[Congressional Record: May 23, 2011 (Senate)]
[Page S3210-S3220]
PATRIOT SUNSETS EXTENSION ACT OF 2011--Motion to Proceed
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to S. 1038,
which the clerk will report by title.
The assistant legislative clerk read as follows:
Motion to proceed to the bill (S. 1038) to extend expiring
provisions of the USA PATRIOT Improvement and Reauthorization
Act of 2005 and the Intelligence Reform and Terrorism
Prevention Act of 2004 until June 1, 2015, and for other
purposes.
Mrs. FEINSTEIN. Mr. President, as Chairman of the Senate Intelligence
Committee, I wish to point out that as of Friday, there are three
provisions of the Foreign Intelligence Surveillance Act which are going
to expire. Those three provisions are something called roving wiretaps,
the ``lone wolf'' provision, and the business records authority.
Because of prior discussions, let me point out up-front that this
does not include national security letters, just these three
provisions: ``roving wiretaps,'' the ``lone wolf,'' and the ``business
records'' authorities.
I very much appreciate that the majority leader and the Republican
leader have come together in agreement to bring this legislation to the
Senate floor. Because of its importance, particularly at this point in
time, I hope we will be able to conclude this business and see that
those provisions are extended for 4 years before Friday.
Many of us strongly believe when it comes to national security there
should be no partisan divide, only strong bipartisan support. So this
measure should receive a substantial vote this afternoon, and the
Senate will pass it quickly this week before these key authorities
expire.
But before talking about the substance of the legislation, let me
describe the context in which this debate occurs.
Three weeks ago, on May 1, the United States carried out a risky,
complicated but ultimately successful strike against Osama bin Laden,
in Abbottabad, Pakistan. The strike was the culmination of nearly a
decade-long intelligence operation to locate bin Laden.
Similar to most complex intelligence challenges, finding bin Laden
was the product of multiple intelligence sources and collection
methods. It was a seamless effort led by the CIA, with important
contributions from the National Security Agency--known as the NSA--and
the National Geospatial Intelligence Agency as well.
The intelligence mechanisms that are employed in counterterrorism
operations are carefully and regularly reviewed by the Senate's
Intelligence Committee, which I have the honor to chair. Some are also
overseen by the Judiciary Committee, on which I also have the pleasure
to serve.
These intelligence tools include the provisions of the Foreign
Intelligence Surveillance Act, or FISA, and in particular the three
provisions that will, if not reauthorized, expire on May 27. Again,
they are the ``roving wiretap,'' the ``lone wolf,'' and the ``business
records'' authorities.
The point is, we as a nation rely on certain secret sources and
methods to protect our national security. Most other nations do as
well.
It is also important to note that the strike against bin Laden, while
a critical strategic blow to al-Qaida, is also very likely to lead to
reprisal attempts.
There have been calls for attacks against the United States after the
bin Laden strike from al-Qaida in Pakistan, from al-Qaida affiliates in
Yemen and North Africa. There is a very real concern that radicalized
Americans here at home may contemplate violence in response to
extremists' calls for retribution.
So this is a time of heightened threat--maybe no specific threat, but
certainly heightened threats. We are seeing attacks in Pakistan carried
but by the Taliban in reprisals for this attack as well. Therefore,
this is a time when our vigilance must also be heightened.
Key officials from the National Counterterrorism Center, the FBI, and
the Department of Homeland Security recently described to the
Intelligence Committee in closed session how their respective agencies
have heightened their defensive posture over these very concerns.
Clearly, this is a time where every legal counterterrorism and
intelligence-gathering mechanism should be made available.
It is also a time to seize the opportunity to further disrupt al-
Qaida. The assault on the bin Laden compound netted a cache of valuable
information: papers, videos, computer drives, and other materials about
al Qaeda's vision and al-Qaida's plans.
The intelligence community established an interagency task force to
go through that material as quickly as possible. I am hopeful that
previously unknown terror plots will be identified and information
leading to the location of terrorists will be found.
Authorities such as the three provisions set to expire this Friday
may well prove critical to thwarting new plots and finding terrorists.
They must be renewed.
Let me describe the three provisions in more detail.
First, the roving wiretap provision. Roving wiretap authority was
first authorized for intelligence purposes in the PATRIOT Act in 2001.
But, as you know, it has been used for years in the criminal context.
This provision, codified in the Foreign Intelligence Surveillance Act,
provides the government with the flexibility necessary to conduct
electronic surveillance against elusive targets.
Let me explain.
In most cases under FISA, the government can go to the Foreign
Intelligence Surveillance Act Court--which I will describe in detail
later--and present an application to tap the telephone of a suspected
terrorist or spy. The FISA Court reviews the application and can issue
an order--basically a warrant--to allow the government to tap a phone
belonging to that target.
We all know in this day and age there are disposable or ``throw
away'' cell phones that allow foreign intelligence agents and
terrorists not only to switch numbers but also to throw away their cell
phone and replace it with another.
This roving wiretap authority allows the government to make a
specific
[[Page S3211]]
showing to the FISA Court that the actions of a terrorist or spy may
have the effect of thwarting intelligence. In other words, they make
one appearance, and the government can thus seek, and the FISA Court
can authorize, a roving wiretap so that the FBI, for example, can
follow the target without having to go back to the Court for each cell
phone change.
Instead, the FBI in this case would report to the FISA Court,
normally within 10 days of following the target to a new cell phone,
with information on the fact justifying the belief that the new phone
was or is being used by the target.
The Justice Department has advised Congress that the authority to
conduct roving electronic surveillance under FISA has proven to be
operationally useful in some 20 national security investigations
annually. So this provision is both used and very necessary in this day
of throw away cell phones.
``Lone wolf'' authority allows the government to request, and the
FISA Court to approve, intelligence collection against non-U.S. persons
who engage in international terrorism but for whom an association with
a specific international terrorist organization may not yet be known.
Let me explain that more clearly. All other FISA surveillance and
searches must be focused on a target who the government can prove is
tied to a foreign power. Before the government can tap a phone or
search a residence, it needs to demonstrate that the person it is after
is an employee or spy or otherwise working for, or on behalf of,
another country or terrorist group.
The ``lone wolf'' provision, which was added to FISA in 2004,
recognizes that there may be cases where the government suspects an
individual inside the United States of plotting a terrorist attack, but
it has not been able to link that individual to al-Qaida or al Shabaab
or another group.
The ``lone wolf'' authority allows the government to go to the FISA
Court, show why it believes a non-U.S. person is engaging in terrorist
activity, and get a warrant to begin surveillance. This is not done
without a warrant from the court.
It also allows for court-ordered collection against a non-U.S. target
who may have broken with a terrorist organization while continuing to
prepare for an act of international terrorism.
The Justice Department has advised Congress that although to date it
has not used this authority, the ``lone wolf'' authority nevertheless
fills an important gap in U.S. collection capabilities, and we have it
if we need it.
The recent case of Khalid Aldawsari, a Saudi national arrested in
Texas this past February, shows why the ``lone wolf'' authority is
necessary. Aldawsari was arrested after the FBI learned he had
purchased chemicals and conducted research needed to make improvised
explosive devices. He had also researched bomb targets, including dams
in California and the Dallas residence of former President George W.
Bush.
Unlike other recent terrorists such as Najibullah Zazi, David
Headley, and Umar Farouk Abdulmutallab, Aldawsari was not identified on
the basis of his connections to foreign terrorist organizations or
known at the time of his capture to be working with one.
He is better described as one of the most recent cases of individuals
already inside the United States who became radicalized and committed
to carrying out terrorist attacks.
So it is for this kind of threat that the ``lone wolf'' authority is
important and why we should extend this mechanism. It is also this kind
of threat that the Intelligence Community is now especially worried
about, as people inside the United States may be spurred to action in
retaliation for the strike against bin Laden.
If the FBI, the Department of Homeland Security, or a State or local
police officer identifies someone building bombs, it is necessary to
move quickly and not take time to research a possible connection to al-
Qaida before we use FISA authorities to learn what they are up to and
when and how they might strike.
Business records. The third authority covered by this legislation is
known as the business records provision and provides the government the
same authority in national security investigations to obtain physical
records that exist in an ordinary criminal case through a grand jury
subpoena.
Business records authority has been used since 2001 in FISA to obtain
driver's license records, hotel records, car rental records, apartment
leasing records, credit card records, among other business records.
This is the way in which you track a target.
Let me note that while the debate over this provision has often
focused on library circulation records, the Justice Department has
advised the Congress that this authority has never--let me stress,
never--been used to obtain library circulation records.
We had a big debate on this issue when this came up before. In fact,
this authority has never been used for library circulation records.
The Department has informed Congress that it submitted 96
applications to the FISA Court for business record orders last year.
The Justice Department has further stated that some business records
orders have been used to support critically important and highly
sensitive intelligence collection activities. The House and Senate
Intelligence Committees have been fully briefed on that collection.
Information about this sensitive collection has also been provided to
the House and Senate Judiciary Committees, and information has been
available for months to all Senators for their review.
The details on how the government uses all three of these authorities
are classified and discussion of them here would harm our ability to
identify and stop terrorist attacks and espionage. But, if any Senators
would like further details, I encourage them to contact the
Intelligence Committee, or to request a briefing from the Intelligence
Community or the Department of Justice.
I have mentioned several times the role of the Foreign Intelligence
Surveillance Court. Let me describe what it is and how it operates.
The FISA Court is a special court. It is a set of 11 Federal district
judges, each of whom is appointed by the Chief Justice to specifically
serve in this role.
At least one of these judges is available at all times--24 hours a
day, 7 days a week, 365 days a year--for the purpose of reviewing
government applications to use FISA authorities and, if those
applications are sufficient, approving them by issuing an order, or
what we call in the criminal law, a warrant.
The FISA Court judges meet in closed session to review classified
declarations, and they provide very careful judicial review of the
government's applications. They are expert in this specialized area of
the law, as is their expert staff. The Department of Justice officials
who come before them take all care in making their case and presenting
their facts, as they do in public court.
The American people should understand that these FISA authorities we
are discussing now--the ability to conduct electronic surveillance and
obtain records--are subject to strict oversight. A Senate-confirmed
official in the Department of Justice, the Attorney General, the Deputy
Attorney General, or the Assistant Attorney General for National
Security--one of these three must, and I stress ``must''--sign off on
every application before it goes to the Foreign Intelligence
Surveillance Court.
Federal judges, also confirmed by the Senate, must approve the
applications. Inspectors General conduct regular audits and oversight
as well. The Senate and House Intelligence and Judiciary Committees
receive regular reports from the Department of Justice on the use of
all FISA authorities, as well as receiving briefings from the FBI and
NSA on the implementation of the FISA statute.
The three authorities reauthorized by this legislation have been
debated extensively on this floor and in this Congress since it came up
for reauthorization in 2009. Every single national security official to
come before the Congress in the past 2 years has testified that these
provisions are vital to protect America and has urged their
reauthorization.
It is very hard, I think, to vote no in the face of what we have been
told in classified intelligence briefings and in hearings by officials
from the Attorney General's office and the FBI. In fact,
[[Page S3212]]
the Attorney General and the Director of National Intelligence wrote a
letter to Leaders Reid and McConnell today, May 23, expressing their
strong support for immediate enactment of the legislation we are now
considering.
I ask unanimous consent to have printed in the Record the letter to
Leaders Reid and McConnell.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Office of the Director of
National Intelligence,
Washington, DC, May 23, 2011.
Hon. John Boehner,
Speaker, U.S. House of Representatives,
Washington, DC.
Hon. Harry Reid,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Nancy Pelosi,
Democratic Leader,
U.S. House of Representatives,
Washington, DC.
Hon. Mitch McConnell,
Republican Leader, U.S. Senate,
Washington, DC.
Dear Speaker Boehner and Leaders Reid, Pelosi, and
McConnell: We write to express our strong support for the
immediate enactment of S. 1038, the Patriot Sunsets Extension
Act of 2011. The Foreign Intelligence Surveillance Act
(``FISA'') is a critical tool that has been used in numerous
highly sensitive intelligence collection operations. Three
vital provisions of FISA are scheduled to expire after May
26, 2011: section 206 of the USA PATRIOT Act, which provides
authority for roving surveillance of targets who take steps
that may thwart FISA surveillance; section 215 of the USA
PATRIOT Act, which provides expanded authority to compel
production of business records and other tangible things with
the approval of the FISA court; and section 6001 of the
Intelligence Reform and Terrorism Prevention Act, which
provides the authority under FISA to target non-United States
persons who engage in international terrorism or activities
in preparation therefor, but are not necessarily associated
with an identified terrorist group (the so-called ``lone
wolf'' definition).
In the current threat environment, it is essential that our
intelligence and law enforcement agencies have the tools they
need to protect our national security. At this critical
moment there must be no interruption in our ability to make
full use of these authorities to protect the American people,
and we urge the Congress to pass the bill and send it to the
President without delay.
The Office of Management and Budget has advised us that
there is no objection to this letter from the perspective of
the Administration's program.
Sincerely,
James R. Clapper,
Director of National Intelligence.
Eric H. Holder, Jr.,
Attorney General.
Mrs. FEINSTEIN. Mr. President, let me point out there are no recent
cases of abuse of these authorities. The oversight system in place is
working well, I believe, to ensure they will not be misused in the
future.
Other Senators may come to this floor and talk about abuses of these
authorities, but I ask: Listen carefully. Chances are they are talking
about a section not involved here, and that is the section on national
security letters. Again, national security letters are not touched by
these three sections we are renewing today. And I would say, yes, they
were abused or misused in years past, according to the Inspector
General of the Department of Justice. But corrections have been made
since then. More important, for today's debate, there is nothing we are
taking up today that affects or mentions national security letters at
all. I have referred to this now four times. I hope I get it across
because that is what happened last time. People came to the floor and
what they were talking about was not in the legislation we were
considering.
Earlier this year, I was pleased to support legislation authored by
Senator Leahy that would have made several improvements in the Foreign
Intelligence Surveillance Act in order to better protect privacy rights
and civil liberties. But the point I made during the debate in the
Judiciary Committee, which I will repeat again today, is that many of
these changes were in fact codifying practices the Department of
Justice and the FBI have already implemented.
For example, minimization. That was one of the issues that was
discussed. It has been implemented. The departments are listening and
they have taken action where there have been problems.
I wish to say to my colleagues that the Executive Branch has heard
and has acted to address concerns about intrusions into Americans'
civil liberties. The Office of the Inspector General in the Department
of Justice has indicated that it intends to conduct audits and
inspections to ensure that the implementation of FISA is in full
compliance with the law, and its reports will be carefully reviewed by
this Congress and by the concerned Committees. A major priority of the
Intelligence Committee in this house is to conduct regular oversight on
the use of FISA authorities, and we will continue to do so after
passage of this legislation.
Just about every administration official to testify on the use of
FISA authorities has also noted the importance of having the stability
that comes with a long-term extension. Since December of 2009, when we
reauthorized it, the Congress has passed three short-term extensions--
one for 2 months, one for 1 year, and one for 3 months. By lurching
from one sunset to another, we run the risk that these intelligence
authorities are going to expire. And here we are, once again, because
they expire this Friday. I hope Members will think about that. I hope
Members who want to produce an amendment will think about the
following: if they expire, what if NSA and other agencies have to stop,
what if they miss something, what if something happens? That is a
responsibility that rests on the heads of everyone in these two
bodies--both the House of Representatives and the Senate of the United
States.
Even short of that, by providing one short-term extension after
another--2 months here, 1 year there--we create significant uncertainty
in the Intelligence Community as investigators are not sure whether
these tools will continue to be available to them. I can tell you as
one who tries to read the intelligence rather assiduously, we are not
out of harm's way, and no one should believe that. People are plotting
every day as to how they can send someone into the United States or
convince someone in the United States to attack this country. The only
thing we have to prevent this from happening is intelligence and an FBI
that is now able to institute surveillance and tracking on possible
targets in this country.
We have come, in my judgment, a long way since 9/11, but we cannot
leave this country vulnerable. We must keep our guard up, and we must
see that the intelligence mechanisms that are available to this country
are able to be utilized.
This legislation now extends the use of these sunsetting authorities
for 4 years, to June 1, 2015. In view of the times we are living in, I
believe this is appropriate, it is keeping with past practice, and it
is vital to the protection of the United States of America.
The PATRIOT Act was enacted in October 2001, and several provisions
were up for review and reauthorization 4 years later in December of
2005. After some significant debate, some of the original PATRIOT Act
provisions were made permanent and some were reauthorized for another 4
years until the end of 2009.
The lone-wolf authority that expires later this week was first
enacted in the Intelligence Reform Act of 2004 and placed in the same
sunset cycle as the roving wiretap and business records authorities.
Under the model established in the PATRIOT Act and a subsequent
reauthorization, a 4-year extension from the end of May 2011 to June
2015 is based on sound congressional practice.
These issues have been debated and re-debated and should be very
familiar to Members, especially those on the Intelligence and Judiciary
Committees.
I hope we are now going to act in the best interests of protecting
the people of this country from another terrorist attack by passing
this legislation so our intelligence professionals can continue to keep
this Nation secure.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Indiana.
Israel
Mr. COATS. Mr. President, tomorrow morning, a joint meeting of
Congress will welcome the Prime Minister of Israel, Benjamin Netanyahu.
It will be the first time Mr. Netanyahu has addressed us in a joint
meeting and only the second time any Israeli Prime Minister has
addressed a joint meeting of Congress as its sole participant. It is a
distinct and historic honor and an opportunity for us to hear again how
crucial is the friendship between our two countries.
[[Page S3213]]
In anticipation of this event, I rise today to provide for the record
a restatement of how I and I believe many--if not most--of my
colleagues regard the State of Israel and America's relationship with
that fellow democracy. This restatement is necessary, I believe, in
light of the President's speech last week regarding the Arab spring.
The President's remarks, which were delivered just before President
Netanyahu's arrival in the United States, seriously muddied the waters
of American policy toward Israel and its troubled region.
The Arab spring has sprung from new popular forces throughout the
region, overthrowing regimes that have lost their relevance to the
aspirations of their people and threatening to overthrow others.
The administration's response has been slow in coming, awkward and
confused in efforts to explain its policies, inconsistent in its
application from one part of the region to another, less than
transparent in keeping Congress informed, and, worst of all,
ineffective in its guidance and understanding of events.
The protests in the Middle East and northern Africa have justifiably
stirred the emotions and aspirations of the Palestinian people as well.
They also seek a homeland of their own--secure, stable, and living at
peace with their neighbors. I agree this must be among our goals.
Some believe the groundswell of newly vibrant popular aspirations
throughout the region and also among the Palestinian people is both an
opportunity and a requirement for new, creative steps in the search for
permanent peace. There may be an opportunity here that leads to
progress if we and the parties to this long-lasting dispute make the
right choices, if we seek the right ends, and if we pursue them with
the right strategies. Unfortunately, the administration seems to
misunderstand the nature of this opportunity. In a speech last week
regarding the wave of startling events in the Middle East and north
Africa, President Obama attempted to bring coherence and purpose to his
administration's policy. Instead, the speech brought more confusion,
potentially jeopardizing prospects for successful negotiations with
Israel and the Palestinian Authority.
In my opinion, it was a serious mistake for the President to
preemptively declare U.S. support for a Palestinian state based on the
1967 borders. President Obama's declaration that Israel must withdraw
to the 1967 border lines is unprecedented and unwelcome. It is true
that previous administrations have referred to the 1967 lines in the
past as a reference point in the negotiations. It is also true that the
Palestinians regard the 1967 lines as their beginning negotiating
position. But even with the President's vague acknowledgment of the
need for land swaps, no U.S. administration has previously adopted the
Palestinian position as its official policy until now. How can this
help restart negotiations or drive those negotiations toward a
successful conclusion?
As Mr. Netanyahu made clear to the President in the Oval Office, a
return to the 1967 lines is ``indefensible'' and ignores new realities
on the ground. This position was formally recognized by President Bush
in 2004 and must now be reconfirmed by any realistic assessment of what
steps are possible and necessary. The object of negotiations is to
reach a successful and durable conclusion. But ignoring core realities
cannot possibly contribute to progress and almost certainly would make
it more difficult to achieve the ends we all seek.
Another major concern I have following the President's speech is the
reaction to the recent announcement by the Palestinians of a
reconciliation agreement between the Fatah party of President Abbas and
Hamas, the organization in charge in Gaza. This alleged reconciliation
is likely a product of the Arab spring and the conviction the
Palestinian people need to unite to pursue their common goals. This is
understandable, and it would be acceptable if not for the character of
one of the main factions to this reconciliation. Make no mistake about
it, Hamas is a terrorist organization. This group denies Israel its
right to exist, it fires thousands of rockets into Israeli territory
and bemoans the death of bin Laden, one of its heroes.
If this announced reconciliation of these Palestinian groups actually
occurs, the Palestinian Authority of President Abbas--to which the
United States, by the way, provides considerable financial and
humanitarian support--that administration, that group--that
reconciliation will have President Abbas and that group dancing with
the devil. It cannot, therefore, expect further support from us, nor
can it expect support or understanding in any negotiations with Israel
intending to create a Palestinian state. Indeed, we must not require or
even encourage Israel to resume negotiations with an entity that
includes terrorists. But how did the President address this in his
speech? He did not mention the word ``terrorist'' or provide any solid
indication that negotiations with Hamas would be impossible. He did not
affirm that American assistance to Palestinians, including Hamas, would
be off the table. He merely said that ``Palestinian leaders will have
to provide a credible answer'' to these remaining questions.
The President also suggested in his speech that the Israelis and
Palestinians should focus negotiations in a restarted peace process on
the issues of borders and security, leaving the highly contentious
issues of Jerusalem and refugees for later. This type of step-by-step
negotiating has been rejected many times in the past, and for good
reason. Land is Israel's main asset in negotiations. Even if it were
possible to reach agreement on land and borders first, Israel would be
left in a far weaker position to negotiate the subsequent matters. The
refugee issue is perhaps the most difficult of all because acceptance
of the Palestinian position would completely change the nature of
Israel as a Jewish state. Indeed, it is a fundamental survival issue
that cannot be addressed in isolation.
Finally, I am deeply concerned that the President's speech may be
used by the Palestinians to support their campaign to bring a
unilateral declaration of statehood from the United Nations General
Assembly. A declaration of statehood to the U.N. is a dangerous step
that would preempt any new negotiations and make sure sufficient
efforts are stillborn. If this strategy succeeds at the U.N. General
Assembly this September, it will bring serious legal, political,
diplomatic, and practical negative consequences for both a real peace
process and Israel itself. Let me restate that. If this strategy
succeeds at the U.N. General Assembly in September, it will bring
serious legal, political, diplomatic, and practical negative
consequences for both a real peace process and for Israel itself.
The Palestinian Authority has already announced its intentions to
challenge Israeli interests in U.N.-related bodies, including the
International Court. This tactic contradicts Palestinian claims that it
seeks to bring new energy to the peace process. Peace will come through
realistic negotiations, not through unilateral preemptive action.
The President did say he opposes this Palestinian effort to isolate
and delegitimize Israel at the U.N., and this was a welcome statement.
But supporting a Palestinian state based on 1967 borders, speaking out
against alleged reconciliation with the terrorist faction Hamas in only
the most ambiguous terms, and promoting a policy that deprives Israel
of its strongest negotiating advantage will only encourage the
Palestinian Authority to pursue its U.N. strategy.
These confusing, inconsistent messages from the administration will
not be enough to dissuade other U.N. member states from supporting the
Palestinian maneuver. I fear the United States will then be forced to
veto a resolution in the Security Council that our very own errors have
helped bring about. Then we will find ourselves in a minority in the
General Assembly and watch as the prospect of substantive negotiations
become far more distant than before. Both we and our Israeli friends
deserve better than this.
Mr. President, this is not a statement of support for Israel only. It
is true that we are united with Israel by permanent bonds of history,
values, shared strategic interests, culture, and religious heritage,
but those bonds are also the principal reason we have for pursuing a
peace that is durable and just for everyone in the region. That
[[Page S3214]]
peace will serve the Palestinian people just as much as Jewish Israel.
A secure homeland of their own, at peace, will be the result of real
negotiations based on shared understanding of what is possible.
Americans, the people of Israel, and the Palestinian people all have a
shared common heritage in prophetic religions. Hopefully, prayerfully,
together we can aspire to a common purpose to bring enduring peace to
the birthplace of that heritage.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Coons). The Senator from Montana.
Mr. TESTER. Mr. President, today we have an opportunity to do away
with a law that tramples on our constitutional rights, a law that
invades the privacy of law-abiding Montanans and Americans, a law that
deprives Americans of some of our most basic constitutional
protections. This week, we are voting on whether to extend the USA
PATRIOT Act 4 more years as is. There is a chance we may not have an
opportunity to change it even though we know our freedoms have been
compromised. That is a shame because without that possibility, we are
not having the debate the American people deserve. If our only choice
is to vote yes or no, I am going to vote no.
Long before I ever got to the Senate, the PATRIOT Act was sold to us
as a toolbox of sorts to give U.S. agents the tools they need to find
and fight and kill terrorists. But what we got from the PATRIOT Act was
a law that is killing the rights guaranteed by our Constitution. It
gives our government full authority to dig through our private records
or tap our phones or make a case against us without even having a
judge's warrant even if we are doing nothing wrong.
When we give up our rights, we give way to exactly what the
terrorists wanted for us--fewer freedoms and invasion of privacy. It is
not acceptable in Montana, and I am sure it is not acceptable anywhere
else. More than 200 years ago, one of our Founders in this country
warned us with this statement:
Those who give up essential liberty to purchase a little
temporary safety . . . deserve neither liberty nor safety.
Words of wisdom from Benjamin Franklin.
Our Nation was founded on the principles of freedom and privacy and a
government we control, and we got exactly the opposite with the PATRIOT
Act.
Mr. President, here is a copy of the Constitution. It is a reminder
of our rights as Americans, guaranteed by the fourth amendment:
The right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated.
The folks who wrote the PATRIOT Act were here in Washington long
before I ever thought about running for the Senate, but you don't have
to be a lawyer to know the PATRIOT Act flies in the face of the fourth
amendment. It allows the government to conduct secret proceedings even
when those proceedings don't need to be held in secret. If we allow
that to happen, we toss government transparency and accountability out
the window.
As we have seen over the past few weeks, our military forces and
intelligence agents are the most effective in the world. They are the
best because they have the most powerful tools in the world to do their
jobs. They are better trained than anyone else, they are stronger and
smarter, and they do what they do without needing to snoop around into
the private lives of law-abiding Americans and Montanans, without
having to dig up our medical records or our gun records or our library
records or our Internet records.
The PATRIOT Act is bad policy that has put us on a very slippery
slope. Our constitutional freedoms are too valuable to give even an
inch of them away, especially when we don't need to.
Without the opportunity to make real changes to this bill, our only
option is to say yes or no to extend this law 4 more years. If we do,
an entire decade will have passed without the opportunity to make any
adjustments. Not having the opportunity to amend the PATRIOT Act, I am
going to vote against it in the name of freedom and privacy, and I urge
all my colleagues to do the same because it is the responsible way to
vote.
Mr. President, I yield the floor, I suggest the absence of a quorum,
and I ask unanimous consent that the time during the quorum be equally
divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. GRASSLEY. 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. GRASSLEY. Mr. President, we find ourselves again in the situation
of extending key provisions of the PATRIOT Act. These three provisions
are roving wiretaps, section 215 business record orders, and the lone
wolf provisions. These are all very important tools used to investigate
and prevent terrorist attacks. They have been reauthorized a number of
times, but it seems that in recent years we have been discussing only
very short term extensions of these critical tools.
That is why I will support the cloture motion on moving to S. 1038
today. This legislation provides a 4-year extension of the three
expiring provisions without any substantive changes to the existing
authorities, and I believe there do not need to be changes to existing
authorities.
Regardless of my support for today's cloture vote, and support for
the 4-year extension, I wish my colleagues to know that I support a
permanent extension of the three expiring provisions. Having this
debate year after year offers little certainty to agents utilizing
these provisions to combat terrorism. It also leads to operational
uncertainty, jeopardizes collection of critical intelligence, and could
lead to compliance and reporting problems if the reauthorization occurs
too close to the expiration of the law, and we are getting very close
to that.
If we believe these tools are necessary--and I clearly stated I
believe they are necessary--we need to provide some certainty as
opposed to simply revisiting the law year after year. Given the
indefinite threat we face from acts of terrorism, it is my view that we
should permanently reauthorize these three expiring provisions.
This position is supported by agents on the ground using these tools
every day. I have letters of support from the Federal Bureau of
Investigation Agents Association supporting a permanent reauthorization
of the three expiring provisions. The Federal Law Enforcement Officers
Association also supports a permanent extension of the provisions. In
fact, a very important passage of that letter states:
Crimes and terrorism will not sunset and are still
targeting our nation and American citizens. Just like
handcuffs, the PATRIOT Act should be a permanent part of the
law enforcement arsenal.
Then we have another letter from the Society of Former Special Agents
of the FBI, and that letter says:
We urge Congress to reauthorize the expiring provisions of
the PATRIOT Act permanently and without restrictions as the
three expiring provisions are essential to the security of
our country.
I ask unanimous consent that these letters be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Federal Bureau of Investigation
Agents Association,
Arlington, VA, April 4, 2011.
Hon. Harry Reid,
Majority Leader, U.S. Senate, Washington, DC.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate, Washington, DC.
Hon. Charles E. Grassley,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Senators: On behalf of the FBI Agents Association
(``FBIAA''), I write to submit our views on the importance of
permanently reauthorizing three provisions of the USA PATRIOT
Act (``PATRIOT Act'') that are set to expire on May 28, 2011.
The FBIAA is comprised of over 12,000 active duty and retired
Agents nationwide and is the only professional association
dedicated to advancing goals of FBI Agents. On their behalf,
we urge the Senate to act now to permanently reauthorize
these critical criminal investigation and counterterrorism
tools without new restrictions.
We also respectfully request that the Senate limit its
debate and consideration to the
[[Page S3215]]
expiring PATRIOT Act provisions. Introducing new issues at
this time could unnecessarily impede progress toward
reauthorizing these important national security provisions,
potentially leading to their expiration. Given that there
appears to be bipartisan and bicameral consensus for
reauthorization of the provisions in their current form for
some time, expiration is easily avoidable.
The Three Expiring PATRIOT Act Provisions Should Be Permanently
Reauthorized Without New Restrictions
Since 9-11, federal law enforcement officers have
effectively and properly used three tools provided for in the
PATRIOT Act and related laws: the ``business records''
provision: the ``roving wiretap'' provision: and the ``lone
wolf'' surveillance provision. These provisions were
developed and adopted in response to the 9-11 terrorist
attacks. Placing new restrictions and requirements on them
now, after ten years of using and relying on these tools, is
antithetical to our primary post-9-11 national security
goal--giving federal law enforcement officers greater tools
and more authority to detect and thwart terrorist attacks.
Business Records
The ``business records'' provision, Sec. 215 of the PATRIOT
Act, allows criminal investigators to apply to the U.S.
Foreign Intelligence Surveillance Act Court (``FISA Court'')
for an order requiring the production of business records
related to foreign intelligence operations or an
investigation of international terrorism. However, no such
order can be issued if it concerns an investigation of a U.S.
person based solely on that person's exercise of his or her
First Amendment rights.
This provision is used in specific and rare circumstances.
As described by the Congressional Research Service, the
business records tool has bee used ``sparingly and never to
acquire library, bookstores, medical or gun sale records.''
Despite infrequent use, the ability to access important bank
and telephone records early in investigations is critical for
criminal investigators, and leaders in the Department of
Justice and FBI have called the business records provision a
``vital tool in the war on terror.''
Given that the provision has been used carefully and
effectively in investigations of terrorist threats, the FBIAA
recommends that Congress reauthorize the provision on a
permanent basis without new limitations on its use.
Roving Wiretaps
The ``roving wiretap'' provision, Sec. 206 of the PATRIOT
Act, allows the FISA Court to issue wiretap orders that are
not linked to specific phones or computers if the target of
the surveillance has demonstrated an intent to evade
surveillance.
The ability to obtain orders for roving wiretaps is
absolutely essential to contemporary criminal and
counterterrorism investigations because criminal networks
have become technologically advanced and will often purchase
and use many different mobile phones and computers in order
to evade wiretap efforts. Law enforcement experts have
described the roving wiretap provision as a ``very critical
measure'' that has likely helped detect and prevent numerous
terrorist plots, including the plots to bomb multiple
synagogues in New York City.
The FBIAA urges Congress to permanently reauthorize the
roving wiretap authority and not subjected it to further
restrictions. The roving wiretap provision is already
constrained by the requirements that the FISA Court find
probable cause that the target intends to evade surveillance
to issue a wiretap and that minimization procedures are
followed regarding the collection, retention, and
dissemination of information about U.S. persons. A failure to
reauthorize the roving wiretap provision, or encumbering the
provision with unnecessary restrictions, would jeopardize the
utility of an important investigative tool and could, as
Director Mueller has warned, open up a ``gap in the law that
. . . sophisticated terrorists or spies could easily
exploit.''
Lone Wolf Surveillance
The ``lone wolf'' provision, found in Section 6001 of the
Intelligence Reform and Terrorism Prevention Act of 2004,
allows the FISA Court to issue surveillance orders targeted
at non-U.S. persons who engage in international terrorism or
activities in preparation of terrorism. Prior to enactment of
the lone wolf provision, the FISA Court could only issue
surveillance orders if specific evidence linked the targeted
person to a foreign power or entity. This meant that non-U.S.
individuals acting alone could not be effectively
investigated, even if evidence indicated that they were
preparing to engage in international terrorism.
The FBIAA recommends that Congress permanently reauthorize
the lone wolf provision because it is a necessary part of
combating contemporary terrorist threats. Communication
between individual terrorists and foreign governments and/or
entities is often very scarce, precisely because these groups
are seeking to evade detection by law enforcement. The lone
wolf provision gives law enforcement an important tool to
obtain the information necessary to ensure that threats are
thwarted before terrorists can act on their plans. Congress
should not allow this provision to expire, or place
additional restrictions on the provision, as such actions
could make it more difficult to investigate and prevent
dangerous terrorist threats. Recent developments in the
evolution of the threat of ``homegrown terrorism'' have only
served to underscore the necessity of maintaining this
provision under current law.
Efforts To Add New Requirements to the Expiring Provisions and National
Security Letters (NSLs) Should Be Rejected
The FBIAA is concerned that the much-needed reauthorization
of the expiring PATRIOT Act provisions may fall prey to a
larger debate over NSLs and new limitations on the ways that
these investigative tools can be used. We are aware that
concerns about NSLs and PATRIOT Act provisions have been used
by some to fuel skepticism about privacy protection. To be
clear, Agents undergo extensive training regarding the use of
these tools, and we are confident that Special Agents use
them to help protect the public from terrorist and criminal
threats.
Regardless of one's position on new restrictions, it is
clear that including them in the reauthorization debate could
make it almost impossible for Congress to act before May 28,
2011. Allowing these provisions to expire should not be an
option. Terrorists will not wait patiently for Congress to
re-adopt provisions like these before advancing their efforts
to harm our country. Investigators should not have their
hands tied when Congress could easily meet the
reauthorization deadline in a bipartisan and bicameral
fashion.
Moreover, Congress should not rush to codify limitations
and new procedural requirements without carefully considering
the implications of specific legislative language on national
security matters and ongoing investigations. Simply including
these changes in the reauthorization effort is inconsistent
with a robust consideration process.
The FBIAA appreciates your leadership on these issues and
consideration of these comments. We urge Congress to
reauthorize the expiring provisions of the PATRIOT Act
permanently and without new restrictions. FBI Agents work
diligently to detect, investigate, and apprehend individuals
and groups that are engaged in a constant and evolving effort
to craft and execute plots against the United States and its
citizens. The three expiring provisions are essential in our
fight against terrorism.
Sincerely,
Konrad Motyka,
President.
____
Federal Law Enforcement
Officers Association,
March 2, 2011.
Hon. Patrick Leahy,
Chairman, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Hon. Charles Grassley,
Ranking Member, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Chairman Leahy and Ranking Member Grassley: As you
know, the Federal Law Enforcement Officers Association
(FLEOA) is the largest non-partisan, non-profit law
enforcement association and represents 26,000 federal law
enforcement officers from 65 federal agencies. In light of
tomorrow's scheduled Executive Business Meeting, we are
writing to provide you with our views regarding
reauthorization of the USA PATRIOT Act.
To date, many recently thwarted terrorist and criminal
plots can be directly attributed to provisions within the USA
PATRIOT ACT. The ACT offers federal law enforcement officers
the tools to stay ahead of violent criminals and better
protect the American citizenry from threats.
FLEOA sees this ACT as a crucial tool for law enforcement,
and not something that should periodically expire. The work
of federal law enforcement officers has only been enhanced by
the USA PATRIOT ACT.
Provisions dealing with:
1) Online Surveillance
2) Roving Wiretaps and Pen Resisters
3) Issuance of John Doe Warrants
4) Accessing financial records and documents
5) Records related to books and magazine purchases
6) Issuance of National Security Letters
In light of today's threats, the provisions listed above
are tools that help thwart terrorists and criminals that use
identity theft, the internet, cellular and satellite phones,
phishing schemes, social networking and wire transfers to
effect their crimes.
FLEOA has the distinct honor of representing the interests
of law enforcement officers from the Department of Justice,
Department of Homeland Security, Department of State,
Department of Defense, Department of Treasury, and a host of
other agencies. These officers are the front-line guardians
that protect our nation from terrorist and criminal threats.
They are the ones that have used the provisions in the USA
PATRIOT ACT to keep Americans safe under the microscope of
strict agency and judicial oversight that has yet to be cited
as ``excessive'' by any investigation or Inspector General's
office.
We would caution the Congress to be careful when trying to
re-work any provisions that have already been in effect and
have been effective.
Additionally, the short-term authorization is at odds with
a Congress that in the aftermath of the September 11th, 2001
attacks asked ``Why didn't we know and connect the dots?''
The USA PATRIOT ACT removed some of the barriers in place
that prevented us from ``connecting the dots'' and any
retraction of
[[Page S3216]]
those provisions is in effect, ``re-building the wall.''
Crime and terrorism will not ``sunset'' and are still
targeting our nation and American citizens. Just like
handcuffs, this tool should be a permanent part of the law
enforcement arsenal and arguments to the contrary are flawed
and do not recognize the reality that the ACT has worked.
In this nation, law enforcement is guided by an ethos to
act ``beyond reproach'' and Office of Inspector General's
offices ensure that is the case.
FLEOA greatly appreciates Congress' willingness to continue
this important national security tool and would caution you
not to put it ``back behind the wall'' and is willing to work
with Congress as any proposed legislation moves through it.
Respectfully yours,
J. Adler,
National President.
____
Society of Former Special Agents of the Federal Bureau of
Investigation, Inc.,
Dumfries, VA, April 14, 2011.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate,
Washington, DC.
Dear Senator McConnell: On behalf of the 8000 members of
the Society of Former Special Agents of the Federal Bureau of
Investigation, Inc. (Society), I am writing to inform you of
our views on the importance of permanently reauthorizing the
three provisions of the USA Patriot Act that are going to
expire on May 28, 2011.
The Society was established in 1937 as a fraternal,
educational, and community-minded organization to preserve
the FBI heritage in a spirit of friendship, loyalty, and
goodwill. As former and current Special Agents of the FBI,
our members are experienced in conducting sensitive criminal
and terrorism investigations and are concerned that any
changes to the Patriot Act that would make it more difficult
for the FBI to fulfill its vital mission of protecting our
great country.
In addition, the Society is concerned with the introduction
of new issues that could impede progress in reauthorizing
these important national security provisions. In view of the
bipartisan consensus for the reauthorization of these
provisions, we hope that their expiration can be avoided.
Since the September 11, 2001 terrorist attacks, Federal law
enforcement agencies have effectively utilized three sections
of the Patriot Act, namely: the business records provision,
the roving wiretap provision and the lone wolf surveillance
provision. These sections of the Patriot Act were adopted in
direct response to the September 11th attacks and to place
new restrictions and requirements on these sections of the
Act would be detrimental to Federal law enforcement efforts
to detect and prevent future terrorist attacks.
The business records provision, Section 215 of the Patriot
Act, allows investigators to apply to the U.S. Foreign
Intelligence Surveillance Court (FISA Court) for an order
requiring the production of business records related to
foreign intelligence operations or investigations of
international terrorism. This provision is utilized in
specific and rare circumstances. However, despite the
infrequent use of the provision, the ability to access
important records early in an investigation is critical. The
Society strongly encourages Congress to reauthorize this
provision on a permanent basis without limitations.
The roving wiretap provision, Section 206 of the Patriot
Act, allows the FISA Court to issue wiretap authorizations
that are not linked to specific telephones or computers if
the subject of the surveillance demonstrates an intent to
evade the surveillance. It is absolutely essential to provide
this ability to investigators due to the advanced technology
employed by criminal and terrorism networks and conspirators.
The failure to reauthorize this provision of the Patriot Act
or encumber the provision with restrictions would jeopardize
the importance of this valuable investigative tool.
The lone wolf provision, Section 6001 of the Intelligence
Reform and Terrorism Prevention Act of 2004, provides the
FISA Court with the authority to approve surveillance of non-
U.S. persons acting alone or not linked to a foreign entity
who are engaged in international terrorism or activities in
preparation of terrorist acts. The lone wolf provision
provides law enforcement with an important tool to obtain
necessary information to prevent dangerous terrorist acts
from occurring. The Society strongly encourages Congress not
to allow this provision to expire or place restrictions on
the provision that would weaken this vital investigative
tool.
The Society respects and appreciates your leadership on
these important issues. As former and current Special Agents
of the FBI, our members are very concerned with any changes
to the Patriot Act that would make it more difficult for the
FBI and other Federal law enforcement agencies to investigate
terrorists and their threats to our nation. We urge Congress
to reauthorize the expiring provisions of the Patriot Act
permanently and without restrictions as the three expiring
provisions are essential to the security of our country.
Sincerely,
Lester A. Davis,
President.
Mr. GRASSLEY. Mr. President, in addition to agents on the ground, we
have heard strong support for extending the expiring provisions of the
PATRIOT Act from members of the Bush and Obama administrations. We have
heard testimony from the Director of the FBI, the Attorney General, and
the Director of National Intelligence about the strong need to
reauthorize these provisions. These same offices have recommended
extending the provisions regardless of political ideology as both
Republican and Democratic administrations have backed the extensions.
The 4-year extension we are voting on today is a step in the right
direction. Extending the three expiring provisions without any
substantive amendment that would restrict or curtail the use of these
tools is very important, given the recent actions that led to the death
of Osama bin Laden. Now is not the time to place new restrictions and
heighten evidentiary standards on critical national security tools.
A lot has been said about these provisions and, unfortunately, most
of what has been said is incorrect. Congress enacted these provisions
and reauthorized them in 2005 following the 9/11 Commission Report,
which criticized the way our agents failed to piece together clues; in
other words, to connect the dots. Since that time, the three expiring
provisions have provided a great deal of information to agents who have
helped thwart terrorist attacks.
Let's be very basic. What is terrorism about? It is about killing
people living in Western Europe and North America. They don't like us,
they want to kill us, and we have to prevent that. They can make
continuous mistakes and not get their job done, but once the FBI makes
a mistake and lets one of them get away it is a victory for the
opposition. We can't afford a failure.
Examples along the lines that we can't have these failures: In
testimony before the House Judiciary Committee, Subcommittee on Crime,
Terrorism, and Homeland Security, Robert Litt, the general counsel of
the Office of the Director of National Intelligence, testified that a
section 215 order was used as part of the investigation by the FBI into
Khalid Aldawasare, who was arrested in Texas recently. It was later
revealed in a criminal case that he was purchasing explosive chemicals
and bombmaking components online and had scouted targets in Texas.
Mr. Litt also testified that section 215 orders were utilized to
obtain hotel records in the case where a suspected spy had arranged
lodging for intelligence officers. He also discussed the roving wiretap
provision and how it is used to help agents track foreign agents
operating inside the United States who switch cellular phones
frequently to avoid being caught. These examples are limited not
because the authorities aren't valuable, but because of how sensitive
the investigations are that utilize these authorities.
While the need for keeping personal and national security matters
classified may prevent the open discussion of further examples in this
setting--on the floor of the Senate--it is important to note that these
provisions are constantly under strict scrutiny by the inspector
general at the Department of Justice and by congressional oversight. In
fact, in a March 2008 report, the Justice Department inspector general
examined the FBI's use of section 215 orders and found: ``We did not
identify any illegal use of section 215 authority.'' Further, there are
no reported abuses of the roving surveillance authority, and the lone
wolf provision has not yet been utilized, so it is without abuse as
well.
While I agree these three provisions should be subject to strict
scrutiny from inspectors general and Congress, that oversight authority
already exists in the law and does not require amendments to these
tools to achieve the goal of oversight. As such, it is important that
Congress reauthorize these provisions quickly and without amendment.
I urge my colleagues to vote in support of the cloture motion on the
motion to proceed to S. 1038 because it provides a clean
reauthorization of these very vital tools for 4 years without
substantive changes. In other words, if it ain't broke, don't fix it.
While 4 years is a far cry from the permanence that I believe is
necessary on these provisions, it does provide more certainty and
predictability than continuing to pass short-term extension after
extension.
[[Page S3217]]
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. PAUL. Mr. President, there has been a lot of discussion of the
PATRIOT Act, and we are told basically that we wouldn't be able to
capture these terrorists if we didn't give up some of our liberties, if
we didn't give up some of the fourth amendment and allow it to be
easier for the police to come into our homes. We were so frightened
after 9/11 that we readily gave up these freedoms.
We said: Well, the fourth amendment is not that important. We will
just let the government look at all of our records, and we will make it
easier for the government to look at our records.
The question we have to ask, though, is whether we would still be
able to catch terrorists by using the fourth amendment as it was
intended and having the protections of the fourth amendment. What we
have to ask ourselves is, think about the worst person in our
communities. Think about someone accused of murder or rape or a
pedophile. We think of these people, and do we know what happens if
someone is accused of that? Even if it is 3 o'clock in the morning and
they want to get their records or they want to go into their houses,
they call a judge. This is something very important. They get the
warrants almost all the time. But it is one step of protection. What we
have is the protection where we don't have police officers writing
warrants to come into our houses. They have to have it reviewed by a
judge.
What we have done through the PATRIOT Act is taken away some of the
protections of the fourth amendment. The fourth amendment says we need
to name the person and the place to be searched. We have taken away
those protections. The fourth amendment says we need to have probable
cause. We have taken that away and made it to, if it is relevant, or we
think they might be related to it.
Originally, the FISA Court lowered the standards somewhat on the
fourth amendment, but it recognized that it was lowering the standard
and was careful. We had secret courts set up, and the FISA Court was
the court that dealt with things that had to do with national security
or terrorism or intelligence. The information was kept secret so we
didn't let everybody in the world know the name, but the name had to be
divulged to the judges. Well, those who argue that we have to have the
PATRIOT Act, or we have to do this or we will not be able to stop
terrorism, they need to explain why the FISA Court did tens of
thousands of search warrants and never turned any down. In fact, the
history before the PATRIOT Act was no search warrant had ever been
turned down.
So do we want to give up our liberties in exchange for more security?
Franklin said those who give up their liberty in exchange for security
may end up with neither.
Right now, if someone has a Visa bill that is over $5,000 and chooses
to pay for it over the phone, which is a wire transfer, the government
is probably looking at their Visa bill. They don't have to show
probable cause, and they don't have to have a judge's warrant. This
does apply to U.S. citizens. Often they will tell us: Oh, it is only
foreign terrorists we are looking at. They want us to feel good about
allowing them to spy. But this spying is going on by the tens of
thousands and even by the millions.
With regard to these suspicious activity reports, we have done over 4
million of them in the last 10 years. We are now doing over 1 million a
year. These suspicious activity reports, all the trigger is--it doesn't
have to have anything to do with terrorism. The trigger is just that
someone has over $5,000 that they have transferred by bank account.
We say, well, the courts have decided our bank records aren't
private. Well, the hell they aren't. They should be private. If someone
looks at my Visa records, they can tell whether I go to the doctor and
what kind of doctor I go to. They can conceivably tell what kind of
medication I am on. They can tell what kind of magazines I read. They
can tell what kind of books I order from Amazon. Do we want a
government that looks at our Visa bill? Do we want a government that
looks at all of our records and is finding out what our reading habits
are?
One of the provisions applies to library records. Do we really want
the government to go and find out what we are reading at the library?
We now have a President who is wanting to know where a person has
contributed before they do work for the government. Do we really want
that kind of all-encompassing government that is looking at every
record from top to bottom and invading our privacy?
There is another aspect of these so-called national security letters.
These are basically warrants that are written by FBI agents. No judge
reviews them. This is specifically what James Otis was worried about
when he talked about general warrants that weren't specifying the
person or the place and that were written by police officers. This is a
problem because this is--we depend on the checks and balances in our
society. We never want to give all of the authority to either one group
of Congress or to the President or to police or judges. We have checks
and balances to try to prevent abuse.
Some have said, well, if one has nothing to hide, why do you care?
The thing is, it will not always be angels who are in charge of
government. We have rules because we want to prevent the day that may
occur when we get somebody who takes over our government through
elected office or otherwise who is intent on using the tools of
government to pry into our affairs, to snoop on what we are doing, to
punish us for our political or religious beliefs. That is what we don't
ever want: to let the law become so expansive.
We have to realize we can still get terrorists. We get rapists and
murderers every day by calling a judge.
That is what I am asking for. I am asking that we go through and obey
the fourth amendment. Many conservatives have argued that, well, they
love the second amendment. Some liberals say, well, they love and will
protect the first amendment. Do you know what. If we do not protect the
entire bill of rights, we are not going to have any of it. If we want
to protect our right to own a gun, we need to protect our gun records
from the government looking at our gun records and finding out whether
we have been buying a gun at a gun show.
We need to protect our privacy. If we want to protect the first
amendment, we have to have the fourth amendment. In fact, we
specifically had to go back there. The original PATRIOT Act said we
could not even consult with our attorneys. We could not even tell our
attorneys. We were gagged from telling our attorneys.
Even now, though, one may say: I do not know if they have
investigated me. Do you know why? Because they tell our phone company,
if they are looking at our phone records right now or our Visa records,
it is against the law for Visa or the phone company to tell us that. It
is hundreds of thousands of dollars of fines and jail time. It is 5
years in jail if our phone company tells us they have been spying on
us.
Some of this does not even require a letter from government. Some of
it is done by the banks. The suspicious activity reports, we have
simply told the bank: Here, anybody who deals in cash, anybody who has
over a $5,000 wire transfer or who deals in large amounts of money--it
is incumbent upon the bank to spy on their customers now.
This is a real problem, and I think we need to have some argument and
debate in our country over these things. Some want to have these things
permanently. They want to permanently give up their fourth amendment
protections, and I disagree strongly. Not only would I let these
expire, but I think we should sunset the entire PATRIOT Act and protect
our liberties as intended by our Founding Fathers.
James Otis was an attorney in Boston, and he wrote about these things
they called, in those days, writs of assistance. These were general
warrants. The king would write them--or actually they were written by
soldiers here. They did not name the person to be searched or the
place, and they were used as a way to have the king have his way with
the people and to bully the people.
The idea of general warrants is what sorely offended our Founding
Fathers. That is why we got the fourth amendment. The fourth amendment
was a product of a decade or more of James Otis arguing cases against
the British Government.
[[Page S3218]]
But the question we have to ask ourselves when thinking about these
issues is, is it so simple that we can just say: Well, I am either
against terrorism or I am going to let terrorists run wild and take
over the country. One can be opposed to terrorists. We can go after
terrorists. We can go after murderers and rapists and people who commit
crimes. But we can do it with a process that protects the innocent.
I think so far they say we have looked at 28 million electronic
records. We have looked at 1,600,000 text messages. We have 800,000
hours of audio. We have so much audio they do not even listen to it
all. Twenty-five percent of what they have recorded of our phone
conversations is not listened to because they do not even have time to
listen to it.
My point would be that we are eavesdropping on so many people it
could be we are missing out and not targeting. Just like at airports--
every one of us is being searched in the airport. We are not
terrorists, and we are no threat to our country. Why are we not looking
for people who would attack us and spending time on those people? Why
do we not go to a judge and say: This person we suspect of dealing with
this terrorist group. Will you give us a warrant?
Why don't we have those steps? Instead, we are mining and going
through millions of records. I think we are overwhelmed with the
records that we may well be doing less of a good job with terrorism
because we are looking at everyone's records.
The bottom line is, I do not want to live in a country where we give
up our freedoms, our privacy. I do not want to live in a country that
loses its constitutional protections of us as individuals. We do have a
right to privacy. We have a right not to have the government reading
our Visa bills every month. We do have rights, and we should protect
them. We should not be so fearful that we say: Well, I am a good
person. I don't care, just look at my records. If we do, we are setting
ourselves up for a day when there will be a tyranny, when there will be
a despot who comes into power in the United States and who uses those
rules for which we said: Oh, well, I don't have anything to hide.
What happens when someone takes over who believes one's religion is
to be combatted, who believes one's political beliefs and literature
should be combated? What happens when that day comes?
We cannot give up our liberty. If we do, if we give up our liberty
and we trade it for security, we will have neither.
So I rise in opposition to the cloture motion. I will be offering
amendments to the PATRIOT Act this week, and we will be having a real
debate about how we can stop terrorism but also preserve freedom at the
same time.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I rise in support of invoking cloture
on the motion to proceed to S. 1038, the PATRIOT Sunsets Extension Act
of 2011.
In 4 days, on May 27, three FISA provisions--the lone wolf, roving
wiretap, and section 215 business records authorities--will expire
unless Congress acts to reauthorize them.
The House has been working on a bill, H.R. 1800, that would make the
lone wolf provision permanent and extend the other two provisions until
December 2017. Senators Feinstein and Leahy have sponsored bills that
would, among other things, extend all three provisions until December
2013.
It seems to me that S. 1038, with its extension of the three sunsets
until June 1, 2015, is a reasonable compromise. Although I believe each
one of these tools should be made permanent, this bill will ensure that
our intelligence professionals have the tools they need to keep our
Nation safe.
There is little disagreement that these provisions should and must be
reauthorized. FBI Director Robert Mueller has testified repeatedly that
each one of these provisions is important to both national security as
well as criminal investigations. But their importance does not end
there. Because of enhanced information-sharing rules and procedures
other parts of the intelligence community, such as the National
Counterterrorism Center and the National Counterproliferation Center,
often depend on the information collected under these provisions.
Losing or changing these authorities could adversely impact the
intelligence community's ability to analyze and share important
national intelligence information.
According to Director Mueller, with all the new technology, it is
easy for a terrorist target to buy four or five cell phones, use them
in quick succession, and then dump them to avoid being intercepted. He
has testified that the ability to track terrorists when they do this is
``tremendously important.'' I could not agree more because it is pretty
obvious those guys are up to something, and it is not good. Our enemies
often know our own laws better than we do. They understand the hoops
and hurdles the government must clear to catch up to or stay ahead of
them.
Keep in mind the FBI cannot use a roving wiretap until a court finds
probable cause to believe the target is an agent of a foreign power.
Some critics claim the provision allows the FBI to avoid meeting
probable cause as surveillance moves from phone to phone. This claim is
simply not accurate, as every roving wiretap must be approved by a FISA
Court judge.
If a target changes their cell phone and the FBI moves to surveil the
new phone, the court is notified of that change. All of the protections
for U.S. person information that apply to any other FISA wiretap also
apply to roving wiretaps.
In short, while this authority is a tremendous asset for the FBI and
has been used 140 times over the past 5 years, it poses no additional
civil liberties concerns, and it should be renewed without delay.
With regard to section 215, the Business Records Act, over the past
several years the rallying cry against the PATRIOT Act has centered on
section 215 FISA business records authority. Section 215 allows the FBI
to seek FISA Court authority to obtain business records, such as hotel
information or travel records. As with each one of the expiring
provisions, the FBI must meet the statutory standard of proof.
The inspector general from the Department of Justice conducted
several audits of the FBI's use of section 215 orders and found no
abuses of the authority. Director Mueller testified that the business
records sought by the FBI in terrorism investigations are ``absolutely
essential to identifying other persons who may be involved in terrorist
activities.''
The lone wolf provision: The sole expiring provision under the
PATRIOT Act that has not been used by the FBI, prompting some critics
to demand its repeal, is the lone wolf definition of an agent of a
foreign power. Recent events have demonstrated that self-radicalizing
individuals with no clear affiliation to existing terrorist groups are
a growing threat to national security. The lone wolf provision provides
a counter to that threat, at least in the cases of a non-U.S. person
who is not readily identifiable with a particular foreign power.
The lone wolf provision is 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. While we may not use it too much, we will certainly wish we
had it when the right situation comes up.
In conclusion, I am grateful for the leadership of Senators Reid and
McConnell on this crucial piece of legislation. This bill will ensure
that our intelligence and law enforcement professionals can continue
doing what they do best, without any additional restrictions.
Our Nation has been fortunate to have not suffered a sequel to the 9/
11 attacks, and much of the credit goes to the dedicated work of our
intelligence and law enforcement professionals. We owe them not only
our thanks but the recognition that their jobs are as difficult as it
is, and we should not be taking any steps that will make their
responsibility to protect this country any more difficult.
Mr. President, I urge a vote in support of invoking cloture on the
motion to proceed.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[[Page S3219]]
Mr. CORNYN. Mr. 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. 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 the motion to
proceed to S. 1038, a bill to extend expiring provisions of
the USA PATRIOT Improvement and Reauthorization Act of 2005
and the Intelligence Reform and Terrorism Prevention Act of
2004 until June 1, 2015, and for other purposes.
Harry Reid, Dianne Feinstein, Bill Nelson, Amy Klobuchar,
Jeff Bingaman, Richard Blumenthal, Mark R. Warner,
Sheldon Whitehouse, Benjamin L. Cardin, Kay R. Hagan,
Kent Conrad, Charles E. Schumer, Joe Manchin III,
Sherrod Brown, Mark L. Pryor, Jeanne Shaheen, Joseph I.
Lieberman, Kirsten E. Gillibrand.
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. 1038, a bill to extend the expiring provisions
of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the
Intelligence Reform and Terrorist Prevention Act of 2004 until June 1,
2015, and for other purposes, 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. REID. I announce that the Senator from Colorado (Mr. Bennet), the
Senator from Ohio (Mr. Brown), the Senator from Illinois (Mr. Durbin),
the Senator from Missouri (Mrs. McCaskill), the Senator from Arkansas
(Mr. Pryor), and the Senator from Rhode Island (Mr. Whitehouse) are
necessarily absent.
I further announce that, if present and voting, the Senator from
Colorado (Mr. Bennet) and the Senator from Illinois (Mr. Durbin) would
each vote ``yea.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from Tennessee (Mr. Alexander), the Senator from Missouri (Mr. Blunt),
the Senator from Massachusetts (Mr. Brown), the Senator from
Mississippi (Mr. Cochran), the Senator from Tennessee (Mr. Corker), the
Senator from South Carolina (Mr. Graham), the Senator from Oklahoma
(Mr. Inhofe), the Senator from Utah (Mr. Lee), the Senator from Idaho
(Mr. Risch), the Senator from Florida (Mr. Rubio), the Senator from
Alabama (Mr. Shelby), and the Senator from Louisiana (Mr. Vitter).
Further, if present and voting, the Senator from Tennessee (Mr.
Corker) would have voted ``yea,'' and the Senator from Tennessee (Mr.
Alexander) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 74, nays 8, as follows:
[Rollcall Vote No. 75 Leg.]
YEAS--74
Akaka
Ayotte
Barrasso
Bingaman
Blumenthal
Boozman
Boxer
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Collins
Conrad
Coons
Cornyn
Crapo
DeMint
Enzi
Feinstein
Franken
Gillibrand
Grassley
Hagan
Harkin
Hatch
Hoeven
Hutchison
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McConnell
Menendez
Mikulski
Moran
Murray
Nelson (NE)
Nelson (FL)
Portman
Reed
Reid
Roberts
Rockefeller
Schumer
Sessions
Shaheen
Snowe
Stabenow
Thune
Toomey
Udall (CO)
Udall (NM)
Warner
Webb
Wicker
Wyden
NAYS--8
Baucus
Begich
Heller
Merkley
Murkowski
Paul
Sanders
Tester
NOT VOTING--18
Alexander
Bennet
Blunt
Brown (MA)
Brown (OH)
Cochran
Corker
Durbin
Graham
Inhofe
Lee
McCaskill
Pryor
Risch
Rubio
Shelby
Vitter
Whitehouse
The PRESIDING OFFICER. On this vote, the yeas are 74, the nays are 8.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
Mr. DURBIN. Mr. President, I ask the Record show that had I been
present for vote No. 75, I would have voted ``yea'' on the motion to
invoke cloture on the motion to proceed to S. 1038. I unfortunately
missed the vote after being unavoidably detained due to mechanical
issues with U.S. Airways flight No. 2039.
Mr. BENNET. Mr. President, I unfortunately experienced a travel delay
on my way back to Washington this evening and was unable to make
tonight's procedural vote on whether to reauthorize a portion of the
PATRIOT Act. My plane was late, and the Senate had to close the vote at
6 to ensure that 30 hours of postcloture time expires by midnight
tomorrow night. Keeping to this schedule is important since three
provisions of the USA PATRIOT Act are scheduled to expire later this
week.
Had I been present, I would have voted ``yea.'' I would thus ask to
let the Record reflect that I would have voted ``yea'' on Recorded Vote
No. 75.
Ms. KLOBUCHAR. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Manchin). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. JOHNSON of Wisconsin. 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. JOHNSON of Wisconsin. Mr. President, I ask unanimous consent to
speak as if in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
