[Congressional Record: September 17, 2009 (Senate)]
[Page S9556-S9567]


      By Mr. FEINGOLD (for himself, Mr. Durbin, Mr. Tester, Mr. Udall, 
        of New Mexico, Mr. Bingaman, Mr. Sanders, Mr. Akaka, Mr. Wyden, 
        Mr. Menendez, and Mr. Merkley):
  S. 1686. A bill to place reasonable safeguards on the use of 
surveillance and other authorities under the USA PATRIOT Act, and for 
other purposes; to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, I am pleased today to introduce the 
Judicious Use of Surveillance Tools In Counterterrorism Efforts, or 
JUSTICE, Act of 2009. I have had the privilege of working closely on 
this bill with Senator Durbin, as I have on so many of these issues 
over the years, and I welcome the support of Senators Tester, Tom 
Udall, Bingaman, Sanders, Akaka and Wyden. I am also pleased that the 
bill has the support of organizations and activists across the 
political spectrum, from former Republican Congressman Bob Barr to the 
American Civil Liberties Union to the American Library Association.
  At the end of this year, three provisions of the USA PATRIOT Act will 
sunset unless Congress acts to reauthorize them. In my view, Congress 
should take this opportunity to revisit not just those three 
provisions, but rather a broad range of surveillance laws enacted in 
recent years to assess what additional safeguards are needed.
  The JUSTICE Act does just that: It takes a comprehensive approach to 
fixing the Patriot Act and the FISA Amendments Act, once and for all. 
It permits the government to conduct necessary surveillance, but within 
a framework of accountability and oversight. It ensures both that our 
government has the tools to keep us safe, and that the privacy and 
civil liberties of innocent Americans will be protected. Because we can 
and must do both. These are not mutually exclusive goals.
  Indeed, the Department of Justice just this week acknowledged as much 
in a letter setting forth its views on Patriot Act reauthorization. The 
Department said: ``We also are aware that Members of Congress may 
propose modifications to provide additional protection for the privacy 
of law abiding Americans. As President Obama said in his speech at the 
National Archives on May 21, 2009, `We are indeed at war with al Qaeda 
and its affiliates. We do need to update our institutions to deal with 
this threat. But we must do so with an abiding confidence in the rule 
of law and due process; in checks and balances and accountability.' 
Therefore, the Administration is willing to consider such ideas, 

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that they do not undermine the effectiveness of these important 
  I welcome the administration's openness to potential reforms of the 
Patriot Act and look forward to working together as the reauthorization 
process moves forward this fall.
  But I remain concerned that critical information about the 
implementation of the Patriot Act has not been made public--information 
that I believe would have a significant impact on the debate. During 
the debate on the Protect America Act and the FISA Amendments Acts in 
2007 and 2008, critical legal and factual information remained unknown 
to the public and to most members of Congress--information that was 
certainly relevant to the debate and might even have made a difference 
in votes. And during the last Patriot Act reauthorization debate in 
2005, a great deal of implementation information remained classified. 
This time around, we must find a way to have an open and honest debate 
about the nature of these government powers, while protecting national 
security secrets.
  As a first step, the Justice Department's letter made public for the 
first time that the so-called ``lone wolf'' authority--one of the three 
expiring provisions--has never been used. That was a good start, since 
this is a key fact as we consider whether to extend that power. But 
there also is information about the use of Section 215 orders that I 
believe Congress and the American people deserve to know. I do not 
underestimate the importance of protecting our national security 
secrets. But before we decide whether and in what form to extend these 
authorities, Congress and the American people deserve to know at least 
basic information about how they have been used. So I hope that the 
administration will consider seriously making public some additional 
basic information, particularly with respect to the use of Section 215 
  There can be no question that statutory changes to our surveillance 
laws are necessary. Since the Patriot Act was first passed in 2001, we 
have learned important lessons, and perhaps the most important of all 
is that Congress cannot grant the government overly broad authorities 
and just keep its fingers crossed that they won't be misused. Congress 
has the responsibility to put appropriate limits on government 
authorities--limits that allow agents to actively pursue criminals, 
terrorists and spies, but that also protect the privacy of innocent 
  This lesson was most clear in the context of National Security 
Letters. In reports issued in 2007 and 2008, the Department of Justice 
Inspector General carefully documented rampant misuse and abuse of the 
National Security Letter, NSL, authority by the FBI. The Inspector 
General found--as he put it--``widespread and serious misuse of the 
FBI's national security letter authorities. In many instances, the 
FBI's misuse of national security letters violated NSL statutes, 
Attorney General Guidelines, or the FBI's own internal policies.'' 
After those Inspector General reports, there can no longer be any doubt 
that granting overbroad authority leads to abuses. The FBI's apparently 
lax attitude and in some cases grave misuse of these potentially very 
intrusive authorities is attributable in no small part to the USA 
PATRIOT Act. That flawed legislation greatly expanded the NSL 
authorities, essentially granting the FBI a blank check to obtain some 
very sensitive records about Americans, including people not under any 
suspicion of wrong-doing, without judicial approval. Congress gave the 
FBI very few rules to follow, and failed to adequately remedy those 
shortcomings when it considered the NSL statutes as part of the Patriot 
Act reauthorization process in 2005.
  The JUSTICE Act, like the bipartisan National Security Letter Reform 
Act that I introduced in the 110th Congress, would finally provide the 
statutory safeguards needed to protect against abuse of NSLs. And it 
would remedy First Amendment violations in the NSL statutes that were 
identified last year by the U.S. Court of Appeals for the Second 
Circuit, in a decision where Justice Sotomayor participated on the 
  Specifically, the JUSTICE Act restricts the types of records that can 
be obtained without a court order to those that are the least sensitive 
and private, and it ensures that the FBI can only use NSLs to obtain 
information about individuals with some nexus to a suspected terrorist 
or spy. It makes sure that the FBI can no longer obtain the sensitive 
records of individuals three or four times removed from a suspect, most 
of whom would be entirely innocent. It follows the road map laid out by 
the Second Circuit to make sure the gag orders that accompany NSLs do 
not violate the First Amendment.
  It prevents the use of so-called ``exigent letters,'' which the IG 
found the FBI was using in violation of the NSL statutes. It requires 
additional congressional reporting on NSLs, and it requires the FBI to 
establish a compliance program and tracking database for NSLs. And it 
requires the Attorney General to issue minimization procedures for 
information obtained through NSLs, so that information obtained about 
Americans is subject to enhanced protections and the FBI does not 
retain information obtained in error.
  The JUSTICE Act also fixes Section 215, one of the most controversial 
provisions of the Patriot Act and one of the three that is subject to 
the 2009 sunset. This provision permits the government to obtain court 
orders for Americans' business records under the Foreign Intelligence 
Surveillance Act; it is often referred to as the ``library'' provision, 
although it covers all types of business records.
  On Section 215, the legislation establishes a standard of 
individualized suspicion for obtaining a FISA business records order, 
requiring that the government be able to demonstrate the records have 
some nexus to terrorism or espionage, and it creates procedural 
protections to prevent abuses. The bill also ensures robust, meaningful 
and constitutionally sound judicial review of both National Security 
Letters and Section 215 business records orders, and the gag orders 
that accompany them.
  The bill also ensures that Americans can feel safe in their homes by 
placing reasonable checks on the so-called ``sneak and peek'' search 
warrant provision of the Patriot Act. It would eliminate the overbroad 
catch-all provision that allows these searches to be used in virtually 
any criminal case, and it would shorten the presumptive time limits for 
notification that the search occurred. It also would create a statutory 
exclusionary rule, in recognition of the strong Fourth Amendment 
interests at stake with regard to this extraordinary exception to the 
usual requirement that law enforcement knock and announce themselves 
before executing a search warrant.
  The JUSTICE Act also includes a number of reasonable safeguards to 
protect Americans' private communications. It permits the FBI to use 
roving wiretaps under FISA, but provides safeguards to protect innocent 
Americans from unnecessary surveillance. It ensures that the FBI does 
not obtain sensitive information about Americans' Internet usage 
without satisfying an appropriate standard, and subjects those 
authorities, called ``pen registers and trap and trace devices'', to 
new procedural checks. It provides new safeguards for the Patriot Act 
provision on computer trespass, which allows computer owners who are 
subject to hacking to give the government permission to monitor 
individuals on their systems without a warrant.
  The bill also addresses the FISA Amendments Act, FAA, which granted 
the government new, over-expansive surveillance authorities and 
provided immunity to any companies that cooperated with the blatantly 
illegal warrantless wiretapping program that went on for more than five 
years--and that the prior administration repeatedly misled Congress 
about. That legislation became law last year over my strong objection, 
but it is not too late for Congress to fix it.
  I offered several amendments to the FISA Amendments Act on the Senate 
floor--amendments that would have helped to make sure that the privacy 
of Americans' communications are properly protected. And now those 
amendments are part of the JUSTICE Act.
  First, the bill would ensure that the FISA Amendments Act cannot be 
used to authorize the government to collect the content of all 
communications between the U.S. and the rest of the world. Under the 
FAA, millions upon millions of communications between

[[Page S9564]]

innocent Americans and their friends, families, or business associates 
overseas could legally be collected, with absolutely no suspicion of 
any wrongdoing. The JUSTICE Act would ensure such bulk collection will 
never occur.
  Second, the JUSTICE Act would include a meaningful prohibition on the 
practice of reverse targeting--namely, wiretapping a person overseas 
when what the government is really interested in is listening to an 
American here at home with whom the foreigner is communicating. It 
would do so by requiring the government to obtain a court order 
whenever a significant purpose of the surveillance is to acquire the 
communications of an American in the U.S.
  Third, the bill would create potential consequences if the government 
initiates surveillance under the FAA using procedures that have not 
been approved by the FISA Court, and the FISA Court later finds that 
those procedures were unlawful. Say, for example, the FISA Court 
determines that the procedures were not even reasonably designed to 
wiretap foreigners outside the U.S., rather than Americans here at 
home. Under the bill, the FISA Court would have the discretion to place 
limits on how the illegally obtained information on Americans can be 
retained and used.
  Fourth, this bill includes a provision that will help protect the 
privacy of Americans whose international communications will be 
collected in vast new quantities. On the Senate floor last year, I 
joined with Senator Webb and Senator Tester to offer an amendment to 
provide real protections for the privacy of Americans, while also 
giving the government the flexibility it needs to wiretap terrorists 
overseas. And that amendment is in this bill.
  And finally with respect to the FAA, the bill would repeal the grant 
of immunity to any companies that participated in the illegal NSA 
wiretapping program. Senator Dodd was a leader on this during debate on 
the FAA and deserves a great deal of credit for drawing attention to 
this issue. Granting immunity seriously undercut our statutory scheme, 
which relies on both the government and the private sector to follow 
the law in implementing surveillance techniques. That is exactly why 
the surveillance laws have long provided liability protection for 
companies that cooperate with a government request for assistance, as 
long as they receive either a court order or a certification from the 
Attorney General that no court order is needed and the request meets 
all statutory requirements. But if requests are not properly 
documented, companies are supposed to refuse the government's request, 
and they are subject to liability if they instead decide to cooperate.
  This framework, which has been in place for 30 years, protects 
companies that comply with legitimate government requests while also 
protecting the privacy of Americans' communications from illegitimate 
snooping. Granting companies that allegedly cooperated with an illegal 
program the retroactive immunity that was in the FAA undermines the law 
that has been on the books for decades--a law that was designed to 
prevent exactly the type of abuses that occurred. Repealing that 
provision helps bolster the statutory framework that has for so long 
helped to protect the privacy of Americans' communications.
  The JUSTICE Act also provides additional congressional and judicial 
oversight of the Foreign Intelligence Surveillance Act. It ensures that 
the FBI provides some limited public reporting regarding its secret 
intelligence surveillance authority under FISA. It would give courts 
more authority to oversee the process for determining whether and how 
criminal defendants against whom FISA-derived evidence is being used 
should get access to the underlying applications and orders so they can 
mount a challenge.
  The last title of the bill simply ensures that the law labels as 
terrorists only those people who truly wish to do this country harm--
not domestic protesters who engage in civil disobedience or people who 
provide humanitarian assistance.
  These concerns are not new. ``Sneak and peek'' searches, the need for 
reasonable limits on the FBI's use of roving wiretaps, access to 
business records, and the overly expansive computer trespass authority 
were all issues I first raised in the fall of 2001 as some of the 
reasons why I believed the PATRIOT Act was flawed and threatened 
fundamental constitutional rights and protections. Eight years later, 
it is time to finally get this right. Again and again, the previous 
administration requested and the Congress provided vast new 
surveillance authorities with minimal checks and balances. Many of 
these new tools were appropriate, and passage of this bill would leave 
in place surveillance authorities that are dramatically broader than 
what existed prior to 9/11. But what has been missing--what this bill 
finally provides--is the assurances that these new authorities are 
tailored to our national security needs and subject to proper 
oversight. Every single one of the changes in this bill is reasonable, 
measured and justifiable. I urge my colleagues to support it.