with the next
stage of pre-market review.
The FDA has not ensured that the public has all of the
accurate, science-based information regarding the VNS Therapy
System for TRD it needs. Health care providers relying on the
FDA's public information on the safety and effectiveness of
this device may not be able to convey complete risk
information to their patients, because not all of the
relevant findings and conclusions regarding the VNS Therapy
System have been made available publicly.
The FDA has an important mission:
The FDA is responsible for protecting the public health by
assuring the safety, efficacy, and security of human and
veterinary drugs, biological products, medical devices, our
nation's food supply, cosmetics, and products that emit
radiation. The FDA is also responsible for advancing the
public health by helping to speed innovations that make
medicines and foods more effective, safer, and more
affordable; and helping the public get the accurate, science-
based information they need to use medicines and foods to
improve their health.
As part of that mission, the FDA weighs the risks and
benefits of a product, in this case a medical device, to
determine if the product is reasonably safe and effective for
use.
The facts and circumstances surrounding the FDA's approval
process for the VNS Therapy System for TRD raise legitimate
questions about the FDA's decision to approve that device for
the treatment of TRD. While all implantable medical devices
carry risks, it is questionable whether or not the VNS
Therapy System for TRD met the agency's standard for safety
and effectiveness. The FDA's approval process requires a
comprehensive scientific evaluation of the product's benefits
and risks, including scientifically sound data supporting an
application for approval. Otherwise health care providers and
insurers as well as patients may question the integrity and
reliability of the FDA's assessment of the safety and
effectiveness of an approved product. In the case of VNS
Therapy for TRD, the FDA reviewers concluded that the data
limitations in Cyberonics's application could only be
addressed by conducting a new study prior to approval.
However, in the present case, instead of relying on the
comprehensive scientific evaluation of its scientists and
medical officers, it appears that the FDA lowered its
threshold for evidence of effectiveness. Contrary to the
recommendations of the FDA reviewers, the FDA approved the
VNS Therapy System for TRD and allowed Cyberonics to test its
device post-approval.
In addition, given the significant scientific dissent
within the FDA regarding the approval of the VNS Therapy
System for TRD, the FDA's lack of transparency with respect
to its review of the device is particularly troubling. The
FDA has limited the kind and quality of information publicly
available to patients and their doctors and deprived them of
information that may be relevant to their own risk-benefit
analysis. Patients and their doctors should have access to
all relevant findings and conclusions from the comprehensive
scientific evaluation of the safety and effectiveness of the
VNS Therapy System for TRD to enable them to make fully
informed health care decisions.
Mr. GRASSLEY. I yield the floor for my colleague.
The PRESIDING OFFICER. The Senator from Montana is recognized.
Mr. BAUCUS. Mr. President, I join the chairman of the Finance
Committee, Senator Grassley, in commending our Finance Committee staff
on the report that we release today. This report deals with an
important public safety matter. The Food and Drug Administration
approval process has long been considered the gold standard in this
country. We rely on the FDA to review drugs and to review medical
devices. We rely on the FDA to tell us, by providing a seal of
approval, that drugs and devices are safe and that they are effective.
While all drugs and devices carry some risk, some are more risky than
others. But if the FDA determines a drug or device is safe to bring to
the market, Americans generally feel we can use the treatment without
undue concern. We Americans rely on the FDA to ensure that
manufacturers provide sufficient warnings of their products' risks so
that health care providers and patients can make informed health care
decisions.
The FDA has a complex approval process. A review team, including
scientists, doctors, and specialists, surveys all the data and makes a
recommendation regarding whether to approve a drug or device. The
review team then forwards its recommendation to management for review.
This process can be lengthy and intense.
Last year, concerns were brought to the Finance Committee regarding
how the review process had unfolded in the case of a device known as
the VNS Therapy system. Cyberonics makes the VNS system and was seeking
approval of the device for use in patients with treatment-resistant
depression. Chairman Grassley and I asked our committee staffs to look
into what had gone on.
The Finance Committee has the responsibility for the Medicare and
Medicaid Programs and the millions of Americans who receive health
care, including the use of safe and proper medical devices. Medicare
and Medicaid only pay for drugs and devices which FDA has approved. So
approval affects patients' budgets and the Federal budget, as well.
In the case of the VNS Therapy system, the FDA review team was
comprised of more than a dozen FDA staff, including doctors,
scientists, safety officers, and statisticians. This review team
unanimously recommended against FDA approval. The team argued that the
data were insufficient to justify approval and that additional
premarket testing was in order. Three levels of management concurred
with the team's recommendation. The uppermost manager--the Director of
the Center for Devices--disagreed. With the stroke of a pen, he
overruled the analysis and conclusions of his staff, and he approved
the device. Now the FDA seal of approval has been attached to that VNS
Therapy system by one person, over the objections of several technical
experts who studied the device.
Without this report from the Finance Committee, the public would not
know that the team of scientists and doctors who reviewed this device
did not believe it should be approved. Without this report, there would
be no way for providers and patients to make fully informed health care
decisions because they would not be aware of all of the risks.
In short, we present this report out of a concern for public safety.
We believe that doctors and patients considering this device should
know that it was approved over the objection of a team of seasoned
scientists. It is important for the public to know what the FDA
scientists and doctors thought about the risk to which patients would
be exposed. The FDA has not made public any information regarding the
level of scientific dissent. So I am glad we have this report.
I am greatly concerned about this unusual turn of events at the FDA.
I hope this is not a sign of things to come. I hope that FDA approval
can remain the gold standard, and I hope Medicare and Medicaid can
continue to pay for FDA-approved products knowing they are safe.
I thank Chairman Grassley for his work. He has worked diligently, as
he always does, particularly when wrongs should be exposed. I
appreciate it when we can work together to improve the efficacy and
safety of American health care.
I yield the floor.
The PRESIDING OFFICER. The Senator from Montana is recognized.
(The remarks of Mr. Baucus and Mr. Durbin pertaining to the
introduction of S. 2303 are located in today's Record under
``Statements on Introduced Bills and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. DURBIN. Mr. President, at this moment, I wish to address the bill
pending before the Senate, and that is S. 2271.
I commend Senator John Sununu of New Hampshire, who is here in the
Chamber. Were it not for his hard work, we would not be here today. For
weeks, while many of us were doing other things back home, Senator
Sununu was working assiduously with the White House to find a way to
address some very vexing and challenging issues when it came to
modifying the PATRIOT Act. He has done an excellent job. I commend him
and tell him that I have enjoyed working with him
[[Page S1390]]
over the last 2 years, where we have crossed party lines and tried to
find ways to keep the PATRIOT Act as a tool to make America safe but
also at the same time to protect our basic liberties.
Every step of the way, as we considered changes to the PATRIOT Act,
we have been supported by our Nation's librarians. These are wonderful
men and women--professionals--who are dedicated to the libraries across
America, which are such rich resources. I thank the librarians of
America, especially for their heroic efforts to amend the PATRIOT Act
in a responsible way and, equally as important, to defend our
Constitution.
I understand that section 5 of Senator Sununu's bill, S. 2271, will
help protect the privacy of Americans' library records. I ask the
indulgence of the Chair that I might enter into a colloquy with Senator
Sununu relative to section 5. I would like to ask Senator Sununu,
through the Chair, if he could explain to me what section 5 will
accomplish.
Mr. SUNUNU. Mr. President, I am pleased to be on the floor today and
pleased to be able to see the light at the end of the tunnel on PATRIOT
reauthorization, thanks to the work of Senator Durbin and others. We
have legislation before us that will make the adjustments to the
PATRIOT Act reauthorization conference report mentioned by the Senator
from Illinois. He specifically mentioned section 5 of our legislation.
As he began to describe, section 5 is intended to clarify current law
regarding the applicability of National Security Letters to libraries.
A National Security Letter is a type of administrative subpoena, a
powerful tool available to law enforcement officials, to get access to
documents. It is a document signed by an FBI agent that requires a
business to provide certain kinds of personal records on their
customers to the Government. These subpoenas are not approved by a
judge before being issued.
What we did in this legislation is add clarifying language that
states that libraries operating in their traditional functions: lending
books, providing access to digital books or periodicals in digital
format, and providing basic access to the Internet would not be subject
to a national security letter. There is no National Security Letter
statute existing in current law that permits the FBI explicitly to
obtain library records. But, as was indicated by the Senator from
Illinois, librarians have been concerned that existing National
Security Letter authority is vague enough so that it could be used to
allow the Government to treat libraries as they do communication
service providers such as a telephone company or a traditional Internet
service provider from whom consumers would go out and get their access
to the Internet and send and receive e-mail.
Section 5 clarifies, as I indicated, that a library providing basic
Internet access would not be subject to a national security letter,
simply by virtue of making that access available to the public.
Mr. DURBIN. I thank the Senator from New Hampshire. It is my
understanding that most public libraries, as he explained, offer
Internet access to the public. Because of this, they are concerned that
the Government might consider them to be communications service
providers similar to the traditional providers, such as AT&T, Verizon,
and AOL.
So if I understand it correctly, your bill clarifies that libraries,
simply because they provide basic Internet access, are not
communications service providers under the law and are not subject to
national security letters as a result. I ask the Senator from New
Hampshire, through the Chair, is that a correct conclusion?
Mr. SUNUNU. Mr. President, I absolutely believe that the conclusion
of the Senator from Illinois is correct. A library providing basic
Internet access would not be subject to a National Security Letter as a
result of that particular service and other services that are very much
in keeping with the traditional role of libraries.
Some have noted or may note that basic Internet access gives library
patrons the ability to send and receive e-mail by, for example,
accessing an Internet-based e-mail service. But in that case, it is the
Web site operator who is providing the communication service--the
Internet communication service provider itself--and not the library,
which is simply making available a computer with access to the
Internet.
So I certainly share the concerns of the Senator from Illinois and
others who have worked very long and hard on this and other provisions.
I think it does add clarity to the law as he described, in addition to
providing other improvements to the PATRIOT Act as they relate to civil
liberty protections. All along, this has been about providing law
enforcement with the tools that they need in their terrorism
investigations while, at the same time, balancing those powers with the
need to protect civil liberties. I think, in the legislation before us,
we have added clarity to the law in giving access to the courts to
object to section 215 gag orders and, of course, striking a very
punitive provision dealing with counsel and not forcing the recipient
of a National Security Letter to disclose the name of their attorney to
the FBI.
All of these are improvements to the underlying legislation, and I
recognize that we had a overwhelming, bipartisan vote today to move
forward on this package. I anticipate that we will have similar
bipartisan votes in the days ahead to conclude work on this legislation
and get a much improved PATRIOT Act signed into law.
Mr. DURBIN. I thank the Senator from New Hampshire, as well, because
that clarification is important. So if a library offers basic Internet
access, and within that access a patron can, for example, send and
receive e-mail by accessing an Internet-based e-mail service such as
Hotmail, for example, that does not mean the library is a
communications service provider and, therefore, it does not mean that a
library could be subject to these national security letters of
investigation.
By way of comparison, a gas station that has a pay phone isn't a
telephone company. So a library that has Internet access, where a
person can find an Internet e-mail service, is not a communications
service provider; therefore, it would not fall under the purview of the
NSL provision in 18 U.S.C. 2709. It is a critically important
distinction. I thank the Senator from New Hampshire for making that
clear and for all of his good work on this bill.
Libraries are fundamental to America. They symbolize our access to
education. They are available to everyone, regardless of social or
economic status.
When we first introduced the SAFE Act, I went to the Chicago Public
Library to make the announcement. The library was established in 1873,
and for over 130 years it has given the people of the City of Chicago
the ability to read and learn and communicate. Here is what the mission
statement says at that public library:
We welcome and support all people and their enjoyment of
reading and pursuit of lifelong learning. We believe in the
freedom to read, to learn, and to discover.
We have to ensure, in the Senate and in Congress, in the bills that
we pass, including the PATRIOT Act, that this freedom to read, learn,
and discover is preserved for our children and our grandchildren.
Mr. President, I yield the floor and I suggest the absence of a
quorum.
The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ALEXANDER. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unfunded Mandates
Mr. ALEXANDER. Mr. President, the National Governors Association
meeting will be held in Washington during the week we return from
recess. That brings back some fond memories for me because I remember
the 8 years I served as Governor. Each time we came here, and the
highlight of it every year, was a dinner in the White House with the
Chief Executive of the United States and the chief executive of each of
our States.
While the Governors are in town, or as they are coming to town, I
want to take the opportunity to wave the lantern of federalism on a few
issues under discussion here in the Senate that will affect strong
State and local governments. I know the Presiding Officer cares deeply
about the same issues because his service as mayor made him
[[Page S1391]]
aware of those issues, just as I was as Governor.
During the year after I came to the Senate, when we were debating the
Internet tax issue, someone said in exasperation that I had appeared
not to have gotten over being a Governor. I hope that can be said on
the day I leave here, because most of our politics here in the Senate
is about how we resolve conflicts of principles. One of the most
important principles upon which our country is founded is the principle
of federalism, the idea that we are a big, diverse, complex country and
that we need strong States and strong cities and strong counties and
strong communities to absorb all of our differences. We are not a
small, homogeneous nation and our federalism is absolutely key to our
success as a country.
I have not gotten over being Governor. It causes me especially to
remember how the Republican majority came to power in 1994, a majority
of which I am proud to be a part. There was a Contract with America. I
wasn't part of the Congress at that time, but I remember it very well.
I remember one of the most important aspects of the Contract With
America was: no more unfunded Federal mandates. I remember also that a
large number of Republicans, along with Leader Gingrich, stood on the
Capitol steps and said: If we break our promise, throw us out.
Since I wish to make sure our majority doesn't get thrown out, I want
to remind all of us, including many who serve in the Senate, who voted
in 1995 to stop unfunded Federal mandates, this still is an important
part of our responsibilities here. I have three examples of that in our
discussions.
The Senate recently reaffirmed its commitment to the idea of avoiding
unfunded Federal mandates. I suppose I should stop for a moment and
explain what I mean by ``unfunded Federal mandate.'' That is a
Washington phrase we throw around. Here is the way I understand it.
Nothing used to make me madder as Governor--and I daresay it might also
be true of the Presiding Officer, who was a mayor--than for some
Senator or Congressman to come up with a big idea in Washington, pass
it into law, hold a press conference and take credit for it, and send
the bill to me to pay at the State capitol. Then the next thing you
know, that same politician would be back somewhere in Tennessee making
a big speech about local control. That is an unfunded Federal mandate--
when the big idea is here and the law is passed here and then the bill
is sent down to the county commissioner or to the mayor or to the
legislature or to the Governor and it is said: It was our idea but you
pay for it.
Ten years ago when Bob Dole was the majority leader, the first thing
the new Republican Congress did--it was called S. 1 at that time--was
to pass the Unfunded Mandates Reform Act. It created a new point of
order that could be raised against legislation imposing unfunded
Federal mandates on State and local governments. Everyone felt pretty
good about that because they said this new law will create a so-called
penalty flag that can be thrown when some Federal official came up with
a good idea, passed it into law, and sent the bill back to us in the
States. However, until recently that penalty flag has never been
thrown, not in the first 10 years of its existence. However, last year,
in our Budget Act, that point of order was given some more teeth. In
the budget resolution under which we operate today, an unfunded mandate
point of order raised in the Senate requires 60 votes in order to be
waived instead of the simple majority required under the Unfunded
Mandates Reform Act.
In October of last year, 2005, this 60-vote point of order was raised
for the first time in the Senate against two amendments to an
appropriations bill that would have raised the minimum wage. That would
have been an unfunded Federal mandate. This new provision was put into
the Budget Act by Senator Gregg, who had been the Governor of New
Hampshire. It had my support as well as that of a number of other
Senators. So I would like to call to the attention of my colleagues,
and the Governors as they are coming to town, three issues that are
currently under discussion here that raise the specter of unfunded
Federal mandates.
No. 1 is the taxation of Internet access issue. State and local
governments and members of the telecommunications industry, I believe,
need to come up with a solution to that question before the current
moratorium expires in 2007.
No. 2, the Federal Government needs to fully fund the implementation
of the so-called REAL ID Act, which we passed last year and which has
to do with border security.
No. 3, the Federal Communications Commission needs to exempt colleges
and universities from expensive new requirements that will require
colleges to modify their computer networks to facilitate surveillance,
which will have the effect of adding about $450 to every tuition bill
across this country.
Let's take those one by one. First is the Internet access tax
moratorium. My colleagues will remember that after we had a spirited
debate that went on for about a year and a half, President Bush signed
into law the Internet Tax Nondiscrimination Act. There was a lot of
discussion, a lot of compromise, a lot of negotiation. What we were
arguing about was, on one hand we wanted to increase the availability
of high-speed Internet access to all Americans--that is a national
goal--but at the same time we didn't want to do harm to State and local
governments by taking away from them, as a part of our act, billions of
dollars upon which they relied for paying for schools, paying for
colleges, paying for other local services.
The bill we came out with at the end of 2004 was a good compromise
for several reasons. First, it was temporary, not permanent. It called
for a 4-year extension of the Internet access tax moratorium that was
already in place, so this one will expire in a year and a half.
Second, our agreement allowed States already collecting taxes on
Internet access to continue to do so. That was a part of the ``do no
harm'' theory that many of us championed.
Finally, it made clear that State and local governments could
continue to collect taxes on telephone services even if telephone calls
are made over the Internet, which they increasingly are.
In January of this year, the General Accounting Office released a
report interpreting the Internet Tax Nondiscrimination Act. The GAO
interpreted the moratorium in a more limited way than what I, and I am
sure many of the other Senators, intended when we were drafting the
bill.
While the interpretation may suit me fine because it goes in the
direction I was arguing, the GAO interpretation may demonstrate very
clearly how important it is to deal with this complex issue in some
other way. That is why it needs to be resolved by representatives of
industry and by mayors and Governors working together to suggest to us
a path for the future. I understand the National Governors Association
has convened meetings with representatives of the telecommunications
industry and State and local governments. I hope all the parties will
take those negotiations seriously, reinvigorate those efforts, and
present us with a workable compromise we can then consider and enact.
Let me suggest again the principles that I believe should guide this
discussion. No. 1, separate the issue of taxation and legislation. Both
are very complex issues that can have serious implications for industry
and State and local governments and consumers, but they are not the
same effects. The goal should be simplicity. Regulations surely ought
to be streamlined to allow new technology to flourish. Voice over
Internet protocol or, in plain English, making telephone calls over the
Internet, is very different than plain old telephone service, and our
regulatory structure needs to recognize that and be welcoming to this
change. The goal in taxing the industry should also be simplicity and
certainty. For example, a company that operates in almost 11,000 State
and local jurisdictions, all of whom might tax telecommunications,
might have to file more than 55,000 tax returns a year. No one wants to
see that happen and that is far too big a burden for a large company,
much less a small startup company. But in searching for a solution, we
do not want to do harm to State and local governments.
The Senator from California, the Senator from Delaware, the Senator
[[Page S1392]]
from Ohio--many Senators pointed out that State and local governments
rely heavily today on telecommunications taxes as a part of their tax
base.
In our State of Tennessee, our Governor said it is a matter of $300
million or $400 million in State revenues. That would be as much money
as we would raise from instituting an income tax. It is a lot of money.
So we should not take an action in Washington, even for a good purpose,
that has the effect of undercutting State and local decisionmaking. My
point very simply is, deregulate voice over Internet protocol? Yes. We
absolutely should do it. But we must find a way to do it that doesn't
force States and local governments to provide subsidies to the
telephone companies. If the Federal Government wants to provide a
subsidy to the telephone companies, the Federal Government ought to pay
for it and not create an unfunded Federal mandate.
The second example of the possibility of an unfunded Federal mandate
came with the passage of the REAL ID legislation. We are about to enter
into a debate about immigration. We hear about it all the time. It is a
serious problem. We have 10 million to 15 million people living in our
country who are illegally here. That is not right for a country that
honors the rule of law, and we have to fix it. One way some have
suggested to fix it was the so-called REAL ID law. But the effect of
that was basically to turn driver's license examiners in Tennessee and
every other State into CIA agents by making State driver's licenses
national ID cards, and then forcing the States to pay for it.
I don't want to talk today about whether it is a good idea or a bad
idea to turn State driver's license employees into CIA agents, or
whether we should have a national ID card. The fact is the law says
that is what they are going to do and that is what we are going to
have. What I want to talk about today is how do we pay for that.
REAL ID, according to the National Conference of State Legislators,
will cost States $500 million over 5 years to implement. That is $100
million a year. This is not technically an unfunded mandate because the
law actually gives States a choice, but here is the choice: In
Minnesota or Tennessee or any other State, either upgrade your driver's
licenses according to the Federal rules, or your residents will not
have the ability to collect their Social Security check or board an
airplane. So that is not much of a choice.
All across the country, because of the REAL ID law, this is a new
responsibility for States and it is going to cost a half billion
dollars. Yet in fiscal year 2006, only $38 million was appropriated for
States to cover the cost of REAL ID. In fiscal year 2007, the
President's budget contains no funding for REAL ID, even though $33.1
billion is to be spent on homeland security.
I intend to work this year to see that REAL ID does not become an
unfunded mandate. If the Federal Government wants to create a national
ID card and they want to force the States to do it, then the Federal
Government ought to pay for it.
My final example: the Federal Communications Commission needs to make
sure that compliance with the Communications Assistance for Law
Enforcement Act, called CALEA, does not become an unfunded Federal
mandate on colleges and universities.
This CALEA law is a law that communications systems have to be
engineered in such a way as to make it easy for Federal agents to
subject phone calls to surveillance. In August of last year, the
Federal Communications Commission, recognizing that more and more
telephone calls are being made over the Internet, extended the
requirements of this law to colleges and university computer networks.
Implementing this order, according to technology experts, could cost
$5 billion to $6 billion, a figure that translates into a $450 increase
in annual tuition at most American universities.
The pages here who are listening to this are already looking forward
to tuition increases when they go to college that are high enough, and
they don't need another $450 on top of it.
Over the last several years, tuition college costs have increased
faster than inflation. Public school tuition jumped 10 percent in 1
year--in 2004. Even though Federal funding for colleges and university
has gone up, State funding has been fairly flat. So we have seen a big
increase in tuition, and this is another $450.
Given these concerns, even though the FCC might have a laudable
objective in making it easier to overhear or keep track of phone calls
in computer networks on college campuses, if the Federal Government
wants to order that, the Federal Government ought to pay for it.
I have written to the FCC urging it to exempt colleges and
universities from the requirement of August 2005 in order to allow time
for the development of an alternative to this $450 tuition increase.
I ask unanimous consent that my letter to the FCC on this issue be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, February 6, 2006.
Hon. Kevin Martin,
Chairman, Federal Communications Commission, Washington, DC.
Dear Chairman Martin: I am writing to urge the Commission
to exempt private telecommunications networks operated by
colleges, universities, and research institutions from
coverage under the Communications Assistance for Law
Enforcement Act (CALEA). Requiring these networks to come
into compliance with the provisions of CALEA, according to
the American Council on Education (ACE), could cost billions
of dollars for new equipment alone. These compliance costs
would constitute an enormous unfunded federal mandate and
would more than likely be passed on to students in the form
of increased college tuition.
According to the statute, private communications networks
are not subject to CALEA. The Commission's order states that
higher education networks ``appear to be private networks for
the purposes of CALEA.'' However, other language in the order
suggests that to the extent that these networks are connected
to the Internet they are subject to CALEA. In considering how
to resolve this apparent conflict, the Commission should take
into account the enormous costs to higher education that
would result if these private networks are not exempted.
According to technology experts employed by higher education
institutions, compliance costs could amount to billions of
dollars for new switches and routers. Additional costs would
be incurred for installation and the hiring and training of
staff to oversee the operation of the new equipment. Cash-
strapped schools--particularly state-funded, public schools--
would be faced with the choice of bearing these additional
costs or, according to ACE, increasing annual tuition by an
average of $450. Coming on the heels of ten years of college
costs increasing faster than inflation, such a tuition
increase would make it even more difficult for students to
take advantage of higher education in the United States.
At this time, no evidence has been presented that the
current practice with regard to wiretaps within college and
university networks has proven problematic. In 2003, only 12
of 1,442 state and federal wiretap orders involved computer
communications. According to the Association of
Communications Technology Professionals in Higher Education,
few, if any, of those wiretaps involved college and
university networks.
With the explosive growth of voice over Internet Protocol
(VoIP) services in recent years, the number of wiretaps
involving computer communications is likely to increase.
However, before sending a multi-billion dollar bill to U.S.
college students, I would urge the Commission to consider an
exemption for these private networks. Such an exemption could
give colleges and universities more time to work with the FCC
to come up with a cost effective way to support law
enforcement efforts with regard to computer communications. I
appreciate your consideration of this request.
Sincerely,
Lamar Alexander.
Mr. ALEXANDER. Mr. President, these are some of the big ideas in
Washington, all of which may be laudable. The idea of freeing high-
speed Internet from overregulation and subsidizing it, the idea of
national ID cards administered when you get your driver's license so
that we can do a better job of protecting our borders, and the idea of
reengineering computer systems on college campuses so that it will be
easier for us to fight the war against terrorists--all three may be
wonderful ideas, but all three amount to unfunded Federal mandates, if
they are done the wrong way.
I began my remarks by reminding all my colleagues--and especially our
colleagues on this side of the aisle, those in the majority--that the
Republican Party came to a majority in 1994 on a platform of no more
unfunded mandates. Republican leaders said: If we break our promise,
throw us out. I don't want us thrown out any more than I want any more
unfunded Federal mandates.
So my purpose today, as the Governors begin to come to town, is to
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wave the lantern of federalism a little bit and raise a red flag to
remind my colleagues that there is now a 60-vote point of order for any
unfunded Federal mandates going through here and that I and others will
be watching carefully to make sure that we keep our promise.
This is a body in which we debate principles, and one of the most
important principles that we assert is the principle of federalism. It
does not always trump every other principle that comes up, but my
feeling is it has been too far down. I want to raise it up higher, and
I intend to use that 60-vote point of order to assert the principle of
federalism when unfunded Federal mandates appear on this floor.
Thank you, Mr. President. I yield the floor. 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. KYL. 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. KYL. Mr. President, I wish to speak for a moment, first of all,
about the process we are going through and then about the substance of
a couple of amendments that our colleague from Wisconsin would have
liked to have introduced and have a vote on it with respect to the
PATRIOT Act.
Our constituents might be wondering why we are on the floor of the
Senate on this Thursday afternoon discussing the PATRIOT Act. After
all, haven't we passed it? Of course, the answer is, in a sense, we
have passed it now several times. But there are colleagues on the other
side of the aisle who have decided that rather than let the will of the
Senate be carried out with adoption of the PATRIOT Act so this bill can
be sent to the President so he can then sign it, thus reauthorizing the
act for another 4 years and giving the tools to fight terrorism to our
intelligence and law enforcement officials that, rather, they are going
to make us comply with all of the procedural technicalities which they
can throw in our way which accomplishes absolutely nothing but requires
us to take several more days to finish the process.
What can be gained from this? Nothing at all except that we waste
more time thus making it more likely that we will not have time to do
other business of the Senate, especially as it gets toward adjournment
later on in the year.
What we are seeing is taking something very important for the
protection of the American people--the PATRIOT Act--and using it for
what I believe are improper purposes and simply delay action in the
Senate so that we will have less time to act on other items.
There is no basis for delaying the PATRIOT Act. The votes are there
to go to the conference and have the House of Representatives approve
it, again, as it already has, so it can be sent to the President. There
are no amendments that are going to be brought up. We are going to have
a final vote on Tuesday--and that is it. But rather than being able to
accomplish that result today, we are having to waste all of this time.
What kind of a message does this send to our allies who are, first of
all, a little skittish about some of the news leaks about our
surveillance programs in which they participate, to some extent. We get
good information from our intelligence service, and I suspect they are
worried about the lack of control over our intelligence process. They
are not sure, I suspect, what to make of this debate about the PATRIOT
Act. They thought we had it resolved so they could work with it on the
basis of the laws they understood. They are not sure.
I often wonder what Osama bin Laden is thinking. I suspect he is not
getting live coverage, but he is probably getting reports somehow or
other, and he must be shaking his head: I thought I was pretty clear, I
am really making threats against these guys, and they are playing
around. They are not taking my threats seriously.
I, for one, am taking his threats very seriously--and so does the
Director of the CIA and so does Ambassador Negroponte.
Our intelligence officials and the people we have asked to do this
job for us take this threat dead serious. They have asked the Congress
to give them the tools they need to fight this terrorist threat. Part
of the tool is this PATRIOT Act, which has now been revised and
reformed and amended and gone over again, and, finally, there are now
three more changes to it--and it is done.
We have the ability now to simply pass it on to the President so he
can sign it, and for 4 more years everybody knows exactly what we have
to work with here.
Remember the 9/11 Commission following the tragedy of September 11,
when we asked this commission to analyze what we could have done better
and what went wrong, part of what they said was wrong was that there
was confusion in our law enforcement intelligence community about what
they could and should do.
In fact, legal interpretations differed so much they felt there was a
wall that separated the intelligence agencies and the law enforcement
agencies from even talking to each other.
One of the things the PATRIOT Act does is makes clear that there is
no such wall; that at least our law enforcement and intelligence folks
can talk to each other about these terrorists.
It is most distressing that we can't simply get this bill passed on
to the President so that everybody knows we have it reauthorized again
for another 4 years.
As I said, if there were any rationale behind this, other than simply
delaying so that we can't do other business, you might have something
to bite your teeth into and debate on the floor. But in truth, this
thing, when it passes, is going to be overwhelming. I doubt that we
will have a handful of votes against it. In fact, we may have less than
a handful, which would be 5 votes against this when we vote on it. But
I thought at least it would be interesting to see what some of the
objectives posed by some of the most vociferous critics of the PATRIOT
Act are, what those criticisms are, to examine them so we can see
exactly what the complaints are about, about what the President has
called an essential tool in the war on terrorism.
When you look at the suggested amendments--again, amendments which we
are not going to be voting on because we have already been through that
process three times and that has thankfully come to an end--I wanted to
examine a couple of amendments our colleague from Wisconsin would have
offered to illustrate it is not something we should be wasting our time
on. One of them has to do with something that has been in existence for
40 years, called national security letters. It is essentially a
subpoena for records that is just like a grand jury subpoena.
The county attorney or the district attorney goes to the grand jury
and says: I think we need the following documents in order to see
whether we can make our case. They write up this piece of paper, it is
delivered, say, to a hotel, and it asks for the business records: We
want to know everyone who checked in and out of the hotel for the last
3 days because we think maybe this person we are after may have checked
into this hotel--that would verify his presence on the night of the
murder, or whatever the case--so the hotel gives them the records.
There is no expectation of privacy in the records. When the hotel
clerk says: Here, sign in--and he turns it over, you can see exactly
everyone else who has signed into the hotel. There is nothing private
about it.
These national security letters have been used for many different
government agencies. If you are investigated for Medicare fraud, for
example, your doctor might get one of these security letters asking for
information.
Back when the security letters were authorized, we did not have
terrorism. Now we have terrorism in a big way in the last decade or
dozen years. Law enforcement authorities say: You know that process we
have of getting business records through the security letters is a good
process, and we ought to apply that to terrorism, too. Why not? If we
can investigate drug dealers or bank fraud criminals or people like
that with this kind of a subpoena for records, why shouldn't we be able
to do it for terrorists? That is a much bigger deal.
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Now for the first time our colleagues are saying maybe we should have
a court process to review this. That process exists in a totally
different context. If we want a much more formal procedure, there is
something called a Section 215 warrant. That is court supervised. This
is the sort of light version. If it is contested, of course, you have
to go to court. Most of the time the records are easily given because
they are not private records.
For the first time in the context of terrorism our colleagues are
saying this is an invasion of privacy and we need a court to review
this. My point is, it must be very confusing to law enforcement to have
Congress debating something like this when there is no rationale for
changing the law of 40 years that has been applied in everyday context
throughout the country, and all of a sudden where we would want the
most streamlined procedure, where we would care most about the cops,
where we need speed because we do not know whether an attack is
imminent, for example, in the situation that is much more serious, now
we are saying we need to throw some roadblocks in the way of the law
enforcement tool. It does not make sense.
I thought I would take two of the amendments--we are not going to be
debating the amendments, but this is the kind of thing raised as an
objection to the PATRIOT Act--the kind of amendments that would be
offered. It shows how unnecessary this approach is.
Let me note one other thing. There have been a lot of unnecessary
amendments attached to the PATRIOT Act. It is getting to the point
where I wonder whether we can really do the job, our law enforcement
community can really do the job that our constituents want it to do.
For example, by my count, the final bill that we will send to the
President requires 12 different reports or audits of our Nation's
antiterror investigators. Obviously, oversight is important. Reports to
the Congress are important. But it seems to me this is overkill. Our
intelligence agencies should be devoting their resources primarily to
investigating suspected terrorists, not to investigating each other.
All of these reports simply add to the burden they already have.
And we wonder sometimes after the fact, when a September 11
commission reports that they were too burdened to do their job, how
that could possibly be. Congress sometimes can be part of the problem
as well as part of the solution.
All of the changes have been negotiated and renegotiated, as I said.
At some point, we need to complete the bill. There are other amendments
I would like to add, but I had my chance and this is not the time to be
reopening the process for yet another round of amendments. It seems to
me we ought to be moving on.
I will mention this one amendment. It is actually an amendment
numbered 2893 that would have been offered by the Senator from
Wisconsin. This amendment would strip away the protections for
classified information about suspected terrorists and terrorist
organizations in the manner I discussed a moment ago. The amendment not
only risks revealing our level of knowledge of our data collection
methods to those who would do us harm, but it also threatens to
undermine our relations with allies who supply us with a lot of
information in this war or terror. They do not do that so it can be
given out to the public. The purpose of classification is to see that
the information remains secret. But this particular amendment would
allow classified information to be compromised during the challenge to
a nondisclosure order for national security letters or a FISA business
records order. FISA is the Foreign Intelligence Surveillance Act. It
serves no substantial interest but, as I said, can be very damaging to
our national security.
Let me put this in perspective. A section 215 order--which I
discussed before, which is a FISA order and is always accompanied by a
nondisclosure requirement--already is judicially reviewed, as I said.
There has to be a court action on it before it can be issued. And under
the amendment that was offered by the Senator from New Hampshire, a
third party recipient of a section 215 order also would be able to have
the courts review the section 215 order after its issue, which is a
second round of review. We have added that in. To my mind this is
redundant and unnecessary, but that has been added. That is one of
those compromises to enable us to get to this point.
Let me put this issue in perspective. A section 215 order, which
provides that second round of review, is much different than a national
security letter which, as I said earlier, has been around since the
1970s. They have always been accompanied by a nondisclosure
requirement. In other words, when the third party is served with this
subpoena that says: Would you please give us these records, you are not
supposed to tell the person that a law enforcement entity is seeking
the records. Obviously, you do not want to tip them off that you are
investigating them. There is a nondisclosure requirement. You cannot
tell the person that the Government has come asking for the records.
That requirement has always been automatic, and there has never been
any provision for any judicial review of that nondisclosure
requirement.
The national security letters, like virtually all other subpoenas,
are also not judicially reviewed before they are issued. The conference
report, for the first time in the history of these national security
letters, authorizes judicial review of the need for the nondisclosure
of the subpoenas. That was another compromise that was added. You not
only have it in the formal section 215 requirement but also in the less
formal security letter process. It allows the recipient to challenge
the nondisclosure requirement, and it ensures the automatic nature of
the nondisclosure requirement.
Now the FBI will have to evaluate each national security letter. The
nondisclosure of the NSL and the nondisclosure requirement can only
apply if the FBI certifies that the public disclosure of the service of
the NSL will harm national security. In other words, before it is
issued, the FBI has got to have a certification that the recipient of
the letter may not disclose it because to do so would be to harm
national security. That certification is based upon a very solemn
judgment exercised by the Attorney General.
Critics condemn this provision as giving only the illusion of
judicial review. When they say that, it bears mention that what they
are condemning is language that is being added to a statute that never
provided any kind of judicial review before that. For over a quarter of
a century there has been none whatsoever, and yet there is a complaint
this judicial review is not good enough. The sponsor of the amendment
argues that the standard employed for the review of the security letter
and the section 215 nondisclosure requirement is too high and can never
be met.
It is high, but it is very high for a reason. If a challenge is made,
the FBI needs to reevaluate whether there is a continued need for the
disclosure. But if the FBI certifies that disclosure of the NSL would
harm national security, that reclassification is conclusive. Now, when
you say ``conclusive,'' that is a very high standard.
In this respect, the proponents of the amendment are correct; that is
a high standard. But it is the only way the determination can work.
Think about it for a moment. Only the FBI, the people who are
investigating the matter, not individual district judges, are in a
position to determine when the disclosure of classified information
would harm national security. Obviously, that is not something that a
Federal district judge has any expertise on. You have to have,
literally, a trial to determine whether that proposition were true in
each particular case.
The reason nondisclosure might be necessary should be obvious. If a
suspected terrorist or his associates, for example, are funneling money
through a particular bank in a city, and if that bank were to make
public the fact that it had received a security letter requesting
records in a terrorism investigation, that disclosure would easily tip
off the terrorists and their associates that they are under
investigation. You do not want to do that.
It is also important that the FBI make the final determination
whether the disclosure would harm national security. And only the
agents in charge of these counterterrorism investigations will be able
to evaluate how the
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disclosure of a particular piece of information could potentially, for
example, reveal sources and methods of intelligence and who, therefore,
might be tipped off as a result of the disclosure.
We are all aware of this current controversy regarding the briefing
of select members of the Intelligence Committee over a particular
surveillance activity involving international communications with
members of al-Qaida or people suspected of being with al-Qaida. The
reason not every member of the Intelligence Committee is briefed is
because of what we would call ``sources'' in this case. Methods of
surveillance are so secret, so classified, that it has been determined
that even some members of the Intelligence Committee should not be
fully briefed on exactly how this methodology works.
So you can imagine when the FBI has sources of intelligence to
protect or certain methods of intelligence gathering to protect, the
last thing you want is for a judge to decide that those should simply
be made public.
That is why this conclusive presumption is in the law, why it is so
important, and why we cannot have this section amended to open that to
public disclosure of that sensitive information. Yet this amendment
numbered 2893 would allow every one of the 800 Federal district judges
in the country, in fact, to be their own director of national
intelligence and decide for themselves whether exposing classified
information would inappropriately reveal the sources and methods I
discussed, whether that might tip off terrorists to what we already
know about them, and whether it would harm relations with our allies
who, perhaps, have provided us with the information. Obviously, that
cannot be allowed. We cannot expect our allies in the war on terror to
cooperate with us if we treat this sensitive information that they
provide to us with anything other than the most careful consideration.
And we cannot expect our agents to be successful in detecting terrorist
plots if every step of the way, every time they gather information
through either a security letter or the more formal section 215
process, they can be sued and forced to divulge classified information
about whom and where they are looking and what methods they are using.
This amendment would do serious harm to U.S. national security. And
to what end? What powerful privacy interest or civil rights interest
dictates a third party asked to produce business records in its
possession must be allowed to disclose the existence of the
investigation or must be given access to other classified information
in order to plead that matter before the judge?
When the FBI is investigating organized crime in the United States
and grand juries compel testimony or require the production of records,
we do not let those witnesses or the parties holding the records
publicize the fact that they had been subpoenaed or publicize that
there was an ongoing investigation. We recognize that secrecy is
important in an organized crime investigation and it outweighs any
interest that third parties might have in talking about the
investigation.
Why wouldn't we recognize the same realities in a terrorism
investigation, an area where the safety and security of the American
people are much higher? That is the kind of amendment that would be
offered. Thankfully, as I said, we decided to go forward with the
process and not have any more amendments and have the vote next week
which will enable us to send this bill to the President.
My point in discussing this is to demonstrate there is no reason to
have further debate or amendments, and we could have gotten done this
afternoon and known we had reauthorized the act for another 4 years.
The only other amendment I want to discuss is amendment No. 2892,
blocking these section 215 orders even where relevance is shown. This
amendment is highly problematic because it would bar antiterrorism
investigators from obtaining some third party business records even
where they can persuade a court that those records are relevant to a
legitimate antiterrorism investigation. We all know the term
``relevance.'' It is a term that every court uses. It is the term for
these kinds of orders that are used in every other situation in the
country. Yet the author of the amendment argues that relevance is too
low a standard for allowing investigators to subpoena records.
Consider the context. The relevance standard is exactly the standard
employed for the issuance of discovery orders in civil litigation,
grand jury subpoenas in a criminal investigation, and for each and
every one of the 335 different administrative subpoenas currently
authorized by the United States Code. These national security letters
have existed since the 1970s, and they have always employed a relevance
standard.
Why now that we are faced with a terrorism threat, and we decide this
same investigative tool should be available to investigate terrorists
would we impose a higher standard to get the information? If anything,
you would be talking about applying a lower standard because of the
importance of the threat and the fact that sometimes speed is of the
essence.
As the Department of Justice Office of Legal Policy recently noted in
a published report--I want to quote this--``Congress has granted some
form of administrative subpoena authority to most Federal agencies,
with many agencies holding several such authorities.'' The Justice
Department ``identified approximately 335 existing administrative
subpoena authorities held by various executive-branch entities under
current law.''
As I said, 215 orders already are harder to get than regular
subpoenas, even though the subject matter would suggest that perhaps
they ought to be easier to get. In the case of these section 215
orders, the law requires that the FBI first seek a determination of
relevance from a judge, which makes it harder to get a 215 order than
it is to get any other grand jury subpoena or virtually any other kind
of administrative subpoena because none of them require preapproval
from a judge. Even a grand jury subpoena is not approved or reviewed by
a judge or the grand jury before it is issued. It is issued directly by
the prosecutor.
It is interesting; there was a recent online article in National
Review Online by Ramesh Ponnuru, a very good writer and student of this
issue, who made the following comments. This is a quotation. He noted
that critics say:
that investigators shouldn't be able to get business records
merely by convincing a judge that the records are
``relevant'' to an ongoing terrorism investigation. Yet that
relevance standard, from Section 215 of the law, is the exact
same standard employed for discovery orders in civil
litigation, for grand-jury subpoenas in criminal
investigation, and for each of the 335 different
administrative subpoenas currently authorized by the U.S.
Code. Getting a 215 order is harder than getting a grand-jury
subpoena or almost any kind of administrative subpoena, since
judges don't have to review the latter [before they are
issued].
Again, this is the current law. So even without an amendment, which
would make it even more difficult, the law we are talking about with
regard to terrorism investigations makes it more difficult in a
terrorism investigation to get a subpoena than in any other situation.
Yet the proponents of this amendment would make it even more difficult
than that.
Now, let's imagine what this means. Here is a scenario:
Let's imagine that intelligence agents have discovered that
suspected Al Qaida agent Mohammed Atta is in the United
States and that he has hired another individual to work for
him. Under the Patriot Act legislation being considered now,
it will be easier for the federal government to subpoena
records in order to make sure that Atta is paying that
individual the minimum wage than it will be to obtain records
to find out if Atta is using him to engage in international
terrorism.
That is not right. I was going to say something else. I will just say
that is not right. This is the existing law. This is before we would
make it even more difficult with the amendment I discussed a minute
ago.
So without making further arguments on this point, I think you can
see that we have girded this PATRIOT Act with levels of civil rights
protection and privacy rights protection that we do not have in any
other part of the code, even though the need for speed and the need for
agility to get after these terrorists is, I would argue, a much more
important matter than investigating Medicare fraud or bank fraud or
money laundering of whatever it might be.
We have not imposed all of those civil rights or privacy protections
in those sections of the code, but here we
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are going to add them and make it even more difficult for the FBI and
other law enforcement and our intelligence agencies to do the job we
want them to do. Then, of course, if something happens, we will haul
them before Congress and say: Why couldn't you get your job done? And
when they say: Well, the statute was a little tough for us to comply
with, we will say: That will be no excuse.
So we need to be very careful what we do in considering further
amendments to the law.
Mr. President, let me conclude by saying that the other amendments
that would have been offered are in the same vein, making it
unnecessarily difficult for our intelligence agents and our law
enforcement officers to do the job we have asked them to do.
When my colleagues and I have had before us on the floor of the
Senate amendments to add armor to humvees or to have better bulletproof
vests or to have other kinds of equipment or tools for them to carry
out the missions we ask them to perform when we send them into harm's
way, we do not hesitate long to give our military everything they need
because we want them to succeed in their mission. We do not want them
to be left vulnerable in any way. Why? Because we want to be protected
and we want them to be protected.
Yet when it comes to giving our intelligence agencies the tools to
fight terrorism, we shirk back and say: Well, we are going to do it,
but first we are going to add several layers of additional requirements
to make it more difficult for you to do your job.
In the law and in this fight against terrorism, we are generally not
fighting with airplanes and ships and the like. This is a different
kind of war. This is a war against a very secretive enemy all over the
globe. There is really only one way to get to this enemy, and that is
with good intelligence to find out who they are, where they are, and
what they are up to.
So the equipment we are giving to them, the tools for them to fight
terror are these provisions of the PATRIOT Act and FISA and the other
activities that have been discussed. This is what enables them to
perform their missions. We cannot load these tools up with so many
restrictions and legal loopholes that it is impossible for them to do
their job. If we expect them to be able to protect us, we have to write
these laws in clear, understandable, fair, and effective ways,
certainly protecting our civil rights. But I think I have demonstrated
we have done that.
If you do not need all these protections if you are investigating
bank fraud, then I would say, as the lawyers say: A fortiori. They are
less necessary in an investigation of terrorism, where speed may be
required, where secrecy is absolutely critical, and therefore where the
kind of protections that have been offered are very problematic to
these folks doing their job.
So the bottom line is this: We have a good act, the PATRIOT Act. It
is going to be reauthorized for another 4 years. We have already added
numerous protections of civil liberties to it. It is, therefore, quite
appropriate that the time for amendments has come to an end, that we
not have any more of these amendments brought before us--I think I have
demonstrated the harm those amendments would do--that we get on to the
job of getting this legislation reauthorized so we can say to our
constituencies we were able to provide the tools to fight terrorism
that will protect them and their families.
That is our charge. There is only so much we as legislators can do,
but this is something we can do, and we need to get about doing it.
The PRESIDING OFFICER. The Senator from Hawaii.
(The remarks of Mr. Akaka pertaining to the introduction of S. 2305
are printed in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
The PRESIDING OFFICER (Mr. Chafee). The Senator from Alabama.
Mr. SESSIONS. Mr. President, I am sorry we are now facing another
filibuster and delay of efforts to reauthorize the PATRIOT Act. We have
taken 3 days this week to deal with legislation Senator Sununu
introduced to assuage concerns he and others had about the bill.
Senator Sununu's proposed bill guaranteed that at least four more
Members of the Senate were on board to completely support a cloture
vote on and final passage of the Conference Report. It certainly
brought on board all the Republicans who expressed concern over the
bill. But we are still going through the process of grinding down
certain provisions to get an up-or-down vote on reauthorizing the
PATRIOT Act. That is all we are asking for, an up-or-down vote, to
determine whether we want to extend the provisions of the PATRIOT Act.
That is being held up. We have many other things that are important for
us to do for our country, but we have been forced to spend an
extraordinary amount of time on this.
If you look around, you will see that people are not engaging the
issue. The complaints--Senator Kyl talked about some of them--are
insubstantial. They are not the kind of serious concerns people have
portrayed them to be. The act itself provides quite a number of
provisions that simply allow investigators to use the same tactics to
investigate terrorists, people who want to kill us, that they use to
investigate wage-and-hour disputes, to investigate your taxes, to
investigate drug dealers and pharmacists and drug dispensers and
doctors. It is important that investigators continue to have these
tools at their disposal.
It is unfortunate we have had this obstruction. We have seen a
pattern of it, frankly. The more time we spend on delaying these kinds
of provisions, means that at the end of the year there will be a
jammed-up calendar. We will have appropriations bills that have to
pass, and other bills that need to pass. All the days we had at the
beginning of the year have now been frittered away on rearguing things
that we have argued and settled before.
I don't mind debate. Senator Feingold has come down and spent a
number of hours expressing his concerns. I respect him. He is a most
articulate opponent of the act. He has certainly studied the act. We
don't agree, but I respect that. But we went through all this in
December for days on the floor of the Senate, debating these same
issues. With Senator Sununu's compromise and suggestions for
improvement that have been accepted, the basis for many of those
complaints have gone away. Now we are taking another big, long time to
reargue settled issues. I believe the majority leader, Senator Frist,
is justified in his frustration that something that has been debated
completely and fully and that now has a clear majority of Senators
prepared to support it is being held up, delaying all the processes of
the Senate.
Let's talk about the merits of the bill and how the law deals with
certain issues for which we have heard objections. One of the biggest
items and perhaps the biggest issue that Senator Feingold and opponents
have raised has been the delayed search warrants. The bill that came
out of the Senate was passed by unanimous consent. We moved the PATRIOT
Act reauthorization out of the Judiciary Committee by a unanimous vote.
We moved it out of the Senate by a unanimous vote. The House passed a
bill by an overwhelming majority. The House and the Senate bills went
to conference, and they discussed it. We made concessions on each side.
Senator Specter, chairman of the Judiciary Committee, a man who
certainly has been respectful to civil liberties, has stated that he
believes about 80 percent of the compromise that was reached favored
the Senate version, not the House version. The House conceded on more
issues than the Senate. They gave more than the Senate did. The bill
that came out of conference was very close to the Senate bill. Then we
hit the Senate floor, after having a unanimous vote, and now we have a
filibuster. It is, indeed, frustrating.
Let me talk about the delayed search warrants. What the PATRIOT Act
does is to codify, to make a part of the law of the country, provisions
for delayed notice search warrants. Delayed notice search warrants are
not, as some have said in the Senate, an unusual procedure. Delayed
notice search warrants have been in use for decades, long before we
passed the PATRIOT Act. This act did not create any new authority or
close any gap because there was no gap to close. The PATRIOT Act simply
created a nationally uniform process and standard for obtaining a
delayed notice search warrant.
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Some have said: The court said 7 days is what you ought to delay
notice. That is the maximum time you should delay notice. That is not
quite accurate. The Ninth Circuit, the most liberal circuit in the
United States, the most reversed circuit in the United States by the
Supreme Court, has held in one case that delayed notice search warrants
that explicitly provided for notice within a reasonable period of time
by the judge issuing the warrant pass constitutional muster under the
fourth amendment. They said a delayed notice search warrant does pass
constitutional muster. Then they went on to ask, though, what is a
reasonable period of time? They defined it as 7 days, absent a strong
showing of necessity. That is what the Ninth Circuit said, the most
liberal circuit in America. But other courts, such as the Fourth
Circuit, have upheld much longer initial delays as constitutional. For
example, the Fourth Circuit has determined that a 45 day period for
delayed notice is constitutional. The Fourth Circuit did not even
suggest that 45 days was the upper limit. They simply concluded it was
reasonable in those circumstances. The truth is, there is no standard
set under current law by the courts that would mandate a specific
period of time for a delayed notice.
When the House of Representatives passed its version of PATRIOT Act
reauthorization, it called for 180 day delayed notification period. The
vote in the House was 257 to 171, a bipartisan vote of Republicans and
Democrats, to approve overwhelmingly a delay of 180 days. The bill we
sent to conference had a 7 day delayed notification provision in it.
When the conference reported the bill, it tilted much closer to the
Senate bill. It came out with 30 days, less than the 45 that the Fourth
Circuit had approved, more than the Ninth Circuit had said. And it was
a perfectly logical process we went through.
About the importance of delayed search warrants in terrorist
investigations, I can't express how strongly I believe that this has
the potential to be the most significant provision in our legislation,
the PATRIOT Act. Time and time again, Federal investigators, working
with State and local investigators, determine that groups are involved
in terrorist activities. They don't know all the people who are
involved. They don't know the full extent, but they have probable cause
to establish that they are violating or planning to attack the United
States or are participating in a conspiracy to kill people to further
their terrorist goals. So what do you do then?
Under the PATRIOT Act--not the National Security Act or what we have
talked about, the national security intercepts you have heard so much
about in the paper; those are international and involve the President's
inherent authority--under the traditional law of America, what do you
do if you have probable cause to believe these groups are meeting, that
there is some sort of sleeper cell in existence, you have proof, not
just suspicion, proof to the level of probable cause that they are
participating in this scheme?
One of the most potentially beneficial things would be to get a
search warrant for that house. But if you do it under normal
conditions, when you have to conduct a search warrant if the defendant
is not there, you provide him notice that you have conducted a search
warrant. When you come to the door and before you go in, if no one is
there, you have to leave a return on the door showing that you searched
the place and any items you seized and who to contact. That is what you
normally do in a search warrant.
Police officers do that every day. But first they go to a judge and
they swear under oath that they have probable cause, and not only say
they have it, they spell it out. And judges, on appeal, can review it.
If the judge who approved the search warrant was in error, they can
reverse it or the evidence can be excluded from trial. So you go to a
judge. We are not in any way changing that great principle that a U.S.
Federal judge or a State judge would have to approve a search warrant.
You are not changing in any way the principle that they have to have
probable cause under oath that evidence exists at the scene of the
place searched which would be relevant to an investigation. All of that
is the same as it has always been.
But the one critical thing--and this has been legitimated by courts
and approved by the U.S. Supreme Court--is that you can, in certain
cases, ask that the notice which you would normally give to the owner
of the residence or the person who has custody and control of that
location be delayed.
Now, this can be absolutely critical in a case of national security.
It is so important. Please, I want you to understand that. You may be
able to go in that area and find names, phone numbers, records, or bank
deposits that would identify a whole group of other people, and you are
not ready to arrest them that moment because you don't know where they
are located. You need to check this out and follow up on it. If you
arrest that bad guy and give notice to the people right there, the
whole world will know it, and they will spread the word and they will
scatter. That is exactly what will happen. So that is why, in certain
instances, law enforcement officers have sought, and courts have
approved without the PATRIOT Act, delayed notice search warrants.
So then when do you notify the person? All the PATRIOT Act says is
that the police officers can delay notification for 30 days. At the end
of that 30 days, if they don't come back to the court and show a legal
basis to continue to delay to notify the defendant, they have to notify
the defendant on the 30th day. That is all this Conference Report says.
That is reasonable. It is not an abuse of the power of the Congress. It
is not in any way contradictory to the great traditions of law
enforcement in America. It has nothing to do with the President's
Executive powers to fight a war. This is under the criminal law aspect
of American justice.
I asked for delayed notices on rare occasions when I was a Federal
prosecutor. I am telling you, whether investigating a big drug gang or
a Mafia group, these are the kinds of things which can make all the
difference in the world. And it is even more important in terrorist
investigations because these people will scatter and because it is a
matter of life and death. That is all I am saying. There is nothing
unusual or strange about it.
The Department of Justice wrote a letter which said that a delayed
notice warrant differs from an ordinary search warrant only in that the
judge authorizes the officer executing the warrant to wait for a
limited period before notifying the subject of the search because
immediate notice would have an adverse result, as defined by statute,
that could undermine the investigation. So this is all this is about. I
think few people would dispute it. Yet we have a filibuster because
some Senators apparently believe that 30 days destroys the
Constitution. They believe that it violates the Constitution to ask the
police officer to wait 30 days before they notify the defendant.
The House of Representatives, by an overwhelmingly bipartisan vote of
257 to 174, voted to allow the officers to delay 180 days. So now we
have been here 3 days debating this issue this week. This is the No. 1
complaint they have about the bill. I don't know what it is that got us
to this point.
The conference report before us today eliminates the possibility of
an open-ended delayed notice. It requires notice within 30 days unless
the court grants an extension. Current law allows for simply a
reasonable delay, which is whatever the judge may decide in a given
case. Well, they say, why do you need 30 days? Well, the Fourth Circuit
found that 45 days is good enough. I will give this example which the
Department of Justice gave: Operation Candy Box. A delayed notice was
permitted in a multijurisdictional investigation targeting a Canadian-
based ecstasy and marijuana-trafficking organization. The delay allowed
for a successful, uninterrupted, month-long investigation that resulted
in the arrest of over 130 people. Without delayed notice, agents would
have been forced to reveal the existence of the investigation
prematurely.
As a Federal prosecutor myself, I want to tell you, one of the
biggest decisions in any investigation of any organized criminal group
or terrorist group is the decision of when to conduct the takedown.
When do you arrest them? Do you run out as soon as you know there is a
group and you have
[[Page S1398]]
evidence on one of them--do you run out and grab that one? How stupid
can you be? If you grab one, the rest will know it and know you are
going to come after them; they are going to scatter or they will
destroy evidence. They will run and hide, and they may create a sleeper
cell in a different city and continue their plans to kill Americans or
to sell dope or whatever it is they are doing illegally. So you have to
plan the takedown.
When you are dealing with cases involving life and death, you have to
be very careful about it. Don't think the agents don't work with
prosecutors and staff people and plan out these takedowns to the most
minute detail. When do you do it? Do you catch six low-level flunkies
and let the big guys get away? No. Someone might say the big guy is
coming into town the next day, so we will have a team there and we will
have probable cause to arrest him. Then you get a search warrant. When
do you execute the warrant? You want to execute it at a time of your
choosing so you can wrap up as many of the members of the organization
as possible at one time. That is what it is all about.
Sometimes you need to know more about this organization. You don't
know all the people who are involved. That is where a delayed notice
warrant can allow you to obtain information about other people who are
involved and do further investigations and find out, maybe, that two or
three dangerous criminals should also be arrested at or about the same
time. They will provide you the probable cause to arrest them because
you cannot arrest people without probable cause in America. You have to
have evidence. You cannot just arrest somebody on suspicion.
So where do you get the evidence? Some people in this Senate forget
that police officers are not magicians; they have to gather evidence.
How do you get it? One way you find out the evidence is to conduct a
lawful search on a warrant approved by a Federal judge or a State
judge. If it is a Federal crime, it would be a Federal judge. Then you
may execute a delayed notice warrant, and you may find more evidence of
other people that can be corroborated and you can build up probable
cause. And instead of having probable cause to arrest just 2
defendants, you may have probable cause to arrest 8 of them, and maybe
you take down the whole sleeper cell. Maybe there are 8 in this town
and 4 more in Boston and some more in San Diego or in Washington, DC.
You can arrest all three or four cells at the same time. Would that not
be the ideal thing?
I am telling you that this is what law enforcement officers attempt
to do every day. They do it according to the laws that we require.
In 2002, the issuance of a delayed notice search warrant helped break
a massive multistate methamphetamine ring. The delayed notice allowed
investigators to locate illegal drugs, which provided further leads,
eventually resulting in the seizure of mass quantities of drugs and the
identification of those involved in the criminal organization. More
than 100 people were charged with drug-trafficking offenses, and a
number of them have been convicted.
In another case, a delayed warrant was issued to search an envelope
which was sent to the target of an investigation. An envelope had been
sent to the person, and they got a warrant to search the envelope. The
search confirmed that the target was operating an illegal money
exchange and was funneling money to the Middle East, including to an
associate of an Islamic jihad operative. Delayed notice allowed the
investigators to conduct a search without compromising an ongoing
wiretap they had been carrying on based on probable cause, and with the
approval of a U.S. District judge. But they didn't just conduct a
wiretap; they were conducting this wiretap and they needed to find out
if money or drugs were moving so they could seize that or allow the
package to continue and then arrest the person who received it.
That is what we are talking about here. That is why there is nothing
extreme in any way about the delayed notice search warrant law.
Well, what about the national security letters? You have heard a lot
about that issue. The complaint is that Senators have said this will
allow you to obtain information from people not connected to terrorists
or spies. The national security letters, which existed long before the
PATRIOT Act, can only be in a certain specific and limited number of
circumstances.
Now, I will talk about those in a moment, but they are listed in 5
statutes, so it is not an open-ended provision. It only deals with
national security issues. The procedures set forth in this act which
allow those letters to issue are in no way extreme. They in no way
threaten the great liberties all of us share but indeed are essential
tools in this age of national security threats to our country, and they
can be critical, critical, critical facts for investigators to enable
them to identify those cells which may be in this country trying to
attack and kill American citizens, as we saw on September 11.
I want to emphasize that national security letters existed long
before the PATRIOT Act and can be used in only very limited
circumstances for national security issues. In fact, it is a
particularly valuable tool that is utilized frequently by
investigators. The New York Times said there have been a lot of
national security letters issued since 9/11. Well, we are doing a lot
more investigation. Every FBI office in America is pursuing every lead
that pops up, unlike what we were doing before 9/11, and are verifying
and checking out and determining the kinds of things that are necessary
to find out, such as if someone may be connected to a terrorist
organization and may be planning an attack on the United States. Isn't
that what we demanded after 9/11? But the numbers that have been
published are clearly exaggerated. They are not accurate, and they have
been criticized by the officials who are involved. I add that
parenthetically.
The PATRIOT Act originally made very few changes to the national
security letter procedure. It merely made relevance the standard for
obtaining a national security letter and allowed special agents in
charge to issue them. The special agent in charge would be the special
agent in charge of the FBI office in New York City, for example, or in
Boston or in Birmingham, AL, and those special agents in charge
supervise everyone in the office. They are considered to be high-
ranking FBI officials responsible for the law enforcement issues
relating to their agency in that district. So this was what we
originally passed.
However, now under this conference report, the national security
letters are to be used only for investigations involving terrorism and
espionage, and they must pertain to ``an authorized investigation''
involving ``national security.''
These are national security investigations. National security letters
cannot be used to obtain unlimited categories of material. They can
only be used to obtain very limited categories of material in the
possession of third parties, not the defendant. The great protections
against the searching of your home have not been undermined. What we
are talking about here are records that are under the dominion and
control of a third party. You can say they are your bank records, but
they are the bank's records. You can say they are your telephone
company records, but they are the telephone company's records.
The law has always made a big distinction between the kind of proof
you have to have for someone to come in and search your desk, to search
your automobile, to search your home, than the kinds of procedures they
have to go through to get the record at the local motel that might have
your name on it. It is not your record, it is the motel's record. You
have a diminished expectation of privacy. The courts have consistently
held this view ever since the issue has been discussed. It is a
fundamental part of daily law enforcement in America.
So they can be used only to obtain these kinds of records, not
records you have under your control that would require a search warrant
approved by a judge on probable cause, as I discussed earlier, as you
would in a delayed search warrant case. It is a big deal. I am telling
you, in a case such as this, I bet you search warrants would be 30
pages of affidavits to justify what they are searching for. But these
are simply subpoenas, basically, for these records.
These records, as I said, belong to companies, and the individuals to
[[Page S1399]]
whom they refer have a reduced privacy interest in them. These national
security letters cannot be used to obtain ``content information'' that
involve any communications you may have made or the words of those
communications with the phone company, but simply what the billing
record said and the phone numbers you called. But you can't get,
through a national security letter, the words of your phone call or
intercept or record your phone call in any way, or your e-mails. The
content of your e-mails can't be obtained with a national security
letter. The national security letter is simply a request by a national
security investigator for records.
If the recipient such as the bank, for example, objects, the FBI
cannot compel production without going to court. The conference report
specifically allows the recipient, however, of a national security
letter to move to quash or dismiss or modify the national security
letter and to challenge the nondisclosure order that accompanies the
national security letter, and to talk to their attorneys about it if
they choose, and other people who may be necessary to comply with the
national security letter.
Some people say the nondisclosure requirement can keep you from
speaking with your attorney. This legislation specifically allows you
to talk to your attorney or anybody else who is related to it before
you decide to utilize a motion to quash.
Let me share this with you. Imagine, now, you are an investigator, an
FBI agent, and you have serious cause to believe that an individual may
be connected to a terrorist organization. You want to find out if they
have been calling Kabul, Baghdad or Islamabad. It is critically
important, at a preliminary stage in an investigation such as this--
critically important, I emphasize--that the people being investigated
not know that they are being investigated, that the investigators are
on to them. That is why we placed in the law the limitation that the
person or entity subpoenaed should not go and tell the people that the
Feds are out there asking for your bank records or your telephone
records. How can you conduct an investigation? From these records is
the way the police officers and FBI agents get the probable cause to
conduct a search warrant.
How do you get probable cause to conduct a search warrant? You take
lesser steps to obtain information that is available to you, and it
builds up until you get enough to have probable cause to go a judge to
get a search warrant to search the home and you may even want to delay
notice to the people at the home until you can be sure that everybody
in this organization is known to you and they can all be arrested
before they can get away. So that is what this is all about. It is
perfectly logical and part of our law enforcement heritage.
In the conference report that is before us, it also provides an
express right to judicial review for all types of national security
letters, allowing courts to modify or quash the order if compliance
would be unreasonable, oppressive or otherwise unlawful. It also
changed the certification requirement. It requires a higher level of
certification before you can ask for nondisclosure in the issuance of a
national security letter. The nondisclosure requirement is not
automatic. Local FBI cannot ask it. The local special agent in charge
can't ask for it. Now it has to be invoked by one of the top officials
of the DOJ in Washington, an official who must certify that disclosure
would ``endanger the national security of the United States.''
I want to say that is too high a standard. We are going to fail to
execute requests for mere documents in control of banks and telephone
companies and motels and records of that kind because a DOJ official in
Washington is going to be nervous about whether he has enough proof to
certify that this matter would endanger the security of the United
States. That is too high a standard. But it is in this bill because the
civil libertarians wanted to put it in here.
Any county district attorney in America this very day can issue a
subpoena to a bank or to a telephone company to get your phone records
or the records from your doctor. This is not unusual that investigators
can obtain documents in the possession of third parties. Please hear
me. I know Senator Kyl made the comment that it is easier for an
investigator to obtain your business records relating to whether you
have paid withholding tax than it is for an investigator, under this
case, to get records of whether you are connected to a terrorist
organization.
I would add a few other examples. A Federal drug officer, a DEA
agent, can walk into any pharmacy in America today and examine the
pharmacy records that exist to see if somebody has submitted false
documents, is overpurchasing drugs or the pharmacist is failing to keep
records. He can examine all the records that are there. He doesn't have
to have a warrant or a national security letter.
The IRS agents investigating whether you paid your taxes can subpoena
your bank records by an administrative subpoena that does not require a
grand jury approval or approval of any prosecutor. He can do it as an
part of an administrative subpoena because they are not your records.
But if he goes into your house and tries to take your personal
documents, that is not so because he has to have a search warrant. A
provision requiring this high level of certification is important
protection for sure, and the standard imposed on the top FBI official I
believe is too high. I believe one day we are going to regret it.
An express right to challenge the nondisclosure requirement is
included in the conference report. An express right to disclose the
receipt of a subpoena to a attorney is protected. There is the
requirement that the Department of Justice Inspector General must audit
certain past and future uses of national security letters and provide a
public report on the aggregate number of national security letters
issued concerning U.S. persons. But IRS agents out there in every
community in America are issuing subpoenas for your records by the
thousands every week. They don't have to maintain these records.
Senator Feingold and others, I am sure, would be pleased to note that
the House passed a 1-year misdemeanor for knowing and willful
disclosure of a national security letter with no intent to obstruct the
investigation, which the Senate dropped in conference. The House of
Representatives' bill said if you violate the requirement that you not
disclose, and run out and tell the people whose records have been
subpoenaed, you would be subject to a misdemeanor. But, oh, no, they
objected to that. So now, apparently, there is no penalty if someone
violates the act and tells the terrorists that you are investigating
them. That ought to make people happy. We ought to feel a lot better
that our liberties are being protected.
Under the conference report, recipients of a national security letter
can challenge the nondisclosure requirement after 2 years, a time
period where the national security interests involved will be
dissipated. The Sununu bill on the floor today, that was designed to
complement the conference report and to alleviate some concerns a few
Senators had, allows nondisclosure to be challenged after 1 year and
each and every year thereafter. Some opponents of the report wish to
see sunsets placed on National Security Letters. National security
letters have never been subject to sunset. They are currently governed
by six permanent statutes in the code already. No abuses of national
security letters have surfaced, and a New York Times article that
suggests these large numbers have been issued contains many
inaccuracies and that is not accurate.
I want to emphasize that. Nondisclosure is absolutely critical in
national security cases. Frankly, in reality, bankers and medical
doctors and others who may have records subpoenaed or requested by the
national security letter, for the most part, do not desire to tell the
person if the FBI agent asks them not to. But they go to their lawyers,
and we have gotten so lawyerly today, the lawyer may tell them: Well, I
think you have an obligation to tell this bad guy that the FBI came by
and picked up his records. If you don't tell him, maybe he can sue you.
So this is a protection for the bank, for the phone company, for the
doctor who gets these records subpoenaed because then he can rightly
tell anybody who complains after the fact: I would have told you, but
the Federal Government told me not to.
[[Page S1400]]
Section 215, the FISA Court business record production orders, is
another matter of importance. Section 215 orders for the production of
business records allows the FBI to go to the FISA Court and seek these
orders. You have to go to court now and seek a judicial order of the
FISA Court for ``the production of tangible things, including books,
records, papers, documents and other items'' for an investigation to
obtain foreign intelligence information. It doesn't allow the FBI to go
out and do it on their own. They have to go to court and present
evidence that would justify production--basically, a form of subpoena
authority. Section 215 orders must be preapproved by a judge and cannot
be used to investigate ordinary crimes or even domestic terrorism, only
foreign terrorism.
Orders for the production of business records under the USA PATRIOT
Act, section 215, are not and cannot be used for so-called fishing
expeditions. The fishing expedition complaint is wrong--wrong--wrong--
for three reasons. First, section 215 orders are court orders that must
be authorized by Federal judges prior to issuance. Judicial review will
cull out fishing expedition requests. Second, section 215 orders are
available only for authorized national security investigations, not
your run-of-the-mill investigation, a category that certainly does not
include fishing expeditions. And the conference report clarifies that
the orders cannot be used for threat assessments. Third, rigorous
guidelines issued by the Attorney General govern when the FBI may use a
section 215 order.
There has also been uproar over the three-part relevance test. The
Senate bill included an unworkable and burdensome three-part relevance
test. You recall--relevance plus. I opposed it. It was not good. I
steadfastly believe that it was the kind of confusion that blocks
legitimate action under this law and would undermine the ability for
the investigators to do what we intended to authorize them to do. The
test would have compromised the ability of the Government to get
section 215 orders. The language of the three-prong test was ambiguous
and would inevitably have resulted in major complications in terrorist
investigations.
As we saw by the attacks on 9/11, seemingly small or technical
barriers can make a critical difference to the success of a terrorism
investigation. That is exactly what the three-prong test would have
done.
Senator Kyl, who spoke earlier this afternoon, Senator Roberts, who
is chairman of the Intelligence Committee, and I sent a letter to
Chairman Specter, expressing our strong concerns with the three-prong
test and asking him not to include it in the conference report. He did
as we suggested. The conference report retains the three-part test only
as a way to prove relevance. The conference report lists the three
prongs of the Senate test as ways the materials sought are presumed to
be relevant.
No. 1, the records pertain to a foreign power or an agent of a
foreign power; No. 2, the records are relevant to the activities of a
suspected agent of a foreign power who is the subject of such
authorized investigation; or, No. 3, the records pertain to an
individual in contact with or known to a suspected agent of a foreign
power.
As Senator Patrick Leahy explained in 2001, the ranking Democrat on
our committee:
The FBI has made a clear case that a relevance standard is
appropriate for counterintelligence and counterterrorism
investigations as well as for criminal investigations.
Let me just say this. Your county attorney in every county in America
can issue a subpoena for your bank records, your telephone records, on
the basis of relevance to an ongoing investigation.
That is how subpoenas are issued. It has always been a relevance
standard. I don't see anything unusual about this at all. We provided
additional protection for relevance.
The conference report also requires the application for a 215 order
to include a statement of fact which shows ``reasonable grounds to
believe that the records are relevant to an authorized national
security investigation.'' The original PATRIOT Act simply required a
showing that the records ``were sought'' for an authorized
investigation. This is a Senate provision which was included in the
conference report which certainly made it more difficult to obtain
these national security letters, and I assume it made colleagues who
have been objecting happy to see this higher burden of proof placed on
the investigators. Frankly, I believe that was unnecessary.
Both the conference report and bill we are currently debating--
Senator Sununu's PATRIOT Act Amendments bill--imposed new civil rights
safeguards on the use of section 215 orders contained in the PATRIOT
Act as it currently exists. So by blocking the PATRIOT Act which
presently exists from being reauthorized by the Conference Report,
civil rights are being diminished since the report provides enhanced
protection.
The conference report clarifies and makes clear that a recipient of a
215 order has an explicit right to disclose or seek an order through an
attorney and to challenge the order in court. Senator Sununu's bill
which we are debating today and which I am certain will pass goes a bit
further. I do not know that it is critical, but I am willing to accept
things that are not perfect by my standards because I know we need to
reauthorize the PATRIOT Act, and this is a condition of reauthorizing
it. Senator Sununu's bill lays out the process by which a person
receiving a section 215 production order may challenge the legality of
that order. They can file a petition with the FISA Court, and that
petition is ``immediately'' assigned to a judge who, in 72 hours after
the assignment, ``shall conduct an initial review of the petition.''
The conference report also retains a 4-year sunset on section 215. In
other words, this provision will expire in 4 years unless reauthorized.
I don't know why that is necessary, but people apparently believed it
was, and so we put it in there.
The conferees added a requirement that the Justice Department
institute ``minimization procedures'' limiting the retention and
dissemination of information obtained through a section 215 order for
certain particularly sensitive material. The FBI request for these
orders must be approved by one of three top officials at the FBI: the
Director, the Deputy Director, or the Executive Assistant Director. One
of those three top officials in the FBI has to sign off on it if it
includes library records, medical records that would identify a person,
library patron lists, book sales records, firearms sales records, tax
return records, or educational records. This is a Senate provision that
was accepted by the conference.
The IRS agents can walk in any time and get your tax records, for
heaven's sake, but we can't get a terrorist's tax records without going
through the FISA Court. A DEA agent can go into a pharmacy and examine
every record in there to find out how many drugs you may have bought or
anybody else may have bought. The IRS can subpoena your bank records by
administrative subpoena without even the approval of a Federal
prosecutor. This is not any erosion of American liberties, is the only
point I am making.
Again, this does not allow them to go into your house, into the desk
you own at your office, and search your personal belongings. It does
not allow any Federal agent to open the trunk of your automobile, to go
in your automobile, open your glove compartment, and seize anything you
may have that is in your personal custody and control. You still have
to have a search warrant approved by a judge on probable cause. This
involves materials held by third parties.
Documents which can be obtained in this fashion are limited to the
types of tangible things which could be obtained under grand jury
subpoena or other Federal court orders, and the FBI must craft
procedures to minimize retention and dissemination of materials
gathered under this provision. OK. We will try to destroy them in so
many months to minimize the danger that somebody will have a file on
you. I am telling you, if you like those shows on television, the real-
life cold-case files, you see where the records held for 10, 15 years
turn out to be the key documents in convicting some murderer 15 years
down the road. I really do not like this idea that a properly obtained
document or record kept as part of a confidential investigative file
has to be destroyed prematurely. But that is what we have here so
people's liberties won't be undermined.
Under the conference report, the Department of Justice must conduct
two
[[Page S1401]]
audits of the FBI's use of 215 orders, enhanced congressional and
public reporting is required, and the inspector general is required to
conduct an audit of all section 215 requests since the passage of the
PATRIOT Act. The ironic thing is if those who support a filibuster
succeed in preventing a vote on the bill, these additional civil
liberties safeguards won't become law.
The language about the libraries included in Senator Sununu's bill is
also a concern of mine. Opponents of section 215 have tried to create
the impression that the FBI is using section 215 to visit libraries
nationwide to check the reading records of ordinary Americans. How
often have you heard that?
Rebecca Mitchell, director of the Alabama Public Library Service, has
a different point of view. She wrote me a letter on August 15 and said:
I want to personally thank you for your strong leadership
to stand on the PATRIOT Act. Our libraries should not be used
as a tool for terrorism. I know you have received negative
comments from the American Library Association on your stand,
but this is not the opinion of most librarians in our State.
Please continue to fight to keep our Nation free.
The point I tried to make was that there is no special protection for
a library record which would bar a Federal terrorist investigator from
obtaining those records. Your local county attorney can subpoena them
the same as any Federal investigator to try to stop a terrorist.
Neither section 215 nor any other provision of the PATRIOT Act
specifically mentions libraries or is directed at libraries.
Nevertheless, as Director Mitchell points out, it is important that
library records remain obtainable as one of the kinds of ``tangible
records'' a section 215 order can reach. Intelligence or investigators
may have good and legitimate reasons for extending to library/bookstore
records.
I would just point out that I prosecuted a number of cases. I
prosecuted one guy--they made a television show about it--and we got
his records and got a search warrant and seized items he had. He had a
book called ``Death Dealers Manual.'' He had a book called ``Deadly
Poisons.'' That was relevant evidence to help convict him of a crime.
So we are not going to allow a prosecutor access to this information.
A guy may say: I don't know anything about medicine; I have never
studied it. If the prosecutor goes down and checks with the library and
subpoenas the records and sees that he bought three books on medicine,
that may be relevant evidence to an important case. So to say that
somehow library records can't be subpoenaed as part of an investigation
goes beyond the pale, frankly. But because the Library Association had
a fit and they complained, we have put in special protections for
libraries, virtually like the spousal privilege or the priest-penitent.
I will conclude my remarks by saying that I do remain frustrated--not
at the good intentions of my colleagues. They are well intentioned. Our
colleagues really want to improve liberty in America. But the truth is,
they have gotten off base. We have let outside groups with agendas
confuse people about this legislation--confuse them as to whether
historic civil liberties are being undermined when they are not--and as
a result, we have had more difficulty passing this bill than we should
have.
I see the Senator from Texas is presiding. I appreciate his patience
in listening to me. As a former attorney general of Texas and a former
member of the Supreme Court of Texas, he is a thorough scholar in these
issues. I am proud to say that though he wouldn't agree with everything
I have said, but in general he agrees with my view that this act is
sound. He has been a steadfast advocate for it and understands the
necessity of it and that it does not undermine any of the classical
liberties we as Americans take for granted.
I yield the floor.
Mr. OBAMA. Mr. President, 4 years ago, following one of the most
devastating attacks in our Nation's history, Congress passed the USA
PATRIOT Act to give our Nation's law enforcement the tools they needed
to track down terrorists who plot and lurk within our own borders and
all over the world--terrorists who, right now, are looking to exploit
weaknesses in our laws and our security to carry out even deadlier
attacks than we saw on September 11th.
We all agreed that we needed legislation to make it harder for
suspected terrorists to go undetected in this country. Americans
everywhere wanted that.
But soon after the PATRIOT Act passed, a few years before I ever
arrived in the Senate, I began hearing concerns from people of every
background and political leaning that this law didn't just provide law
enforcement the powers it needed to keep us safe, but powers it didn't
need to invade our privacy without cause or suspicion.
Now, at times this issue has tended to degenerate into an ``either-
or'' type of debate. Either we protect our people from terror or we
protect our most cherished principles. But that is a false choice. It
asks too little of us and assumes too little about America.
Fortunately, last year, the Senate recognized that this was a false
choice. We put patriotism before partisanship and engaged in a real,
open, and substantive debate about how to fix the PATRIOT Act. And
Republicans and Democrats came together to propose sensible
improvements to the Act. Unfortunately, the House was resistant to
these changes, and that's why we're voting on the compromise before us.
Let me be clear: this compromise is not as good as the Senate version
of the bill, nor is it as good as the SAFE Act that I have cosponsored.
I suspect the vast majority of my colleagues on both sides of the aisle
feel the same way. But, it's still better than what the House
originally proposed.
This compromise does modestly improve the PATRIOT Act by
strengthening civil liberties protections without sacrificing the tools
that law enforcement needs to keep us safe. In this compromise:
We strengthened judicial review of both national security letters,
the administrative subpoenas used by the FBI, and Section 215 orders,
which can be used to obtain medical, financial and other personal
records.
We established hard-time limits on sneak-and-peak searches and limits
on roving wiretaps.
We protected most libraries from being subject to national security
letters.
We preserved an individual's right to seek counsel and hire an
attorney without fearing the FBI's wrath.
And we allowed judicial review of the gag orders that accompany
Section 215 searches.
The compromise is far from perfect. I would have liked to see
stronger judicial review of national security letters and shorter time
limits on sneak and peak searches, among other things.
Senator Feingold has proposed several sensible amendments--that I
support--to address these issues. Unfortunately, the Majority Leader is
preventing Senator Feingold from offering these amendments through
procedural tactics. That is regrettable because it flies in the face of
the bipartisan cooperation that allowed the Senate to pass unanimously
its version of the Patriot Act--a version that balanced security and
civil liberty, partisanship and patriotism.
The Majority Leader's tactics are even more troubling because we will
need to work on a bipartisan basis to address national security
challenges in the weeks and months to come. In particular, members on
both sides of the aisle will need to take a careful look at President
Bush's use of warrantless wiretaps and determine the right balance
between protecting our security and safeguarding our civil liberties.
This is a complex issue. But only by working together and avoiding
election-year politicking will we be able to give our government the
necessary tools to wage the war on terror without sacrificing the rule
of law.
So, I will be supporting the PATRIOT Act compromise. But I urge my
colleagues to continue working on ways to improve the civil liberties
protections in the PATRIOT Act after it is reauthorized.
Mrs. FEINSTEIN. Mr. President, today the Senate will take up the
conference report on the USA-PATRIOT Reauthorization and Improvement
Act, as modified by an agreement reached last week.
I am the original Democratic cosponsor of the unanimously passed
Senate bill, as well as a cosponsor of the Combating Methamphetamine
Epidemic
[[Page S1402]]
Act and the Reducing Crime and Terrorism at America's Seaports Act,
both of which are incorporated into the conference report.
I will vote in favor of cloture on this bill, and will vote in favor
of the bill when and if it comes to a vote.
At the end of last year, after careful consideration, I voted against
cloture on the conference report. I took this step because of two basic
concerns, both of which have been substantially diminished by the
agreement which is before us today. These changes, and the fact that a
consensus agreement has been reached, are the reason I am changing my
position.
My first concern was with some of the provisions of the conference
report. Specifically, the conference report did not provide adequate
judicial review of so-called gag orders associated with the issuance of
national security letters, and required those who wanted to contest
these orders before a court to disclose information about their legal
counsel to the FBI. This was unnecessary and inappropriate, and it has
been changed.
The revised conference report clarifies that a gag order will be
reviewed by a Federal court and ensures that this review will include
an inquiry into whether the Government is acting in bad faith. The
compromise also eliminates the onerous requirement of prior
notification to the FBI about legal counsel.
On the other hand, the revised conference report does not go as far
as I would have preferred. It does not adopt the original Senate
language with respect to the standard to be applied for granting a
Foreign Intelligence Surveillance Act warrant for physical items,
including business records. This issue, usually referred to by its
PATRIOT Act section number, 215, remains very controversial, and I
believe the language could permit inappropriate fishing expeditions if
not carefully monitored. However, the agreed-upon language does make
clear that libraries performing traditional functions are largely
exempt from the more intrusive aspects of the law.
Importantly, the conference report retains and extends sunset
provisions on the most controversial provisions, including section 215.
This is critical, as these sunset provisions, which expire in 2009, are
an important element of the continued vigorous oversight necessary to
ensure this law is carried out in an appropriate manner.
The second concern I had was that it appeared that efforts to forge a
compromise bill had fallen apart, with acrimony and rancor marking the
progress of negotiations. This was, in my view, tragic.
I have long been a supporter of the USA-PATRIOT Act. I believe it is
a critical tool in defending the Nation against terrorism. But I
believe that it is a tool that is most effective when it is accepted as
a bipartisan, nonpolitical, effort. Simply put, if there is one area
where partisan debate and petty politics have no place, it is in the
area of national defense against terrorism.
So I believed strongly that a compromise bill supported by Members of
both parties was essential. I recognize that achieving consensus means,
almost by definition, that nobody will be completely happy with the
outcome. As I noted, there are changes I would have made to this law,
and I am sure most of my colleagues, Democrats and Republicans, would
like other changes. But compromise and consensus require concessions
and flexibility. That is why I will vote today against cloture, and why
I plan to vote for the bill itself.
I explained my views in a letter I sent to the Attorney General in
December. In that letter I explained, and I quote:
It was clear to me that Senate and House negotiators had
come very close to reaching agreement on the Conference
Report. I believe this was critical, because only through
such a consensus approach can we ensure that the Patriot Act
does not continue to be polluted with partisan rancor. This
law is extremely important to the safety of America, and its
effectiveness depends in large part on ordinary Americans
believing it is a product not of partisan politics, but of
reasoned debate and compromise. Because I believed consensus
was so close at hand, and so important, I voted to provide
Congress additional time to resolve the last points of
disagreement.
Thus I was disheartened to hear that the Administration has
determined not to encourage further discussion on improving
and refining the Conference Report--rather, to stand fast,
and urge Senators to change their votes. I hope that this is
not the case. . . .
With that hope, I ask that you direct your staff to work
with both Republicans and Democrats to address the few
remaining issues. I am confident that good-faith discussion,
honest debate, and careful drafting can reduce, perhaps even
eliminate, some of the points of disagreement. . . .
It is critical that the Congress and the Administration
demonstrate our ability to work towards consensus and
agreement. I hope you will work with me to that end.
The USA-PATRIOT Act has come to be terribly misunderstood. Some think
it is related to Guantanamo Bay and the detention of prisoners. Others
are convinced that it authorizes torture or the secret arrest of
Americans. It does none of these things.
At the same time, some have irresponsibly sought to characterize
anyone who seeks to improve, or criticize, the law as somehow ``playing
into the hands of the terrorists.'' They have implied that the USA-
PATRIOT Act would expire in its entirety, and that we would be left
with no defenses against terrorist attacks. This, too, is untrue.
When I spoke on this floor in December, advocating working together,
I said, ``Congress has a long, and honorable, tradition of putting
aside party politics when it comes to national security . . . it is
critical that this approach be carried forward to the end, and that
Congress reauthorize the USA-PATRIOT Act in a way that Americans can be
confident is not the product of politics.''
I am pleased that we followed that tradition and that we put aside
our differences and reached agreement. The fact that the White House
and the Attorney General backed down from their intransigence and were
willing to discuss and compromise is also a welcome change, and
hopefully a sign of a more open approach to these issues in the future.
I expect this bill will pass into law. I believe it will make America
safer. It is the responsibility of the Congress to ``provide for the
Common Defense,'' and I believe we live up to that duty in this bill.
But our job will not end here. We must immediately turn to our
oversight responsibilities. For instance, I understand that Senator
Specter will be continuing his inquiry into the NSA Surveillance
Program, and tomorrow the Senate Intelligence Committee will hopefully
agree to take up their oversight responsibilities with respect to this
program. The Judiciary Committee will also soon be holding a hearing
designed to look at the FBI's progress in accepting its newly expanded
intelligence missions and assess whether these efforts have been
successful and whether they conform with the rule of law.
I look forward to expanding on the spirit of compromise that this
bill represents.
I ask unanimous consent the letter to the Attorney General dated
January 9, 2006, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, January 9, 2006.
Hon. Alberto Gonzales,
Attorney General of the United States, Department of Justice,
Washington, DC.
Dear Mr. Attorney General, Last month the Senate decided to
continue debate on the USA-Patriot Act Reauthorization and
Improvement Act conference report, and extended the sixteen
provisions of the USA-Patriot Act until February 3, 2006.
Although I am the original Democratic co-sponsor of the
unanimously passed Senate bill, I voted to continue debate. I
explained my reasons at length on the floor, but in summary
they are simple.
It was clear to me that Senate and House negotiators had
come very close to reaching agreement on the Conference
Report. I believe this was critical, because only through
such a consensus approach can we ensure that the Patriot Act
does not continue to be polluted with partisan rancor. This
law is extremely important to the safety of America, and its
effectiveness depends in large part on ordinary Americans
believing it is a product not of partisan politics, but of
reasoned debate and compromise. Because I believed consensus
was so close at hand, and so important, I voted to provide
Congress additional time to resolve the last points of
disagreement.
Thus I was disheartened to hear that the Administration has
determined not to encourage further discussion on improving
and refining the Conference Report--rather, to stand fast,
and urge Senators to change their votes. I hope that this is
not the case.
[[Page S1403]]
With that hope, I ask that you direct your staff to work
with both Republicans and Democrats to address the few
remaining issues. I am confident that good-faith discussion,
honest debate, and careful drafting can reduce, perhaps even
eliminate, some of the points of disagreement.
As I understand it, the key remaining points involve: (1)
the standard to be applied by courts in determining whether
to issue a so-called ``gag order'' in the context of National
Security Letters; (2) the time limitations applicable to
delayed-notice search warrants; and (3) the legal standard
applicable to orders to permit seizure of physical items
pursuant to the Foreign Intelligence Surveillance Act
(Section 215).
Although I am not an appointed conferee, I have asked my
staff to work with representatives from the Department of
Justice (including the Federal Bureau of Investigation) and
the Office of the Director of National Intelligence. I ask
you to facilitate that work.
It is critical that the Congress and the Administration
demonstrate our ability to work towards consensus and
agreement. I hope you will work with me to that end.
Yours truly,
Dianne Feinstein
U.S. Senator.
Mr. BYRD. Mr. President, as the Senate considers legislation to
reauthorize the PATRIOT Act, I am concerned that these efforts fall far
short in protecting the constitutional rights of American citizens.
Last December, a bipartisan group of Senators, including myself, was
rightly concerned about the PATRIOT Act conference report's failure to
safeguard civil liberties, and the Senate rightly rejected that
conference report.
Now we have a bill that purports to address those earlier concerns
but in fact fails to do so.
It is unfortunate that valiant efforts by Senators on both sides of
the aisle have not produced more meaningful changes to the PATRIOT Act.
Now we are faced with an alternative that is weak and unacceptable.
This bill does not make the essential adjustments needed to protect the
rights of the American people.
While this bill makes some changes, such as clarifying that
recipients of national security letters do not have to disclose to the
FBI whether they consult an attorney, most of the so-called
improvements are anemic. Worse still, section 215 of the PATRIOT Act,
which casts the net of surveillance so wide as to ensnare virtually any
law-abiding citizen's business or medical records, has remained
untouched and unimproved.
This bill pays lip service to judicial review of gag orders placed on
recipients of section 215 business records and the national security
letters. However, the bill goes on to set a nearly insurmountable
barrier to Americans who wish to challenge the gag order or the seizure
of their records. The bill requires that the recipient prove that the
Government acted in bad faith in obtaining the information. An
individual may not challenge a gag order for a year, infringing on that
individual's right to seek redress in their own defense.
Under the current ``improvement'', the Government may conduct ``sneak
and peek'' searches, without notifying individuals for 30 days. This is
more than a three-fold increase in the time period for notification
that the Senate bill allowed.
Safety, the American people are told, involves a trade. They are told
they must surrender their liberty in order to preserve their safety.
This Orwellian compact is an insult to the constitutional liberties
guaranteed to American citizens.
Let me be clear. No one in this Chamber discounts the responsibility
of government to keep the American people safe in their homes. Keeping
the homeland safe obviously must be of the utmost concern for the
Nation and this Congress. But such efforts cannot come at the expense
of civil liberties. Freedom and safety are not mutually exclusive.
All Americans know the threat that al-Qaida poses to our country.
Osama bin Laden and his ilk must be prevented from executing another
terrorist attack on our country. But there are many ways to fight al-
Qaida.
One of the ways is to protect those same freedoms that the Taliban
took away from the people of Afghanistan living under their tyrannical
rule. When Americans are free to speak our minds, when we are free from
the intrusions of Big Brother, when we are free to exercise--rather
than sacrifice--our most prized protections, that is a blow against
those who seek to denigrate our country and our Constitution.
If there is any question about the seriousness with which we as a
body hold our Nation's security, let us recall last July, when 100
hundred Senators stood together--something virtually unheard of in the
current divisive and partisan climate. On July 29, 2005, the Senate
came together to protect the Constitution and the basic rights it
affords our citizens. Senators from every State of the Union, from
every political persuasion, agreed to a version of the PATRIOT Act that
would reauthorize the provisions that were set to expire and which
provided the Government with the tools to aggressively pursue the war
on terror, while protecting the rights of law-abiding citizens. We
demonstrated that as a bipartisan body, we could stand strong against
the enemy while preserving the privacy of our citizens. Sadly, the
strength and zeal with which we once came together have languished, and
the hopes of meaningful improvement of the PATRIOT Act have been
abandoned.
We must continue to make national security our top priority, as it
always has been, but we can do that without sacrificing sacred
liberties. I cannot support this watered-down version of an improved
PATRIOT Act. The safeguards in this bill are regrettably thin, and we
must not claim that such shabby protections of the constitutional
rights of our people are the best that we can do.
The PRESIDING OFFICER (Mr. Cornyn). The Democratic leader.
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