Congressional Record: March 6, 2006 (Senate)
Page S1791-S1793
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER (for himself, Mr. Leahy, Ms. Murkowski, Mr.
Sununu, Mr. Feingold, Mr. Craig, Mr. Hagel, Mr. Durbin, Mr.
Salazar, Mrs. Feinstein, Mr. Obama, and Mr. Kerry):
S. 2369. A bill to require a more reasonable period for delayed-
notice search warrants, to provide enhanced judicial review of FISA
orders and national security letters, to require an enhanced factual
basis for a FISA order, and to create national security letter sunset
provisions; to the Committee on the Judiciary.
Mr. SPECTER. Mr. President, I have sought recognition to offer
legislation which would amplify the PATRIOT Act, which we expect to be
passed by the House of Representatives tomorrow, with these amendments
to restore the provisions of the PATRIOT Act to the provisions of the
Senate bill which was passed unanimously by the Judiciary Committee on
which the Presiding Officer sits, as do I, and was then adopted by
unanimous consent by the Senate.
The PATRIOT Act has had a complex procedural history where the House
passed a version which was substantially different from the Senate
version. Then we hammered out a conference report which, in my view,
was an acceptable compromise. It did not have all of the provisions
which I would have preferred. It did not have the provisions of the
Senate bill. But in a bicameral legislature, we learn to work with the
art of the possible. That was accommodation.
We worked closely with Chairman Sensenbrenner in the House and
crafted a bill which was acceptable. There were certain key concessions
made to the Senate which I believed were important, perhaps
indispensable, the leading one being the sunset provision which was
finally established at 4 years. That had been the provision in the
Senate bill. And by sunset, for anyone who may be watching on C-SPAN2,
that is the provision which terminates the bill, and then it has to
come back to Congress for reevaluation to see if we want to give the
expanded powers to law enforcement officials. The House bill had 10
years; the Senate bill had 4 years. The House wanted a compromise at 7
years, and the Senate held fast. And the compromise was reached so we
finally put a provision in at 4 years.
The PATRIOT Act was passed shortly after the terrible tragedies of 9/
11, when the United States was victimized by a terrorist attack. It was
an effort to give law enforcement officials more power to deal with
terrorism. There is always a balance to be struck between civil
liberties on the one hand and sufficient power for law enforcement on
the other. There came into a coalition representatives of both extreme
ends of the political spectrum, the so-called far left, the so-called
far right, joining together with the insistence on more civil
liberties. It seemed to me that the point was well taken.
The legislation I am introducing today, I introduce on behalf of
myself, Senators Leahy, Murkowski, Sununu, Feingold, Craig, Hagel,
Durbin, Salazar, Feinstein, Obama, and Kerry. The cosponsors are the
four Republicans who did not vote for cloture when the bill was before
the Senate. They had decided not to vote to cut off debate, which might
have given us the leverage at that time to pass the conference report,
but insisted on some modifications. With the leadership of Senator
Sununu, those modifications have been enacted in a companion bill which
is going to the House of Representatives for House action tomorrow. It
is my expectation that the legislation will be passed. There is an
enrolling ceremony set by the Speaker of the House and the majority
leader for Wednesday morning, so that is a pretty good sign that we are
en route to having the PATRIOT Act enacted.
I do not think that ought to be the ending point. That is why I am
introducing this supplemental legislation today. What this legislation
does is reinstate provisions of the original Senate-passed bill. For
example, on the delayed notice search warrants, the
[[Page S1792]]
House bill had called for 180 days. The Senate bill had called for 7
days' notice. The conference report compromised out at 30 days, which I
thought was acceptable, while not as good as I would have liked it. So
in this new bill, the delayed notice provision is set at 7 days. That
means that when a search warrant is authorized, where the subject of
the search warrant is not told--ordinarily if you have a search and
seizure, law enforcement officials come in and in broad daylight make
the search and seizure. The resident, the owner of the residence knows
about it. But a delayed notice search warrant is structured so that the
recipient does not know about it, where there is cause shown that the
investigation would be impeded if the recipient were to be told at that
time. This cuts the time to 7 days.
There had been considerable controversy over the provisions of
section 215 where the Senate bill had a three-part test, and a fourth
provision was added to the conference report where the judge had the
discretion to grant the order if there was adequate showing in the
opinion of the court to pursue a terrorist investigation. But the new
bill comes back to the three-part test of the original Senate bill so
the records sought must, first, pertain to a foreign power or an agent
of a foreign power; second, are relevant to the activities of a
suspected agent of a foreign power who is the subject of an authorized
investigation; or, three, pertain to an individual in contact with the
suspected agent of a foreign power.
The third provision provides for a judicial review of national
security letters. It would eliminate the conclusive presumption with
respect to national security letters that the court would automatically
uphold nondisclosure--that is, a gag order--upon the Government's good
faith certification that disclosure may endanger the national security
of the United States or interfere with diplomatic relations. The bill
introduced today would allow the judge to review all of the factors and
would not be controlled by this conclusive presumption.
The bill introduced today also makes a change on judicial review of
section 215, which eliminates both the conclusive presumption which was
added in on the legislation sponsored by Senator Sununu, and it
eliminates the mandatory 1-year waiting period.
The sunset on national security letters is an additional provision
which adds a 4-year sunset to national security letters, which is the
same sunset in the balance of the conference report. National security
letters had not been subjected to the PATRIOT Act but were included in
the Senate version this time. That provision is added.
We are having an oversight hearing with the Director of the FBI later
this month. It is my intention, as chairman of the Judiciary Committee,
to include in that oversight hearing these provisions. We want to see
exactly how important they are, what the FBI is doing with them. We
want law enforcement to have the tools it needs.
I know this is a subject near and dear to the heart of the Presiding
Officer who was the U.S. attorney in Alabama for law enforcement and
attorney general, and something of which this Senator has very
substantial concern based in part on my tenure as district attorney of
Philadelphia. So we want law enforcement to have the tools which are
needed. At the same time we want to achieve an appropriate balance with
civil liberties.
The statement has been made that it is not anticipated that the House
will act on such legislation this year. It is a long year. We will wait
and see. We will see what the developments are. We will see how our
fight against terrorism goes. We will see what the oversight provisions
are. But this bill will be useful as a marker to promote further
reconsideration of that original Senate bill that passed last year. It
was a significant occasion, if not monumental, to have all 18 members
of the Judiciary Committee agree on a bill which, as the Presiding
Officer knows, as do I and people who are familiar with the Judiciary
Committee, we have representatives at opposite ends of the political
spectrum. That is what is attractive about the Judiciary Committee.
Notwithstanding our divergence of views, we have had remarkable success
in the past 14 months passing the bankruptcy bill, the class action
bill, and the asbestos bill out of committee.
We stumbled a little. We are one vote short on the budget point of
order. That is going to be coming back.
We are taking a look at some of the provisions I am personally
talking to Senators about on an individual basis. There is a recognized
need for asbestos reform. There is only disagreement as to what it
ought to be. I am asking Senators to take a look at the bill and tell
me what it is they would like to see done in order to have the bill
receive the requisite support here to overcome the budget point of
order--I think we have the votes already there--but to overcome cloture
and to have a bill that can be enacted.
Then our committee led the way in the confirmation of the new Chief
Justice of the Supreme Court, Chief Justice Roberts, and Justice Alito.
We are now in the midst of working on immigration. I think the renewal
of the PATRIOT Act is a significant step forward--something the
President has been anxious to have done and something which will give
law enforcement the tools it needs with appropriate balance.
I ask unanimous consent that the text of this new bill be printed in
the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
S. 2369
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. LIMITATION ON REASONABLE PERIOD FOR DELAY.
Section 3103a(b)(3) of title 18, United States Code, is
amended by striking ``30 days'' and inserting ``7 days''.
SEC. 2. JUDICIAL REVIEW OF FISA ORDERS AND NATIONAL SECURITY
LETTERS.
(a) FISA.--Subsection (f)(2) of section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is
amended
(1) in subparagraph (A)(i)--
(A) by striking ``a production order'' and inserting ``a
production order or nondisclosure order''; and
(B) by striking ``Not less than 1 year'' and all that
follows through the end of the clause;
(2) in subparagraph (A)(ii), by striking ``production order
or nondisclosure''; and
(3) in subparagraph (C), by striking clause (ii) and
redesignating clause (iii) as clause (ii).
(b) Judicial Review of National Security Letters.--Section
3511(b) of title 18, United States Code, is amended--
(1) in paragraph (2), by striking ``If, at the time of the
petition,'' and all that follows through the end of the
paragraph; and
(2) in paragraph (3), by striking ``If the recertification
that disclosure may'' and all that follows through ``made in
bad faith.''.
SEC. 3. FACTUAL BASIS FOR REQUESTED ORDER.
Section 501(b)(2)(A) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)(A)) is amended
to read as follows:
``(A) a statement of facts showing that there are
reasonable grounds to believe that the records or other
things sought--
``(i) are relevant to an authorized investigation (other
than a threat assessment) conducted in accordance with
subsection (a)(2) to obtain foreign intelligence information
not concerning a United States person or to protect against
international terrorism or clandestine intelligence
activities; and
``(ii) either--
``(I) pertain to a foreign power or an agent of a foreign
power;
``(II) are relevant to the activities of a suspected agent
of a foreign power who is the subject of such authorized
investigation; or
``(III) pertain to an individual in contact with, or known
to, a suspected agent of a foreign power; and''.
SEC. 4. NATIONAL SECURITY LETTER SUNSET.
Section 102 of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (H.R. 3199, 109th Congress, 2d
Session) is amended by adding at the end the following:
``(c) Other Sunsets.--
``(1) In general.--Effective December 31, 2009, the
following provisions are amended so that they read as they
read on February 27, 2006:
``(A) Section 2709 of title 18, United States Code.
``(B) Sections 626 and 627 of the Fair Credit Reporting Act
(15 U.S.C. 1681u, 1681v).
``(C) Section 1114 of the Right to Financial Privacy Act
(12 U.S.C. 3414).
``(D) Section 802 of the National Security Act of 1947 (50
U.S.C. 436).
``(2) Exception.--With respect to any particular foreign
intelligence investigation that began before the date on
which the provisions referred to in paragraph (1) cease to
have effect, or with respect to any particular offense or
potential offense that began or occurred before the date on
which such provisions cease to have effect, such provisions
shall continue in effect.''.
SEC. 5. RULE OF CONSTRUCTION.
Amendments to provisions of law made by this Act are to
such provisions, as amended by the USA PATRIOT Improvement
and Reauthorization Act of 2005 (H.R. 3199, 109th Congress,
2d Session) and by the USA PATRIOT Act Additional
Reauthorizing
[[Page S1793]]
Amendments Act of 2006 (S. 2271, 109th Congress, 2d Session).
Mr. LEAHY. Mr. President, the PATRIOT Act reauthorization legislation
that the Senate may vote on this week still has serious flaws and
troubling omissions. I have spent several months working closely with
Members from both parties in an attempt to improve these defects. Even
after the Bush administration and congressional Republicans hijacked
the House-Senate conference, I tried to get this measure back on the
right track. Working with a bipartisan group of Senators, we were able
to achieve some improvements. I regret that the final package is not
better and that the intransigence of the administration has prevented a
better bill with better protections for the American people.
I remain committed to working to provide the tools that we need to
protect the American people. That includes working to provide the
oversight and checks needed on the uses of Government power and to
improve the current reauthorization of the PATRIOT Act. I am therefore
pleased to join Senator Specter, Senator Sununu, Senator Craig, Senator
Feingold, and others in introducing a bill to improve the
reauthorization legislation in several important respects.
Most importantly, the Specter-Leahy bill corrects one of the most
egregious ``police state'' provisions regarding gag orders. The Bush-
Cheney administration used the last round of discussions with
Republican Senators to make the gag order provisions worse, in my view,
by forbidding any court challenge for 1 year. There is no justification
for this mandatory waiting period for judicial review, and our bill
eliminates it. Our bill also eliminates provisions that allow the
Government to ensure itself of victory by certifying that, in its view,
disclosure ``may'' endanger national security or ``may'' interfere with
diplomatic relations. These un-American restraints on meaningful
judicial review are unfair, unjustified, and completely unacceptable.
I sought to make these changes to the gag orders provisions in an
amendment I filed to Senator Sununu's bill, S. 227l, which modified the
conference report in various respects. Senator Feingold filed other
amendments aimed at bringing the conference report more in line with
the bipartisan reauthorization bill that every Member of the Senate
approved last year. Regrettably, the majority leader chose to prevent
any effort to offer amendments to S. 227l and effectively stifled open
debate.
In addition to fixing the gag order provisions, the Specter-Leahy
bill adopts the Senate-passed standard for obtaining secret court
orders under section 215 of the PATRIOT Act. Under this standard, the
Government can obtain private, confidential records such as library and
medical records only if there is some connection between those records
and a suspected terrorist or spy. The Specter-Leahy bill also restores
the pre-PATRIOT Act rule, adopted by the Senate, that notice of ``sneak
and peek'' searches may be delayed for no more than 7 days unless
extended. The conference report sets a 30-day rule for the initial
delay, more than three times what the Senate, and pre-PATRIOT Act
courts, deemed appropriate. Finally, the Specter-Leahy bill adds a 4
year sunset to the national security letter authorities created in the
conference report. This sunset provision, like those included in the
original PATRIOT Act at the insistence of myself and House Majority
Leader Dick Armey, would facilitate oversight and ensure accountability
for the use of these administrative subpoena authorities.
Reauthorization of the PATRIOT Act has been a more difficult and far
more painful process than it should have been. Under the leadership of
Chairman Specter, the Judiciary Committee managed in just a few weeks
to produce a bipartisan bill that passed the Senate unanimously. The
House-Senate conference took a different course and produced a bill
that Members on both sides of the aisle found unacceptable. It has been
improved, but critical problems remain. The Specter-Leahy bill corrects
the worst of these problems, and I will work with the chairman to enact
these commonsense reforms before the end of the year.
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