[Congressional Record: October 29, 2009 (Senate)]
[Page S10926-S10934]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SESSIONS (for himself, Mr. Lieberman, and Mr. Bond):
S. 2336. A bill to safeguard intelligence collection and enact a fair
and responsible reauthorization of the 3 expiring provisions of the USA
PATRIOT Improvements and Reauthorization Act; to the Committee on the
Judiciary.
Mr. SESSIONS. Mr. President, I sent to the desk earlier legislation
that is cosponsored by myself and Senator Joe Lieberman and Senator Kit
Bond. In essence, it reauthorizes certain provisions of the PATRIOT Act
which expire, if we do not act, on December 31 of this year. It is an
important matter and I am proud to be working with the distinguished
chairman of the committee that has oversight over homeland security,
and Senator Bond, who is the ranking Republican on the Intelligence
Committee and has worked on these issues for quite a long time.
I wish to be notified after 10 minutes, if you would, please.
In recent years, Federal agents have exposed a series of potentially
devastating terrorist plots across our country. If successful, these
planned attacks would have caused unthinkable harm and claimed the
lives of countless Americans. In the years following 9/11, there have
been constant attempts to strike again on American soil. There could
have been a dozen 9/11's, perhaps, were it not for the skill and
courage of those who labor in defense of our country and our
countrymen, and were it not for the measures passed by this Congress
that have finally given them the support and the legal and financial
resources they need to combat the terrorist threat.
But unless Congress acts, these very measures will soon expire.
Unless Congress acts, our agents will be stripped of some of the legal
tools they have used to foil attack after attack on our homeland and to
avert catastrophe time and again.
Three of the most critical national security provisions passed by
this body must be renewed by December 31 of
[[Page S10929]]
this year. Those provisions are found in the USA PATRIOT Act, which has
played an essential part keeping our families and communities safe for
these last 9 years. It at last gave the intelligence community the
capabilities it needed to detect and deter terrorism inside our
borders.
These capabilities have long been used in routine law enforcement,
but could not be used in national security matters. Why would we not
pursue terrorists with the same tools we can use to pursue drug dealers
and mobsters?
Anyone who has followed the news in recent weeks knows just how vital
these tools are. Four major terrorist plots have been foiled in the
last 6 weeks--four in the last 6 weeks.
Just yesterday, we learned that two Chicago men were charged with
plotting to attack the facilities and employees of a Danish newspaper
that printed cartoons depicting the Islamic prophet Muhammad. The
planned attack included weapons and explosives. According to reports,
one of the men admitted working with a Pakistani group which has been
designated by our government as a foreign terrorist organization.
The government recently charged Najibullah Zazi with conspiring to
use one or more weapons of mass destruction--specifically, explosive
devices--against persons or property within the United States. The New
York Times described the government's case against Mr. Zazi as ``a set
of damning accusations'' that begin ``with explosives training in
Pakistan followed by purchases of bomb-making materials in Colorado,
experiments in a hotel room, and a cross-country trip to New York,
which the authorities feared might have been the target of his
attack.''
According to reports, Mr. Zazi was in contact with senior al-Qaida
operatives, including the leader of al-Qaida in Afghanistan. Attorney
General Holder has described Zazi's plot as one of the worst since 9/
11.
In another case, Hosam Maher Husein Smadi stands accused of
conspiring to set off an explosive attached to a vehicle at the base of
the 60-story Fountain Place office tower in Dallas, TX. In yet another
case, Tarek Mehanna was charged with material support of terrorism
related to a plot to kill U.S. troops in Iraq, assassinate top
politicians, and gun down shoppers in U.S. malls.
But these attacks never occurred. They never occurred because we had
the tools in place to prevent them and because of the untiring agents
who carry out their noble, often thankless mission day after day. But
out of an abundance of caution, Congress created a time limit on some
of these investigative procedures and tools, and in 2006 those
authorities were renewed because it was clear they were working and
were needed.
It is worth noting that even though these authorities had not been
abused by our hard-working terrorism officials, numerous revisions to
them were made in 2006. Then, we reauthorized the provisions, while
also strengthening civil liberties protections. That 2006 legislation
was passed with overwhelming bipartisan support. It passed with 89
votes, among them our current President, who was a Member of the
Senate; the Vice President, who was then a Member of the Senate; and
the Secretary of State, who was then a Member of the Senate.
The PATRIOT Act is again up for renewal with three critical
authorities set to expire. While we in the Judiciary Committee have
been debating whether these expiring PATRIOT Act authorities should be
approved for another 4 years, our agents are actively working hard to
protect this country and its people from the constant threat of
terrorism. Is there anyone in this Chamber who thinks that we should
make it harder for our national security investigators to catch
terrorists? Is there anyone here who believes the American people want
us to make it harder for our investigators to catch terrorists?
I know Chairman Leahy has worked hard, as we all did, to try to come
up with a PATRIOT Act reauthorization bill in the Judiciary Committee
that could attract strong bipartisan support. I commend him for that
effort. He really worked at that. We worked together at that. However,
the bill that eventually emerged from the Judiciary Committee does not
meet the key test for any national security legislation: first, do no
harm. The bill reported by the committee would make the jobs of our
national security officials more difficult. The Obama administration
has raised serious misgivings about the legislation that passed out of
the committee.
So, I think we need to make a fresh start. Let's go back and take the
bill we voted so strongly for before, add the minor things that need to
be added to it to make it better--to deal with recent court of appeals
rulings--and then let's move that forward to make sure we get that done
before the legislation expires on December 31.
The bill we introduced today represents the best parts of the
legislation that emerged from the Judiciary Committee, the parts almost
everyone agreed upon. I will go into some of these details later but
would just say that I am honored to be able to participate in the
filing of this legislation with two fine cosponsors, Senators Lieberman
and Kit Bond.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. LIEBERMAN. I am very proud to rise today to join with Senator
Sessions, my friend from Alabama, in introducing this legislation to
reauthorize provisions of the PATRIOT Act that will expire at the end
of the year if we do not act. These are critically important
provisions.
I was about to say something that may sound odd to say, which is that
the PATRIOT Act got a bad name, which it did not deserve. It is hard to
imagine that anything with the name ``patriot'' in it could have gotten
a bad name. There may have been a lot of reasons for it--
misunderstandings, maybe, frankly, suspicions of the previous
administration. But on the merits, this legislation was critically
necessary in the time after September 11. And as Senator Sessions has
made clear, because of what seems to be an escalating series of threats
to our homeland security from Islamist extremists using terrorism to
attack us, these provisions are actually probably more critically
necessary today than they have been in years past. But they have been
critically important.
I say the PATRIOT Act got a bad name because of the three provisions
that our legislation--Senators Sessions, Bond and I--will continue to
authorize, including the roving wiretap, business records provisions,
and the so-called lone wolf provision.
When Senator Sessions goes into these in some detail in a few
moments, I think anybody coming to the discussion with an open mind
will see that these are very commonsense provisions. In fact, they are
provisions that law enforcers in our country have today with regard to
traditional crimes. And we are taking them and applying them to these
kinds of investigations regarding terrorist threats against the United
States of America.
The Judiciary Committee labored with very good intentions, brought a
bill out that was a compromise and did get some bipartisan support, I
gather, which I was pleased about. But it does, as Senator Sessions
says, make some changes and it puts some pressure on the enforcement of
these critical provisions of the PATRIOT Act that will weaken them,
will undermine their effectiveness. And I think we should go for
everything we can get here which has worked so well for the past years.
The fact is, we have seen a series--I want to come to this. I want to
go back because there was mention--I said the PATRIOT Act got a bad
name. There was a particular focus and concern in the library community
and advocates for libraries--we all love libraries, and I myself have
such memories of the role the public library in my hometown of
Stamford, CT, played in my education--that somehow the government could
break into libraries through the PATRIOT Act and check on what books
people were taking out and compromise peoples' freedom of, I guess,
intellectual pursuit, freedom of interests, if you will.
There was a lot of concern, a lot of debate back and forth. Finally,
after some period of time in which the Attorney General refused to
answer questions about how often that provision of the PATRIOT Act had
been utilized, the Attorney General actually came forth--I forgot the
circumstances--and said it had never been utilized, and it was cleaned
up, and that is not in effect anymore.
[[Page S10930]]
Now a new administration--President Obama, Attorney General Holder--
changed, different parties, in some sense different perspectives, but
yet the President and the Attorney General took a sensible and I would
say unbiased look at the challenge they faced from terrorism in this
country and then looked at the provisions of the PATRIOT Act and said:
We need it. It is fair. It is constitutional. It does not deprive
people of rights. And more to the point, it will be critically useful
in stopping the extremists and the terrorists from depriving people not
only of their rights here in America but of their lives.
The PATRIOT Act provisions in question here have been a critical part
of, I would say, a remarkable, impressive improvement in the capacity
of the U.S. Government to stop terrorism, this unconventional enemy we
face which aims to attack and kill Americans and, indeed, to undermine
if not to defeat our fundamental way of life, our freedom, our values,
our diversity, our tolerance.
We have seen, since 9/11, I am proud to say facilitated or encouraged
by some legislation we passed, the Department of Homeland Security
created, the 9/11 Commission Report, reforming the intelligence
community, the Department of National Intelligence.
Probably one of the great unsung national assets we have, something
called the National Counterterrorism Center, exists outside of
Washington. It is a facility in which all of the relevant agencies of
the Federal Government are there side by side 24/7, 365 days a year
sharing information, connecting the dots. What did we all say after 9/
11 and after the Commission Report? We had a lot of information in
different places in the Federal Government; that if it had been brought
together in one place, I personally think we would have stopped 9/11,
the murder of 3,000 people on American soil. We did not have it
together. But now those places exist--NCTC, the National
Counterterrorism Center; the tremendous work by our intelligence
community, by our military community, by our law enforcement community,
working together cooperatively and cooperating with foreign
intelligence, law enforcement and military communities.
The FBI has created and beefed up a counterterrorism division that I
think has become the best in the world. And it is what makes the
arrests that have occurred, a series of events, the ones Senator
Sessions mentioned, the Zazi case--Najibullah Zazi, Afghan from birth,
came here, permanent legal resident--this is the nightmare case--
becomes radicalized, commits himself to Islamist extremism, goes over
to Pakistan and connects with the highest levels, allegedly, of al-
Qaida, receives training. One presumes--we do not know--he was directed
or encouraged to do the things he came back here to do and started to
work to put together, to acquire, according to the indictment, the
material to explode several bombs in New York City, which would have
done devastating damage.
The slightest bit of evidence--I am not compromising anything, but
you might say metaphorically, Zazi appeared on one screen, a shred of
evidence about him, and it alarmed some of our law enforcement people,
and all of the resources of our government--foreign intelligence,
American intelligence, CIA, DNI, FBI, Department of Homeland Security,
local law enforcement--came together with that little piece to build a
picture that helped us to follow him and find him and stop him before
he was able to do terrible damage in New York City. Do you know what
else helped with that? The PATRIOT Act. It has helped in so many of
these cases we stopped. There has been a ring of them this year.
Earlier, about a month ago in our Homeland Security Committee,
Senator Collins and I convened a hearing on the state of homegrown
terrorism and our efforts to stop it. We had the Secretary of Homeland
Security, the head of the National Counterterrorism Center, and the
head of the FBI. As my last question, I kind of said it wide open to
each of them: Tell me the one thing Congress could do to help you do
the extraordinary, critically important, life-and-death work you are
doing to prevent terrorist attacks against the United States. You might
say I was giving them a blank check. Frankly, I thought they would say:
We need more money for this program or that program.
When we came to Bob Mueller, the Director of the FBI, he gave a
simple answer to the question: What is the one thing Congress could do
to help you continue to do the extraordinary work you and the rest of
our American team are doing to stop terrorist attacks. Director Mueller
said: Reauthorize the PATRIOT Act. Without it, without those three
simple provisions--lone wolf, roving wiretaps, and the business record
provisions--we will not be able to do the job you want us to do.
This is so critical to our security that we should settle for nothing
less than exactly the best. The Department of Justice recently
submitted a letter urging renewal of the expiring PATRIOT Act
provisions and emphasized the importance of us not doing anything ``to
undermine the effectiveness of these important authorities.'' Despite
the clear admonition--you might say plea--from the Obama administration
and the Department of Justice, those who use these tools to keep us
safe, I am concerned that proposals to impose some new requirements and
restrictions on the FBI's ability to use these tested, existing PATRIOT
Act authorities and national security letters will diminish the ability
of the law enforcement community to protect us from these terrorist
attacks.
As an individual Senator from Connecticut, as a Senator privileged to
serve as chairman of the Homeland Security Committee, I am proud to
join with Senators Sessions and Bond in introducing this clean, total
reauthorization of the expiring PATRIOT Act provisions and urge my
colleagues to support swift passage of this simple, proven, and vitally
important legislation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, our intelligence community should never be
forced to question whether our priority is protecting America's safety
or protecting the privacy of terrorists. This bill makes clear to
intelligence professionals that keeping our Nation safe is their
highest responsibility and assures they have the tools needed to get
the job done. That is why I am so pleased to join with my colleagues,
Senators Lieberman and Sessions, in reauthorizing three FISA
provisions--lone wolf, wiretap, and section 215--which would otherwise
expire.
This legislation we have introduced today, without change,
reauthorizes these three national vital security tools for 4 more
years. While I believe each of these tools should be made permanent and
Congress plays a dangerous game with national security every time we
impose arbitrary sunsets, it is essential that the community's ability
to collect lifesaving foreign intelligence should continue unimpeded.
Our bill also makes conforming changes to the disclosure requirements
for national security letters in light of the Second Circuit's decision
last year. These issues are so critical and so urgent to our well-being
and security as a nation, nothing else will matter, even the current
health care debate, if we fail in national security.
I have spoken before on this floor about the need for President Obama
to make a decision about Afghanistan. I will not repeat those points
today. But as our military, intelligence, and law enforcement
professionals defend the United States and its allies in Washington,
there is an effort afoot to make this fight much harder than it needs
to be.
The U.S. PATRIOT Act and the Intelligence Reform and Terrorism
Prevention Act were passed overwhelmingly in the aftermath of the
September 11 terror attacks. For years, terrorism was treated as a law
enforcement matter.
Our Nation responded to terrorist attack after terrorist attack, to
the deaths of our servicemembers and embassy personnel, with
indictments and arrest warrants. As Congress failed to give our
intelligence operators the tools they needed to act quickly, our
terrorist enemies became even more emboldened and determined to strike
our homeland. September 11 was a wake-up call.
Our driving mission appropriately, after that, became prevention and
disruption of terrorist attacks at home against our troops overseas and
against
[[Page S10931]]
our allies. That is why the legislation we passed provided the
necessary tools. In 2005, the PATRIOT Act was reauthorized with minor
changes, but three FISA provisions remained subject to sunset. Here is
an opportunity for us to reauthorize these three vital provisions.
There is little disagreement among people who know that these
provisions should and must be reauthorized.
FBI Director Mueller testified before the Judiciary Committee that
each is important to the FBI's work in national security and criminal
investigation. But because of the enhanced information sharing rules
and procedures, other community entities, such as the Counterterrorism
Center, are often dependent upon information collected under these
authorities. Their loss would adversely impact their ability to analyze
and share important national intelligence information. As an example,
if the FBI obtains a court order under FISA for a roving wiretap
targeting a terrorist subject in New York, foreign intelligence
information obtained there may be shared with the CIA, enabling them in
turn to target associates overseas.
Events over the past few months underscore the importance of giving
the FBI and other agencies all the tools and authorities they need to
stay ahead. From the disrupted terror plots in New York and Colorado to
those in Illinois, Texas, and North Carolina, we have seen firsthand
why the FBI must have the flexibility to get the information they need
as quickly as possible to prevent these attacks.
The benefit of our intelligence collection authorities, however, does
not just benefit our own citizens. Just as overseas terror threats may
impact our safety, threats posed by some within our country do not
always end here. We learned two men in Chicago were conspiring with
associates to commit terrorist attacks in Denmark. This case is a good
example of how FISA authorities can save lives in allied countries.
There is a belief among some that as long as the intelligence community
eventually gets the information it needs, time is not of the essence.
That is not true. Timing was everything, whether it was introducing an
undercover agent to a target at the right moment or conducting
surveillance at the right time. No intelligence collector is going to
say that getting the same information 3 weeks later is good enough.
I cannot comment on specific tools that were used in foiling all of
these plots. We know both from public and classified testimony and
information that the tools provided that we are authorizing today have
been invaluable to our efforts to stay ahead of the terrorists. As I
mentioned earlier, the FBI's ability to obtain a roving wiretap under
FISA will end this year unless Congress acts.
According to Director Mueller, the FBI has used the authority 140
times in the past 5 years. The ability to track terrorists even when
they repeatedly use and dump their cell phones to avoid interception
is, as Director Mueller testified, ``tremendously important.'' He also
noted with all the new technology, it is nothing for a target to buy
four or five cell phones and use them in quick succession. I couldn't
agree more.
Our enemies know our laws better than some of us do. They understand
the hoops and hurdles government must clear to catch up or stay ahead.
Roving wiretap authority sends a clear message that the time-honored
trick of frequently changing a cell phone will not work like it used
to.
Obtaining a roving wiretap requires, first and foremost, that the FBI
establish probable cause that the target is an agent of a foreign
power. Some critics of this provision claim it allows the FBI to avoid
meeting this standard as surveillance moves from phone to phone. That
is not true. Each wiretap application is approved by a FISA Court
judge. If a target changes his cell phone and the FBI moves to surveil
the new phone, the court is notified. All of the protections for U.S.
person information that apply to any other FISA wiretap also apply to
roving wiretaps.
In short, while the authority is a tremendous asset for the FBI, it
poses no additional civil liberties concerns. It should be renewed.
On business records, over the past 5 years, a rallying cry against
these measures has centered on section 215, allowing the FBI to obtain
business records such as hotel information or travel records upon a
showing of the requisite burden of proof to a FISA Court judge. We have
heard time and again the FBI is using this authority to spy on people's
reading habits at the local library. This is simply highly charged
rhetoric not supported by facts. While the FBI has used section 215
more than 250 times in the past 5 years, no library records have been
obtained. But we do know that terrorists and their associates have used
library Internet access to communicate with each other and, in the
appropriate case, the FBI must have the ability to obtain any relevant
records relating to that usage.
Congress should not pass any legislation that would allow terrorists
to use libraries or any other public facility as a safe haven for their
illegal activities. If we did that, guess where all the terrorists
would congregate. Do you want them all in your libraries? I don't think
so.
The inspector general of the Department of Justice conducted several
audits of the FBI's use of section 215 and found no abuse of authority.
These audits also considered the time it takes for the FBI to obtain a
215 order. The Director has testified that business records sought by
terrorism investigations by the FBI are ``absolutely essential to
identifying other persons who may be involved in terrorist
activities.'' The records obtained under this authority are no
different from what the FBI could obtain in a criminal investigation
using grand jury subpoena authority. There is rarely any delay in
obtaining a grand jury subpoena. DOJ should strive to ensure that
section 215 court orders are obtained in a timely and expedient manner.
Given the vital information that can be obtained, I have asked the
DOJ to take steps necessary to minimize future delays. As with roving
wiretap authority, I believe section 215 has adequate measures already
built in to ensure that the private interests of U.S. persons are
protected. I have not heard any reasonable critique of this authority,
and I believe it should be authorized without changes, without delay.
The sole expiring provision that has not been used by the FBI is the
lone wolf definition of an agent of a foreign power, prompting some
critics to demand its repeal. Under this definition, the FBI can obtain
a FISA Act search or electronic surveillance against a non-U.S. person
who is not readily identifiable with a particular foreign power.
We all should be familiar with the story of Zacarias Moussaoui, the
9/11 coconspirator who was identified prior to the 9/11 attacks. But
the FBI could not connect him with a particular terrorist organization
and, therefore, did not submit a formal request for a FISA search
order. We know Moussaoui was ultimately convicted in the Eastern
District of Virginia and is now serving a life sentence for his part in
the 9/11 conspiracy.
If FISA had included a lone wolf provision, the FBI could have
searched his belongings and possibly gained advanced intelligence about
the 9/11 plot. Once again, Director Mueller has emphasized in his
recent testimony that the FBI must retain the ability to target an
individual who cannot be specifically tied to a particular foreign
power. The Director specifically cited the Moussaoui case as a prime
example. We should never again take the risk that another Moussaoui
will be identified by the FBI but escape scrutiny to prevent an attack
because he could not be tied to a specific terrorist organization.
I see the ``lone wolf'' provision as a necessary tool that will only
need to be used in limited circumstances. It is kind of like those ``in
case of emergency, break glass'' boxes that cover certain fire alarms
and equipment. We need to keep these tools available for the rare
situations where they would be needed.
As I mentioned earlier, the Senate Judiciary Committee reported a
PATRIOT Act reauthorization bill that makes a number of changes to
section 215 authorities and other national security tools. I believe
the Judiciary bill is deeply flawed, and I hope my colleagues will
listen carefully and support our bill instead. There will be ample time
down the road to lay out in
[[Page S10932]]
detail all my objections to the Judiciary bill, but let me just make a
few key points.
I disagree strongly that there should be a first time ever sunset for
national security letters. It is irresponsible to risk letting the law
revert back to pre-9/11 status, where NSLs were largely underutilized
because the burden of proof and approval levels were too high for an
investigative tool.
The so-called abuses that are so often cited were actually related to
something called exigent letters. Exigent letters are essentially a
request to third parties, usually phone companies or Internet service
providers, for immediate access to records, contingent upon a promise
to provide a grand jury subpoena or a national security letter
promptly.
It is important to understand that these exigent letters are not
national security letters or grand jury subpoenas. While there is
statutory authority for carriers to voluntarily provide the FBI with
the contents of the communication if the carrier has a good-faith
belief that an emergency involving death or serious physical injury
requires disclosure of the communication without delay, the DOJ IG
found that these exigent letter requests were issued on a routine,
rather than an exigent, basis.
Interestingly, the people relying on the now corrected exigent letter
problem to justify their proposed restrictions on NSLs are not calling
for similar restrictions to be placed on grand jury subpoenas. They
know better than to try that because there would be immediate and
overwhelming objections from the Department of Justice and nearly every
U.S. attorney in the country. We cannot go back to pre-9/11 days, when
national security investigative techniques were significantly more
difficult to use than ordinary criminal investigative techniques.
Setting aside the problems with the exigent letters, I have said,
time and time again, that the errors identified by the DOJ IG were
almost exclusively administrative. The FBI has acted quickly to correct
these errors, and we should not respond by hamstringing their
investigations.
I also disagree with requiring minimization procedures for both pen
registers/trap-and-trace devices and NSLs. The FBI has been clear about
the operational harm that will likely result if minimization procedures
are required for the type of preliminary data, such as telephone toll
records, obtained by these tools.
Aside from the basic problem of how the FBI would even go about
minimizing this type of information, I do not see why it is necessary.
We certainly would never impose these types of restrictions on grand
jury subpoenas or other types of administrative subpoenas.
Supporters claim we need minimization procedures to protect U.S.
persons, but they conveniently overlook the fact that the records we
are talking about here are in the hands of third parties and are not
entitled to the same type of protections that other information is
subject to.
The constitutional protections were discussed in Smith v. Maryland,
and the Supreme Court held we simply do not have a reasonable
expectation of privacy with respect to these sorts of third-party
records.
Ironically, because the FBI cannot tell from the type of information
obtained by these tools if someone is a U.S. person, they would
actually have to do more investigation and be more intrusive before
figuring out whether the information should be minimized.
Finally, I have significant concerns about the change the Judiciary
Committee bill makes to the notification period for sneak-and-peak
search warrants--down from 30 to 7 days. These warrants, which are
approved by a court upon a finding of probable cause, are an important
tool in drug and certain terrorism cases. We know from the FBI--and I
am sure if we asked the DEA, they would agree--that 7 days is not
enough time before giving a target notice that a search was carried
out. In a terrorism investigation, likely involving many overseas
associates and evidence, it is unreasonable to have to disclose the
investigation within a week, when other activities connected to that
may be just beginning to be collected.
Depending on the type of information recovered from a search, testing
and analysis may not even be done within 7 days. Are we going to risk
blowing these investigations because of a random conclusion that 30
days is too long? I understand the government can ask for more time
after the 7 days, but we do not have unlimited resources. We should not
make our law enforcement agencies jump through more hoops when a court
has already found that a search is proper in the first place.
I have other concerns about this bill, including the wisdom of a
separate standard for library records, which I view as an even greater
invitation for terrorists to use libraries to communicate with each
other, and new reporting and auditing requirements. I have to wonder
what additional administrative burdens these requirements will put on
the FBI at the same time they are trying to focus on preventing and
disrupting further attacks on our Nation.
Because of the significant operational concerns raised by the
Judiciary Committee's bill, I believe that it should not be considered
by the full Senate until the Intelligence Committee--as a whole--has
had the opportunity to consider its implications for our national
security, after hearing from Director Mueller about the impact of this
entire bill on FBI operations.
There are many issues about the Judiciary bill--both classified and
unclassified--that need to be addressed. The best venue in which to do
that is the Intelligence Committee. Don't forget that three of the five
crossover members from the Intelligence Committee voted against the
Judiciary Committee bill. I would hardly call that a ringing
endorsement. I believe full consideration by the Intelligence Committee
would greatly improve the measures we will be acting on, on the floor.
Unfortunately, my efforts to give the Intelligence Committee the
opportunity to weigh in on the Judiciary bill have thus far been
unsuccessful. But at the same time, we cannot risk letting these
crucial authorities lapse. For that reason, I have decided to cosponsor
the legislation we are introducing today because, under this bill, I
can categorically state it will have no provision that will have an
adverse impact on intelligence community activities or operations.
It is not insignificant, in my opinion, that the bill we are
introducing today is cosponsored by the chairman of the Homeland
Security Committee, the ranking member of the Judiciary Committee, and
by me, as vice chairman of the Intelligence Committee.
Each of these committees has a role to play in safeguarding our
domestic security. Chairman Lieberman, Ranking Member Sessions, and I
all understand the stakes in failing to reauthorize these expiring
provisions are high. The stakes in adding new and flawed provisions or
creating unreasonable burdens are just as high. It serves no legitimate
purpose to give the FBI or any other law enforcement or intelligence
agency tools that are rendered ineffective because Congress imposes
arbitrary conditions without fully appreciating their ramifications.
The sponsorship of this legislation is also noteworthy because it
sends a clear and loud message that giving our law enforcement
intelligence professionals the authorities and tools they need to keep
the country safe is not and should not be a partisan issue.
In the last Congress, we saw firsthand the negative impact of
partisanship and pandering to extreme special interests. The FISA
Amendments Act was supported by a strong bipartisan margin out of the
Senate Intelligence Committee. Unfortunately, as the bill wound its way
through the Senate and eventually the House, it became a political
football. As a result, we came too close for comfort to losing the
intelligence collection authorities we had worked hard to preserve.
I am hopeful we can avoid similar partisanship and political
interests to take over what should be a straightforward legislative
process. The surest way of doing that is to pass the bill we introduce
today.
For years, we have hammered away at the notion that there should be
walls between criminal and national security investigations. We have
embraced the idea that the same tools that are used to capture drug
dealers and child molesters should be available
[[Page S10933]]
to track terrorists and spies. While the idea has been generally
accepted, the execution has been lacking. Our laws still impose
unnecessary divisions between administrative and grand jury subpoena
authority and national security letters. Those divisions are
exacerbated by the Judiciary Committee bill, which imposes new unheard
of requirements on national security letters and the FISA pen register/
trap-and-trace information.
Over the past 8 years, Congress has placed heavy demands on the FBI
to be a full participant in the intelligence community. While the
transportation has not been without some hiccups, they have come a long
way since the days leading up to 9/11, when the word ``FISA'' was
foreign to much of the rank and file FBI.
Now is not the time to saddle them with additional administrative
burdens or to impose conditions on the use of certain tools so drastic
they become useless. There are so many current and clear-cut examples
of domestic terror threats before us. I have to wonder why anyone
thinks this would be a good time to experiment with the vital
authorities used to keep us safe.
The legislation we are introducing today will ensure our intelligence
and law enforcement professionals can continue doing what they do best,
without any additional restrictions. Our Nation has been fortunate not
to have suffered a sequel to the 9/11 attacks. Some may call it luck,
but much of the credit goes to the dedicated work of our intelligence
and law enforcement professionals and the availability of these tools
that we are reauthorizing in this bill.
We owe our thanks to the personnel who use them. We also owe them the
recognition that their jobs are as difficult as they are, and we should
not be taking any steps that will make their profound responsibility to
protect this country any more difficult. That is why I urge my
colleagues to support this measure.
I thank my cosponsor and our lead sponsor.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I thank Senator Bond for his thorough
analysis of the legislation that came out of the Judiciary Committee,
and for bringing to bear on these great issues his vast experience as
vice chair of the Intelligence Committee and his commitment to national
security and protecting this country.
He and Senator Lieberman represent the best of this body. They have
the ability to cut through ``flapdoodle'' and to get to the heart of
matters, and I appreciate so much their leadership.
Senator Lieberman, the Chairman of the Homeland Security Committee,
has been so involved in all of these matters. From the beginning, he
tried to identify, as the 9/11 Commission did, the deficiencies in our
system and tried to work toward a new way of doing business--all
consistent with our great heritages of liberty and civil rights.
I do think it is important to recognize that when Senator Lieberman
asked the Director of the FBI: Is there one thing that we can do to
help you do your job, the Director's answer was: Reauthorize the
PATRIOT Act.
The bill we are introducing today represents the best parts of the
legislation that emerged from the Judiciary Committee--the parts almost
everyone agreed upon. Our bill renews the three expiring PATRIOT Act
authorities: the rolling wiretaps authority, the business records
provision, and the ``lone wolf'' section of the Intelligence Reform and
Terrorism Prevention Act of 2004. Our bill also fixes a deficiency in
the procedure for challenging the nondisclosure requirements of a key
national security tool, the national security letter.
Section 206, the roving wiretap provision, is a commonsense tool that
is absolutely necessary in this day and age. It gives our agents the
ability to monitor a terrorist's phone call, even when he switches
phones. Director Mueller told the Judiciary Committee this authority
was extremely important, considering how easy it is for terrorists to
switch cell phones.
Without this authority, a terrorist would be able to switch phones
and defeat any order an investigator might have to wiretap a certain
telephone. As agents run back and forth to court to get repeated
permissions to monitor telephone numbers, the suspect is able to avoid
surveillance.
Let me note that, in 1986, Congress approved a roving wiretap statute
for domestic law enforcement. As Senator Bond and Senator Lieberman
said, so many of the provisions in the PATRIOT Act had already existed
in the law for regular federal criminal investigations.
But it did help to create a system where national security matters
could be handled expeditiously before the FISA Court, a Federal court
that is experienced in these types of cases. The FISA Court maintains
confidentiality without the possibility of leaks, and is readily
advised on all the relevant case law involving terrorism matters.
So that is how the system works, and I think it is not at all unusual
what we are proposing to do here in this bill.
Section 215--which my colleagues have referred to as the business
records provision--allows agents and other Federal investigators to ask
the FISA Court for permission to get certain business records.
Generally, these records would be in the possession of third parties,
not the individual himself or herself. Examples would include records
in the possession of a phone company, hotel records, bank records, or
car rental information. How important is that in a terrorism
investigation? It can be absolutely critical because, for instance,
terrorists often use cell phones and rental cars.
This is the type of information for which people have a diminished
expectation of privacy. These are not their records, they are the
rental car company's records. These are not their telephone toll
records, they are the phone company's records. Everybody at the phone
company or the car rental agency has access to these records. These
records are not secret in the same way as something in your desk, in
your home, or in your car, which would require the use of a search
warrant to be obtained by law enforcement. That is why subpoenas have
been issued for these types of records for years. The Drug Enforcement
Administration can issue administrative subpoenas right now to obtain
many of these types of records, including bank records and telephone
toll records. These can be obtained by the Drug Enforcement
Administration without any court approval at all.
So I want my colleagues to know that the allegation that the PATRIOT
Act represents an unprecedented transfer of power to the national
security investigators who are trying to protect us from terrorist
attacks is not correct. The way things work in reality is that private
banks, telephone companies, and motels would be perfectly willing to
give records to investigators, and indeed they used to do that in days
past without any subpoena because these records belong to them. But
lawyers have gotten into it, and these entities have gotten worried. So
very frequently today hotel chains and other companies expect a
subpoena before they can turn over records pertaining to their
customers. That is what section 215 is designed to deal with.
When investigating terrorism, time can be critical. Section 215
allows a court to order a company to turn over records in it
possession. This key information is usually not in the possession of
person under investigation, but in a third party's possession. Section
215 merely allows a court to order a business to do what is legally
permitted to do anyway: help our officials pursue and catch terrorists.
This is very similar--almost identical--to grand jury subpoena
authority, which has been used by Federal prosecutors, State
prosecutors, State attorneys general, county attorneys, and Federal
investigators routinely for decades. This is not some sort of collapse
of American freedoms and liberties.
The ``lone wolf'' section of the Intelligence Reform and Terrorism
Prevention Act of 2004 is a commonsense provision we need to continue
the fight against terrorists in the 21st century. Even though it has
not been used yet, it is there to defend against a very real
possibility, like the Moussaoui matter Senator Bond made reference to.
It deals with the rogue terrorist who is not linked to a larger
terrorist group, or at least where there is no proof of that link at a
given time. In the past, the law required that national security
agencies show a connection between
[[Page S10934]]
the terrorist and a terrorist group or foreign power in order to
monitor him. This could cause a problem if a terrorist or a foreign
agent left a terror group, perhaps because of a dispute. Let's say you
have a lawful, court-approved wiretap and the individual being
monitored says on it: You are not aggressive enough. You are too timid.
I want to blow up this building in Washington, DC; you don't. Count me
out. I am no longer a part of your group.
Well, since this suspect would be disconnected from a terrorist
organization, under previous law he would not subject to key national
security surveillance techniques. So, you can have a ``lone wolf''
under certain circumstances. In the Moussaoui case, investigators were
not able to get a search warrant for his computer because it was felt
that there was not sufficient proof that he was connected to a specific
terrorist organization. This was even though Moussaoui's own activities
created so much danger that an FBI lawyer went to great lengths to try
to get approval to get that search warrant, but ultimately failed to do
so. Had that search warrant been approved and that computer examined,
many think 9/11 may not have occurred.
This ``lone wolf'' provision has had bipartisan support in the past.
It was originally authored by Senator Schumer, our Democratic colleague
from New York. It is a commonsense way to deal with this very real
issue and should be reauthorized without delay.
Finally, our bill fixes the problem found by the U.S. Court of
Appeals for the Second Circuit in the case of Doe v. Mukasey. That case
addressed the legal standard courts use to review nondisclosure
requirements: for example, where a motel would be required not to tell
a terrorist staying there that it has given records to the FBI. The
Second Circuit held that the legal standard at issue was too
deferential to the government. Our bill would fix this problem in the
same manner, almost word for word, as the legislation that emerged from
the Judiciary Committee in the past few weeks. In other words, we have
given more protection to civil liberties, as the court suggested.
So as the recent slew of terrorism arrests makes so painfully clear,
the threat of violent Islamic extremism is severe and ongoing. We
cannot afford to let our guard down for a single moment. The threat is
too great and too real and the stakes too high.
Our agents risk their lives every day to investigate terrorist plots
and prevent another attack against the United States. Congress must
move with the same urgency to reauthorize these lifesaving provisions
before they expire. I believe this bipartisan bill is basically the
same bill as we approved before and provides a commonsense and
noncontroversial path to a timely reauthorization, and I hope my
colleagues will support it. We simply need to get busy and get this
work done.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2336
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``USA PATRIOT Reauthorization
Act of 2009''.
SEC. 2. USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT
SUNSET PROVISIONS.
(a) In General.--Section 102(b)(1) of the USA PATRIOT
Improvement and Reauthorization Act of 2005 (Public Law 109-
177; 50 U.S.C. 1805 note, 50 U.S.C. 1861 note, and 50 U.S.C.
1862 note) is amended by striking ``2009'' and inserting
``2013''.
(b) Conforming Amendments.--
(1) In general.--Section 601(a)(1)(D) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1871(a)(1)(D)) is amended by striking ``section 501;'' and
inserting ``section 502 or under section 501 pursuant to
section 102(b)(2) the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C.
1861 note);''.
(2) Application under section 404 of the fisa amendments
act of 2008.--Section 404(b)(4)(A) of the FISA Amendments Act
of 2008 (Public Law 110-261; 122 Stat. 2477) is amended by
striking the period at the end and inserting ``, except that
paragraph (1)(D) of such section 601(a) shall be applied as
if it read as follows:
`(D) access to records under section 502 or under section
501 pursuant to section 102(b)(2) the USA PATRIOT Improvement
and Reauthorization Act of 2005 (Public Law 109-177; 50
U.S.C. 1861 note);'.''.
(3) Effective date.--The amendments made by this subsection
shall take effect on December 31, 2013.
SEC. 3. EXTENSION OF SUNSET RELATING TO INDIVIDUAL TERRORISTS
AS AGENTS OF FOREIGN POWERS.
(a) In General.--Section 6001(b) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Public Law 108-458; 50
U.S.C. 1801 note) is amended to read as follows:
``(b) Sunset.--
``(1) Repeal.--Subparagraph (C) of section 101(b)(1) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(b)(1)), as added by subsection (a), is repealed
effective December 31, 2013.
``(2) Transition provision.--Notwithstanding paragraph (1),
subparagraph (C) of section 101(b)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1))
shall continue to apply after December 31, 2013 with respect
to any particular foreign intelligence investigation or with
respect to any particular offense or potential offense that
began or occurred before December 31, 2013.''.
(b) Conforming Amendment.--
(1) In general.--Section 601(a)(2) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(2))
is amended by striking the semicolon at the end and inserting
``pursuant to subsection (b)(2) of section 6001 of the
Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458; 50 U.S.C. 1801 note);''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on December 31, 2013.
SEC. 4. JUDICIAL REVIEW OF NATIONAL SECURITY LETTERS.
Section 3511(b) of title 18, United States Code, is amended
to read as follows:
``(b) Nondisclosure.--
``(1) In general.--
``(A) Notice.--If a recipient of a request or order for a
report, records, or other information under section 2709 of
this title, section 626 or 627 of the Fair Credit Reporting
Act (15 U.S.C. 1681u and 1681v), section 1114 of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414), or section
802 of the National Security Act of 1947 (50 U.S.C. 436),
wishes to have a court review a nondisclosure requirement
imposed in connection with the request or order, the
recipient shall notify the Government.
``(B) Application.--Not later than 30 days after the date
of receipt of a notification under subparagraph (A), the
Government shall apply for an order prohibiting the
disclosure of the existence or contents of the relevant
request or order. An application under this subparagraph may
be filed in the district court of the United States for any
district within which the authorized investigation that is
the basis for the request or order is being conducted. The
applicable nondisclosure requirement shall remain in effect
during the pendency of proceedings relating to the
requirement.
``(C) Consideration.--A district court of the United States
that receives an application under subparagraph (B) should
rule expeditiously, and shall, subject to paragraph (3),
issue a nondisclosure order that includes conditions
appropriate to the circumstances.
``(2) Application contents.--An application for a
nondisclosure order or extension thereof under this
subsection shall include a certification from the Attorney
General, Deputy Attorney General, an Assistant Attorney
General, or the Director of the Federal Bureau of
Investigation, or in the case of a request by a department,
agency, or instrumentality of the Federal Government other
than the Department of Justice, the head or deputy head of
the department, agency, or instrumentality, containing a
statement of specific facts indicating that, absent a
prohibition of disclosure under this subsection, there may
result--
``(A) a danger to the national security of the United
States;
``(B) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(C) interference with diplomatic relations; or
``(D) danger to the life or physical safety of any person.
``(3) Standard.--A district court of the United States
shall issue a nondisclosure requirement order or extension
thereof under this subsection if the court determines, giving
substantial weight to the certification under paragraph (2)
that there is reason to believe that disclosure of the
information subject to the nondisclosure requirement during
the applicable time period will result in--
``(A) a danger to the national security of the United
States;
``(B) interference with a criminal, counterterrorism, or
counterintelligence investigation;
``(C) interference with diplomatic relations; or
``(D) danger to the life or physical safety of any
person.''.
____________________
