[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 

  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 
  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 
  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 

[[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. 
  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 
  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 
  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 
  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.
     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 
  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 
  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 
  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 
  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.


  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 
  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 
  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 
  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 
  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 
       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 

                         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 
       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 
       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.
                                                    Konrad Motyka,

                                           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 
       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 
       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 
       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.
                                                  Lester A. Davis,

  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 
  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 

[[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 
  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 
  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 
  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 
  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 
  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 
  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.]


     Johnson (SD)
     Johnson (WI)
     Nelson (NE)
     Nelson (FL)
     Udall (CO)
     Udall (NM)



                             NOT VOTING--18

     Brown (MA)
     Brown (OH)
  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 
  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.