[Congressional Record: May 24, 2011 (Senate)]
[Page S3247-S3262]
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 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.
schedule
Mr. REID. Madam President, following any leader remarks, the Senate
will resume consideration of the motion to proceed to S. 1038, the
PATRIOT Act extension, postcloture. There will be a joint meeting of
Congress at 11 a.m. with Israeli Prime Minister Netanyahu. Senators
should gather in the Senate Chamber at 10:30 to proceed over to the
House at about 10:40. We will proceed there as a body.
Measures Placed on the Calendar--S. 1050, S.J. Res. 13, S.J. Res. 14
Mr. REID. Madam President, I understand there are three measures at
the desk due for a second reading.
The ACTING PRESIDENT pro tempore. The clerk will read the titles of
the bills for a second time.
The legislative clerk read as follows:
A bill (S. 1050) to modify the Foreign Intelligence
Surveillance Act of 1978 and to require judicial review of
National Security Letters and Suspicious Activity Reports to
prevent unreasonable searches, and for other purposes.
A joint resolution (S.J. Res. 13) declaring that a state of
war exists between the Government of Libya and the Government
and the people of the United States, and making provision to
prosecute the same.
A joint resolution (S.J. Res. 14) declaring that the
President has exceeded his authority under the War Powers
Resolution as it pertains to the ongoing military engagement
in Libya.
Mr. REID. I would object to any further proceedings with respect to
these bills en bloc.
The ACTING PRESIDENT pro tempore. Objection is heard. The bills will
be placed on the calendar.
[...]
Mr. LEAHY. Mr. President, nearly 10 years after the attacks of
September 11, 2001, every one of us in the Senate knows America
continues to face threats of terrorism. Our allies know this, as well.
The President's dogged pursuit and success earlier this month against
Osama bin Laden does not mean we can become complacent or less
vigilant. We must remain vigilant and ensure the men and women of our
law enforcement and intelligence agencies have all the appropriate
tools necessary to protect our Nation and the American people. But as
every Vermonter knows, tools are only useful if they are regularly
checked and maintained. Otherwise they become blunt instruments that
can do harm, rather than accomplish the job.
Congress recognized this basic notion in 2001, when we first wrote
the USA PATRIOT Act. I worked with the then-Republican House majority
leader, Dick Armey to include sunsets on certain surveillance
authorities in the bill. Even though we had vastly different political
philosophies, we both agreed we had to have sunset provisions. In 2006,
when Congress reauthorized the USA PATRIOT Act, I worked to ensure that
certain sunsets were renewed, and added audits on the use of powers
with the potential to unnecessarily intrude on the privacy of
Americans. We should not give a blank check to anybody--whether it is a
Republican or Democratic administration. We are, after all, Americans
who believe in our individual liberties.
Having granted the Government broad authority to gather vast amounts
of information about the daily lives of Americans, I wanted to do what
we could to ensure that unfettered information gathering did not occur
at the expense of Americans' basic constitutional rights and civil
liberties. The sunsets and audits provide Congress an opportunity to
examine whether the PATRIOT Act tools are being used appropriately, and
if not, to sharpen, refine, or restrain those tools accordingly.
The audits we added in 2005 or 2006 proved to be very helpful because
they identified that there were abuses in the way the PATRIOT Act was
being used, specifically with respect to national security letters and
the use of ``exigent letters.'' Without this oversight, we probably
never would have found out about those abuses. But we found out about
them and we worked with the FBI to correct those matters.
That brings us to today. The Senate has the opportunity to reexamine
and redefine key PATRIOT Act provisions, and I think we should take
that opportunity to make improvements to our
[[Page S3249]]
current law. That is why I have led the Senate Judiciary Committee to
diligently consider these matters through a series of hearings and
meetings. The committee responded by reporting improvements, both last
year and again this year, through bipartisan legislation. They are good
measures, and we have worked to ensure that they would not compromise
the effectiveness of our law enforcement and intelligence capabilities.
In fact, much of the language was derived after consultation with the
administration, including the intelligence community.
The Attorney General and others have repeatedly assured us that the
measures to enhance oversight and accountability--such as audits and
public reporting--would not sacrifice ``the operational effectiveness
and flexibility needed to protect our citizens from terrorism'' or
undermine ``the collection of vital foreign intelligence and
counterintelligence information.''
In fact, the Attorney General has consistently said the bill passed
out by the Senate Judiciary Committee struck ``a good balance'' by
extending the PATRIOT Act authorities while adding accountability and
civil liberties protections. For additional detail and legislative
history, I refer Senators to the Senate report on the bill reported by
the Senate Judiciary Committee this year, Senate Report No. 112-13.
I ask unanimous consent that a December 9, 2010, letter from the
Attorney General to me making these points be printed in the Record,
along with a February 19, 2010, letter from the Director of National
Intelligence to House leaders.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. Unfortunately, the bill now before the Senate merely
extends the expiring authorities to June 1, 2015. Regrettably, these
authorities have not been refined since 2006. If that remains the case
through the extensions that are contemplated by this bill, it will
amount to 9 years of this law without any legislative improvement. I
think most of us understand that we can do better. The amendment I have
filed seeks to change that by improving the PATRIOT Act.
I appreciate the efforts made by the majority leader to craft a
compromise. I am sorry that the Republican leadership in Congress has
insisted on an extension of authorities without any improvements. The
amendment I have filed and wish to offer along with Senators Paul,
Cardin, Bingaman, Coons, Shaheen, Wyden, Franken, Gillibrand, Harkin,
Durbin, Merkley, Boxer, and Akaka, makes significant improvements to
current law, promotes transparency, and expands privacy and civil
liberties safeguards.
I ask unanimous consent to have a sectional analysis of the amendment
printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. LEAHY. One of the improvements Congress should make is to repair
a constitutional infirmity in the current law. Three years ago, in Doe
v. Mukasey, the U.S. Court of Appeals for the Second Circuit found that
the nondisclosure provision of the statute authorizing issuance of
national security letters was constitutionally defective. If we do not
make a change, that constitutionally defective part of the national
security letter provision would remain. As part of the comprehensive
set of reforms in the bill reported favorably by the Judiciary
Committee, I proposed a simple statutory fix that would enable the FBI
to obtain the information it needs, while addressing the constitutional
concerns. In fact, this proposal has never been controversial. In fact,
during the last Congress, Senator Sessions and Senator Bond, the
ranking Republicans on the Senate Judiciary and Intelligence
Committees, cosponsored a bill incorporating the very legislative
remedy I proposed.
This is a straightforward matter that needs to be fixed. The
underlying bill does not fix the problem; our amendment would. I trust
Senators would not want to proceed to vote on an unconstitutional law,
one that violates our fundamental charter as a nation and, of course,
the liberty of all Americans. No one who claims to honor the
Constitution should proceed in so cavalier a manner. If we are to
restore the constitutional underpinning of the NSL authority, the
Senate should adopt this needed improvement.
I am also troubled by the refusal of the Republican leadership to
agree on periodic audits on the use by the government of PATRIOT Act
surveillance authorities. When I speak of the Republican position, I
want to mention that this is not uniform within the Republican Party,
as there are many Republicans who believe we should have these audits.
Basic transparency and accountability are vital to ensuring that the
government does not overstep its legal authority. We grant many
authorities to our government, but we should do so with the confidence
that if the Government oversteps its authority, Congress has the power
to bring it back in line. In fact, it is only because of the audits
that were mandated by the 2006 PATRIOT Act reauthorization bill that
the American public became aware of some of the abuses and misuses of
the national security letters, which were significant.
Without that public accountability and congressional oversight, the
FBI would not have made improvements to its system of tracking NSL
issuance. Because of those audits, we are more confident today that FBI
agents are following proper procedures for obtaining private
information about Americans--rather than improperly using ``exigent
letters'' to circumvent the rules, or using Post-it Notes to keep track
of records. Yet the underlying bill omits audits and public reporting;
our amendment includes important audit requirements and public
reporting to provide accountability and protect Americans' rights.
No one can seriously contend that audits by the inspector general of
past operations present any operational concerns to law enforcement or
intelligence gathering. Audits do not interfere; they provide
accountability and ensure that government follows the rules.
Mr. President, you and I and 98 other Members of this body have to
follow the rules. Certainly, those in law enforcement should have to
follow the rules, as well. These audits have been demonstrated to be
vital oversight tools, and they should be incorporated into the law.
The language in our amendment is the product of more than a year and a
half of extensive negotiations with Republicans and Democrats, the
intelligence community, the Department of Justice. This year, the
Senate Judiciary Committee bill won the support of Senator Lee. Last
Congress, a virtually identical bill received the votes of Senators Kyl
and Cornyn and was reported favorably by the Senate Judiciary Committee
to the Senate. The bipartisan amendment we seek to offer is a
reasonable package of reforms that preserves the ability of the
government to use the PATRIOT Act surveillance tools, while promoting
transparency, accountability, and oversight.
I have often said that the Senate should not shirk its duty to
reexamine carefully and critically the provisions of the PATRIOT Act.
We should consider ways to improve the law consistent with our core
constitutional principles. That is what I have tried to do. That is
what Vermonters expect. I intend to vigilantly guard Americans' privacy
and civil liberties, while doing all I can to keep all Americans
secure. That is what we expect in Vermont, and I must assume that is
what we expect in the other 49 States. Without a single improvement or
reform, without even a word that recognizes the importance of
protecting the civil liberties and constitutional privacy rights of
Americans, the underlying bill represents a missed opportunity. Let us
provide our law enforcement and intelligence professionals with the
tools they need and give these professionals the security and certainty
they need to protect our Nation. But let us also at the same time
faithfully perform our duty to protect the constitutional principles
and civil liberties upon which this Nation was founded and on which the
American people depend.
The vast majority of the 300 million Americans in this great country
are law-abiding, honest men and women. We should protect against
arbitrarily lumping them all into the category of potential
lawbreakers, or enabling the government to search homes or businesses
without proper reason. We fought a revolution in this country to stop
that from happening, and it is no different today.
[[Page S3250]]
One of the things that has kept us so strong as a nation is our
ability to protect the individual rights of all Americans. We can go
after the lawbreakers, just as we got Osama bin Laden, while at the
same time protecting the principles of our country. We must not let the
terrorists win by compromising our own rights and liberties in this
country. The terrorists who seek to harm us would certainly take away
from all of us--women and men alike--the constitutional rights we hold
dear. We must not allow that.
The American people expect us both to protect our rights and to keep
us safe, and I believe our amendment does just that. That is why I hope
all Senators will support the Leahy-Paul amendment.
Exhibit 1
Washington, DC, December 9, 2010.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Leahy: This responds to your letter of March
17, 2010, which asked the Department of Justice to consider
implementing administratively certain enhanced civil
liberties protections that were included in S. 1692, the USA
PATRIOT Act Sunset Extension Act, as reported by the Senate
Judiciary Committee.
In my letter of November 9, 2009, I expressed strong
support on behalf of the Department for the bill as reported,
which would reauthorize several important Foreign
Intelligence Surveillance Act (FISA) authorities while
enhancing protections for civil liberties and privacy in the
exercise of these essential national security tools.
The bill would reauthorize section 206 of the USA PATRIOT
Act, which provides authority for roving surveillance of
targets who take steps that thwart FISA surveillance; section
215 of the USA PATRIOT Act, which provides authority to
compel production of business records and other tangible
things with the approval of the Foreign Intelligence
Surveillance Court (the FISA Court); and section 6001 of the
Intelligence Reform and Terrorism Prevention Act, which
provides authority to target with FISA searches or
surveillance non-United States persons who engage in
international terrorist activities but are not necessarily
associated with an identified terrorist group. Earlier this
year, Congress acted to extend the expiring authorities until
February 28, 2011. As that date approaches, I strongly urge
that Congress again take action to ensure that these
provisions remain in force.
Assuming these authorities are reauthorized, the Department
has determined that many of the privacy and civil liberties
provisions of S. 1692 can be implemented without legislation.
Indeed, in a number of instances, we have already taken steps
to do so. I am confident that these measures will enhance
standards, oversight, and accountability, especially with
respect to how information about U.S. persons is retained and
disseminated, without sacrificing the operational
effectiveness and flexibility needed to protect our citizens
from terrorism and facilitate the collection of vital foreign
intelligence and counterintelligence information.
National Security Letters
Your letter seeks our response regarding several matters
related to National Security Letters (NSLs): notification to
recipients of NSLs of their opportunity to contest the
nondisclosure requirement; issuance of procedures related to
the collection, use and storage of information obtained in
response to NSLs; retention of a statement of specific facts
that the information sought is relevant to an authorized
investigation; and increased public reporting on the use of
NSLs.
You will be pleased to know that as of February 2009, all
NSLs are required to include a notice that informs recipients
of the opportunity to contest the nondisclosure requirement
through the government initiated judicial review. In most
cases, this notice is automatically generated by the NSL
subsystem. Domestic Investigations and Operations Guide
(DIOG) 11.9.3.E. The FBI also will ensure that in any case in
which a recipient challenges a nondisclosure order, the
recipient is notified when compliance with the order is no
longer required. Thus far, there have been only four
challenges to the non-disclosure requirement, and in two of
the challenges, the FBI permitted the recipient to disclose
the fact that an NSL was received. If and when the volume of
such requests becomes sufficiently large that solutions
beyond ``one-off' notifications are required, the FBI will
develop appropriate policies and procedures to notify the
recipient when non-disclosure is no longer required.
I also am pleased to report that I approved Procedures for
the Collection, Use and Storage of Information Derived from.
National Security Letters on October 1, 2010, and these
procedures have been provided to the Judiciary and
Intelligence Committees. The FBI's current practice is
consistent with the procedures and the FBI is working on
formal policy to implement them. In addition, DOJ and ODNI
will shortly complete work on a joint report to Congress on
NSL ``minimization'' as required by the PATRIOT
Reauthorization Act of 2005.
As to the information retained internally in connection
with the issuance of NSLs, it is current policy for the FBI
to retain a statement of specific facts showing that the
information sought through NSLs is relevant to an authorized
investigation. DIOG Sec. 11.9.3.C.
The Department appreciates the desire of the Committee for
enhanced public reporting on the use of NSLs. Accordingly,
although the FBI cannot provide information regarding
subcategories of NSLs in a public setting, it will continue
to report publicly the aggregate numbers of NSLs on an annual
basis and will evaluate whether any additional information
can be publicly reported.
Section 215 Orders
Your letter also raises a number of matters related to
section 215 orders. You seek assurances that the government
will not rely on the conclusive presumption in section 215
and will present the FISA Court with a complete statement of
facts sufficient to show relevance of the tangible things
requested to an authorized investigation. It is current FBI
practice to provide the Foreign Intelligence Surveillance
Court with a complete statement of facts to support issuance
of an order. The FBI is reviewing the DIOG to determine
whether changes need to be made to reflect this practice.
With respect to section 215 records that contain bookseller
records, or are from a library and contain personally
identifiable information about a patron of the library, we
are prepared to require a statement of specific and
articulable facts as would have been required under S. 1692,
and to notify Congress should it become necessary to change
that practice.
You ask the Department to issue policy guidance providing
that certifications accompanying applications for section 215
nondisclosure orders must include an appropriately thorough
statement of facts that sets forth the need for
nondisclosure. I am pleased to report that this is current
FBI practice, and the FBI is reviewing the DIOG to determine
whether revisions should be made to reflect this practice.
You also ask the Department to institute guidelines to
require court-approved minimization procedures for section
215 orders and pen register and trap and trace (PR/TT)
devices. Minimization procedures are already required by
statute in relation to section 215 orders. 50 USC
1861(b)(2)(B). The proposal to extend this requirement to PR/
TT orders is intended to apply only to certain intelligence
collection activities. Procedures governing these operations
are currently in effect, having been proposed by the
government and approved by the FISA Court.
Finally, you ask the Department to consider providing an
annual unclassified report on the use of FISA authorities and
the impact on privacy of United States persons. I believe
that providing greater transparency regarding the U.S.
government's exercise of FISA authorities is an important
objective, and will show the care taken by officials to
implement and comply with constitutional and statutory
requirements to protect the privacy of United States persons.
Although the Department has concerns that there may be little
additional information that can be provided in an
unclassified format and that such unclassified information
could be unintentionally misleading, we are prepared to work
with the committee and our partners in the Intelligence
Community to determine whether there is a way to overcome
these difficulties and make additional information publicly
available regarding the use of these authorities.
Taken together, I believe these measures will advance the
goals of S. 1692 by enhancing the privacy and civil liberties
our citizens enjoy without compromising our ability to keep
our nation safe and secure.
I hope this information is helpful. The Department stands
ready to work with Congress to ensure that the expiring FISA
authorities are reauthorized in a timely way.
Sincerely,
Eric H. Holder, Jr.,
Attorney General.
____
February 19, 2010.
Hon. Harry Reid,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Nancy Pelosi,
Speaker, House of Representatives,
Washington, DC.
Dear Majority Leader Reid and Speaker Pelosi: Over the past
several months, Congress has been considering the
reauthorization of three important provisions of the Foreign
Intelligence Surveillance Act (FISA), which are scheduled to
expire on February 28, 2010: section 206 of the USA PATRIOT
Act, which provides authority for roving surveillance of
targets who take steps to thwart FISA surveillance; section
215 of the USA PATRIOT Act, which provides 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 authority to target with FISA surveillance
non-United States persons who engage in international
terrorist activities but are not necessarily associated with
an identified terrorist group. National security requires
that these provisions reauthorized before they expire.
As discussed in the Attorney General's November 9, 2009
letter, we believe that S. 1692. the USA PATRIOT Act Sunset
Extension Act, as reported by the Senate Judiciary Committee,
strikes the right balance by both reauthorizing these
essential national security tools and enhancing statutory
protections for civil liberties and privacy in the exercise
of these and related authorities. We
[[Page S3251]]
were very pleased that the bill received bipartisan support
in the Committee.
Since the bill was reported, we have negotiated a number of
specific changes with the sponsors of the bill which we
support including in the final version of this legislation.
Among these are several provisions derived from the bills
reported by the House Judiciary Committee and introduced by
House Permanent Select Committee on Intelligence Chairman
Silvestre Reyes in November.
We strongly support the prompt consideration of USA PATRIOT
Act reauthorization legislation based on S. 1692, together
with the changes to which our staffs have informally agreed.
However, if Congress is unable to complete work on this
measure before these authorities expire, it is imperative
that Congress pass a temporary extension of sufficient length
to ensure that there is no disruption to the availability of
these vital tools in the fight against terrorists.
As was previously noted in a September 14 letter from the
Department of Justice to Senator Patrick Leahy, the business
records authority has been used to support important and
highly sensitive intelligence collection operations, of which
both Senate and House leadership, as well as Members of the
Intelligence and Judiciary Committees and their staffs are
aware. We can provide additional information to Members
concerning these and related operations in a classified
setting.
Finally, we remain committed to working with Congress to
examine additional ways to enhance protection for civil
liberties and privacy consistent with effective use of these
important authorities.
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,
Eric H. Holder, Jr.
Dennis C. Blair.
____
Exhibit 2
Section-By-Section Summary of SA334 to S.1038 the Leahy-Paul-Cardin-
Bingaman-Coons-Shaheen-Wyden-Franken-Gillibrand-Harkin-Durbin-Merkley-
Boxer-Akaka Amendment (HEN11338)
This amendment adds the following sections at the end of
S.1038:
Section 3. Additional Sunsets.
This section establishes a new sunset of December 31, 2013,
on the use of NSLs. This section also changes the sunset
dates for provisions under the FISA Amendments Act of 2008
(Pub. L. No. 110-261) from December 31, 2012 to December 31,
2013. This section also makes conforming amendments to FISA
and other applicable laws consistent with the sunsets.
Section 4. Orders for Access to Certain Business Records and
Tangible Things.
This section modifies the standard for obtaining a court
order for tangible things under FISA. Current law requires
the Government to submit a statement of facts showing
reasonable grounds to believe that the tangible things sought
are relevant to an authorized investigation. However, current
law states that the tangible things sought are presumptively
relevant if the Government shows that they pertain to (a) a
foreign power or an agent of a foreign power, (b) the
activities of a suspected agent of a foreign power who is the
subject of such an authorized investigation, or (c) an
individual in contact with, or known to, an agent of a
foreign power who is the subject of such authorized
investigation. This section removes the presumption of
relevance described above. It requires the Government to
provide a statement of the facts and circumstances relied
upon by the applicant to justify the applicant's belief that
the tangible things sought are relevant. This ensures that
the Government is presenting a thorough statement of facts to
the court and strengthens judicial oversight. The Department
of Justice has indicated that it does not rely on this
presumption, and that its current practice is to provide the
Foreign Intelligence Surveillance Court with a complete
statement of facts to support issuance of an order.
Section 3(a)(2)(A) alters certain requirements with respect
to applications made pursuant to 50 U.S.C. 1861. These
changes are not intended to affect or restrict any activities
approved by the FISA court under existing statutory
authorities. Rather, this provision is intended to ensure
that in applications made pursuant to 50 U.S.C. 1861, the
Government must submit a statement of the facts it relies on
to support its belief that the items or information sought
are relevant to an authorized investigation and that such
relevance is not to be presumed based on the presence of
certain factors.
To obtain bookseller records or library records that
contain personally identifiable information, the Government
must provide a statement of facts showing reasonable grounds
to believe the tangible things are relevant to an authorized
investigation and pertain to (a) an agent of a foreign power,
(b) the activities of a suspected agent, or (c) an individual
in contact with or known to a suspected agent of foreign
power subject to the investigation. ``Bookseller records''
are defined as meaning any transactional records reflecting
the purchase or rental of books, journals, or magazines,
whether in digital or print form. The Department of Justice
has already agreed to implement this requirement
administratively.
This section also requires court review of minimization
procedures. Finally, this section includes transition
procedures to ensure that any order in effect at the time of
enactment remains in effect until the expiration of the
order.
Section 5. Orders for Pen Registers and Trap and Trace
Devices for Foreign Intelligence Purposes.
Under current law, in order to obtain a FISA pen/trap, the
Government must certify that the information sought is merely
foreign intelligence information or is relevant to an
investigation to protect against terrorism. The bill modifies
the standard for obtaining a pen/trap to require the
Government to provide a statement of the facts and
circumstances relied upon by the applicant to justify the
applicant's belief that the information likely to be obtained
is relevant. This ensures that the Government is presenting a
thorough statement of facts to the court and strengthens
judicial oversight.
Section 4(a)(2)(A) alters certain requirements with respect
to applications made pursuant to 50 U.S.C. 1842. These
changes are not intended to affect or restrict any activities
approved by the FISA court under existing statutory
authorities. Rather, this provision is intended to ensure
that in applications made pursuant to 50 U.S.C. 1842, the
Government must submit a statement of the facts it relies on
to support its belief that the items or information sought
are relevant to an authorized investigation.
This section also requires minimization procedures, which
are not required under current law, and makes those
procedures subject to court review. Section 4(b) governs
procedures for minimization of the retention and
dissemination of information obtained pursuant to 50 U.S.C.
1842 where appropriate in exceptional circumstances. This
provision is intended to provide a statutory footing for the
existing practice whereby specialized minimization procedures
are implemented in certain limited circumstances under FISA
court authorization and oversight.
Finally, this section includes transition procedures to
ensure that any order in effect at the time of enactment
remains in effect until the expiration of the order.
Section 6. Limitations on Disclosure of National Security
Letters.
This section authorizes the Government to prohibit
disclosure of the receipt of an NSL (there are four different
statutes that authorize NSLs) where a high level official
certifies that disclosure may result in danger to the
national security, interference with an investigation, or
danger to the life or safety of a person. The FBI has stated
that its current practice is to require such a certification
to include an appropriately thorough statement of facts
setting forth the need for nondisclosure.
The recipient of an NSL nondisclosure order may challenge
the nondisclosure at any time by notifying the Government of
a desire to not comply. Section 7 (below) details the process
for doing so.
Section 7. Judicial Review of FISA Orders and NSL
Nondisclosure Orders.
This section allows the recipient of a section 215 order
for tangible things to challenge the order itself and any
nondisclosure order associated with it. Current law requires
a recipient to wait a year before challenging a nondisclosure
order. This section repeals that one-year mandated delay
before a recipient of an order for tangible things can
challenge such a nondisclosure order in court. It also
repeals a provision added to the law in 2006 stating that a
conclusive presumption in favor of the Government shall apply
where a high level official certifies that disclosure of the
order for tangible things would endanger national security or
interfere with diplomatic relations.
This section also corrects the constitutional defects in
the issuance of nondisclosure orders on NSLs as found by the
Second Circuit Court of Appeals in Doe v. Mukasey, 549 F.3d
861 (2d Cir. 2008), and adopts the concepts suggested by that
court for a constitutionally sound process. Id. at 883-84.
The bill allows the recipient of an NSL with a nondisclosure
order to notify the Government at any time that it wishes to
challenge the nondisclosure order. The Government then has 30
days to seek a court order in Federal district court to
compel compliance with the nondisclosure order. The court has
authority to set the terms of a nondisclosure order as
appropriate to the circumstances, but must afford substantial
weight to the Government's argument in favor of
nondisclosure.
According to current Department of Justice policy, all NSLs
must include a notice that informs recipients of the
opportunity to contest the nondisclosure requirement through
the Government-initiated judicial review. This section states
that the government's application for an NSL nondisclosure
order may be filed either in the district within which the
authorized investigation is conducted or in the jurisdiction
where the recipient's business is located. This option will
ease the burden on the recipient in challenging the
nondisclosure order.
This section requires the Government to notify any entity
that challenges a nondisclosure order when the need for
nondisclosure is terminated. The Department of Justice agreed
to implement this measure administratively in December 2010;
therefore, this section will codify current practice.
The bill also requires FISA court approval of minimization
procedures in relation to the issuance of a section 215 order
for production of tangible things, similar to the
[[Page S3252]]
court approval required for other FISA authorities such as
wiretaps, physical searches, and pen register and trap and
trace devices.
Section 8. Certification for Access to Telephone Toll and
Transactional Records.
This section codifies current FBI practice in issuing an
NSL, and augments oversight and transparency. Current law
requires only that an official certify that the information
requested in the NSL is relevant to, or sought for, an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, or for a
law enforcement investigation, counterintelligence inquiry,
or security determination. This section adds a requirement
that the FBI retain a written statement of specific facts
showing that there are reasonable grounds to believe that the
information sought is relevant to such an authorized
investigation. This statement of specific facts will not be
included in the NSL itself, but will be available for
internal review and Office of Inspector General audits. The
Department of Justice has stated that it is current policy
for the FBI to retain a statement of specific facts showing
the information sought through NSLs is relevant to an
authorized investigation.
Section 9. Public Reporting on National Security Letters.
This section requires reporting of aggregate numbers based
upon the total number of all NSLs issued each year, as
opposed to by individual NSL. This section ensures that the
FBI can keep an accurate record of the information it must
disclose by allowing it to report both on persons who are the
subject of an authorized national security investigation, and
on individuals who have been in contact with or otherwise
directly linked to the subject of an authorized national
security investigation.
Section 10. Public Reporting on the Foreign Intelligence
Surveillance Act.
This section requires that the Government produce an annual
unclassified report on how the authorities under FISA are
used, including their impact on the privacy of United States
persons. This report shall be easily accessible on the
Internet.
Section 11. Audits.
This section requires the DOJ Office of Inspector General
to conduct audits of the use of three surveillance tools: 1)
orders for tangible things under section 215 of the 2001
Patriot Act, or section 501 of FISA; 2) pen registers and
trap and trace devices under section 402 of FISA; and 3) the
use of NSLs. The audits will cover the years 2007 through
2013. The scope of such audits includes a comprehensive
analysis of the effectiveness and use of the investigative
authorities provided to the Government, including any
improper or illegal use of such authorities. This section
also requires the Inspectors General of the Intelligence
Community to submit separate reports that also review these
three provisions. The audits covering the years 2007-2009
must be completed by March 31, 2012. The audits for the years
2010-2011 must be completed by March, 31, 2013. The audits
for the years 2012-2013 must be completed by March, 31, 2015.
These due dates ensure that Congress will have time to fully
consider the findings of the audits prior to the June 1, 2015
sunsets in the underlying bill.
Section 12. Delayed Notice Search Warrants.
Current law requires notification of a delayed notice
search warrant within 30 days. This section requires
notification of a delayed notice search warrant within seven
days, or a longer period if justified.
Section 13. NSL Procedures.
Current law does not require minimization procedures be
established, but on October 1, 2010, the Attorney General
adopted procedures concerning the collection, use, and
storage of information obtained in response to NSLs. This
section requires that the Attorney General periodically
review, and revise as necessary, those procedures, and to
give due consideration to the privacy interests of
individuals and the need to protect national security. If the
Attorney General makes any significant changes to these NSL
procedures, the Attorney General is required under this
section to notify Congress, and to submit a copy of the
changes.
Section 14. Severability.
This section includes a severability clause that will
ensure that in the event any part of the bill or any
amendment to the bill is found to be unconstitutional the
remainder of the bill will not be affected.
Section 15. Offset.
This section includes a $9,000,000 offset from the
Department of Justice Assets Forfeiture Fund for any direct
spending that could be incurred by the provisions of the
bill.
Section 16. Electronic Surveillance.
This section is intended to amend the FISA wiretap statute
(50 U.S.C. 1805(c)(1)(A)) so as to require law enforcement to
identify ``with particularity'' the target of a wiretap
request under FISA. The Department of Justice has testified
that, in applications to the FISA court for ``roving''
wiretaps, it must provide the court sufficient detail to
identify the target with particularity.
Section 17. Effective Date.
This section includes an effective date of 120 days from
the date of enactment for the statutory revisions made by
this legislation to take effect. This period of time will
provide the Government an appropriate amount of time to
implement the new procedures required by the legislation.
Mr. LEAHY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Mr. President, I am going to speak a little bit about the
PATRIOT Act, and then do I have to have consent to do anything else
other than that?
The PRESIDING OFFICER. Yes.
Mrs. BOXER. OK. I ask unanimous consent that I be able to speak about
two issues.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. I just want to acknowledge the hard work of the chairman
of the Intelligence Committee and the chairman of the Judiciary
Committee on the PATRIOT Act and to state I am on an amendment Senator
Leahy has authored which has bipartisan support. I think Senator
Leahy's amendment puts a couple of checks and balances in this bill
that I think are essential. But I hope we do not have delays because
delays would cause trouble for law enforcement people and for the work
we are doing to make sure we continue making progress against those who
would harm this country.
I fully agree with the statements we have the balance of security and
liberty, and I think the Leahy amendment goes a long way toward that.
But, again, we need to give law enforcement the tools they need.
[...]
Mr. UDALL of Colorado. Mr. President, I rise today to speak in
opposition to the proposed reauthorization of the expiring provisions
of the PATRIOT Act incorporated in S. 1038. I have to tell you, I find
reauthorization especially troubling since we have waited until the
last minute and are now being told we must rush this bill through the
Senate of the United States.
There are a number of PATRIOT Act provisions that are permanent, and
they remain in place to give our intelligence community important tools
to fight terrorism. But there are three controversial provisions we are
debating, commonly known as roving wiretap, lone wolf, and business
records. I have to tell you, at least from my point of view--and I
think there are other Senators here who agree with me--they are ripe
for abuse, and they threaten Americans' constitutional freedoms.
As I start my remarks at the onset, I want to state that I firmly
believe, as we all do, that terrorism is a serious threat to our great
country, the United States, and we have to be focused like no other
time in our history in seeking to protect our people, the American
people.
I sit on the Senate Armed Services Committee and the Senate
Intelligence Committee. On those two committees, much of my attention
is centered on keeping Americans safe, both here and abroad. I
recognize that despite bin Laden's death--which we all celebrate
because justice was delivered--we still live in a world where terrorism
is a serious threat to our country, our economy, and to American lives.
Our government does need the appropriate surveillance and
antiterrorism tools to achieve these important goals--indeed, many of
the PATRIOT Act's provisions which I support and have made our Nation
safer since those devastating attacks on that day we will always
remember, on 9/11, we know that for a fact. But the problem we confront
today is there are three provisions we are debating that fail to strike
the right balance between keeping us safe, while protecting the privacy
rights of Coloradans and all Americans.
Instead, these three provisions are far too susceptible to abuse by
the Federal Government, even in the name of keeping us safe from
terrorism. I do not say this lightly, but my concerns about some of
these provisions have only grown since I have been briefed on their
interpretation and their implementation as a member of the Intelligence
Committee.
[[Page S3258]]
Let me share some examples. Currently, the intelligence community can
place wide-ranging wiretaps on Americans without even identifying the
target or the location of such surveillance. That is one concern.
Second concern. The intelligence community can target individuals who
have no connection to terrorist organizations. A third concern I have
is they can collect business records on law-abiding Americans who have
no connection to terrorism. We ought to be able to at least agree that
the source of an investigation under the PATRIOT Act should have a
terrorist-related focus. If we cannot limit investigations to
terrorism, my concern is, where do they end? Is there no amount of
information our government can collect that should be off-limits? I
know Coloradans are demanding that we at least place commonsense limits
on government investigations and link data collection to terrorist-
related activities.
If we pass this bill to extend the PATRIOT Act until 2015, it would
mean that for 4 more years the Federal Government will continue to have
unrestrained access to private information about Americans who have no
connection to terrorism, with little to no accountability as to how
these powers are used.
Again, I wish to go back because we all agree the intelligence
community needs effective tools to combat terrorism. But we must
provide those tools in a way that protects the constitutional freedoms
of our people and lives up to the standard of transparency democracy
demands.
The three controversial provisions I have mentioned can be much
better balanced to protect our people. Yet it seems to me that many of
my colleagues, many of our colleagues, oppose any changes. By making
the PATRIOT Act provisions I have outlined permanent, we would be, in
effect, preventing debate on them ever again.
To travel that path would be to threaten constitutional and civil
liberties we hold dear in this country. That is not the right path. Let
me be clear. I do not oppose the reauthorization of these three
provisions of the PATRIOT Act, but I do aim to bring forward some
commonsense reforms that will allow us to strike an important balance
between keeping our Nation safe, on the one hand, while also protecting
privacy and civil liberties.
Toward that goal, I have worked side by side with my colleagues in
coming up with commonsense fixes that could receive bipartisan support.
Senator Wyden from Oregon has filed an amendment, which I have
cosponsored, that would require the Department of Justice disclose to
Congress the official legal interpretation of the provisions of the
PATRIOT Act. While I believe our intelligence practices should be kept
secret, I do not believe the government's official interpretation of
these laws should be kept secret.
I have also filed my own amendments to address some of the problems I
see with the three expiring provisions. The first amendment I have
filed is bipartisan with Senator Paul of Kentucky, who is on the floor,
and Senator Wyden, who has joined as well. Our amendment would modify
the roving wiretap authority under section 206 of the PATRIOT Act.
Specifically, our bipartisan amendment would require intelligence
agencies to identify either the target or the place to be wiretapped.
They currently do not have to do so. I believe that when seeking to
collect intelligence, law enforcement should at least have to identify
who is being targeted.
I have also filed an amendment to address the so-called ``lone wolf''
provision which currently allows the government to conduct wiretap
surveillance on individuals, even when that person has no connection to
a government or a terrorist organization.
This amendment would simply require that should the intelligence
community use the ``lone wolf'' provision, that Congress simply be
notified--again, a safeguard that is not in place as we stand here
today. Without safeguards like that, how do we in this body conduct our
constitutional duties of oversight?
Finally, I was joined by Senator Wyden in filing an amendment
designed to narrow the scope of business record materials that can be
collected under section 215 of the PATRIOT Act. This amendment would
still allow law enforcement to use the PATRIOT Act to obtain such
records but would require these entities to demonstrate that the
records are in some way connected to terrorism or clandestine
intelligence activities.
Right now, law enforcement can currently obtain any kind of records.
In fact, the PATRIOT Act's only limitation states that such information
has to be related to any tangible thing. That is right. As long as
these business records are related to any tangible thing, the U.S.
Government can require businesses to turn over information on all their
customers, whether or not there is any link to terrorism.
Mr. WYDEN. Would my colleague yield for a question?
Mr. UDALL of Colorado. Yes.
Mr. WYDEN. It seems to me the Senator has laid out the case for why
there needs to be a thoughtful debate about the PATRIOT Act and what is
necessary to strike the key balance between fighting terrorism
ferociously and protecting our liberties.
I am interested in what my colleague thinks about the proposition of
how you have a thoughtful debate on these issues, when there is secret
law where, in effect, the interpretation of the law, as it stands
today, is kept secret. So here we are, Senators on the floor, and we
have colleagues of both political parties wanting to participate.
Certainly, if you are an American, you are in Oregon or Colorado, you
are listening in, you want to be part of this discussion. But yet the
executive branch keeps secret how they are interpreting the law.
What is the Senator's sense about how we have a thoughtful debate if
that continues?
Mr. UDALL of Colorado. The Senator from Oregon has put his finger on
why it is so important to have a debate on the floor and not rush these
provisions to the House because of a deadline that I think we can push
back. We can, as you know, extend the PATRIOT Act in its present form a
number of other days or a number of weeks in order to get this right.
But the Senator from Oregon makes the powerful point that the law
should not be classified--as far as its interpretation goes. Of course,
we can protect sources and methods and operations, as we well should.
Both of us serve on the Intelligence Committee. We are privy to some
information that should be classified. But we have come to the floor to
make this case because of what we have learned on the Intelligence
Committee.
Mr. WYDEN. Well said.
Mr. UDALL of Colorado. I thank the Senator for his question. I look
forward to his comments in a few minutes. The Senator from Oregon, in
effect, points out that these are just a few of the reform ideas we
could debate. But without further debate on any of these issues, this
or any other administration can abuse the PATRIOT Act and could
actually deny us, as Members of Congress, whether in this Congress or
future Congresses, the opportunity to fulfill our oversight
responsibilities on behalf of the American people.
I voted against the original passage of the PATRIOT Act in 2001, and
I plan to vote against the reauthorization of the expiring provisions
this week, unless we implement some reforms that will sensibly restrain
these overly broad provisions. Simply put--again, to make the point
that the Senator from Oregon made so importantly--I believe Congress is
granting powers to the executive branch that lead to abuse and,
frankly, shield the executive branch from accountability.
It has been 10 years since we first passed this law, and there has
been very little opportunity to improve the law. I resist this rush to
again rubberstamp policies that threaten the very liberty we hold dear.
I recently supported a short-term extensions of the expiring provisions
before us as a bridge to take time and debate and amend the PATRIOT Act
and its controversial provisions.
But we were notified--unfortunately, a few days ago--that we would be
voting on a 4-year extension of these expiring provisions. That is not
the way to assure Americans that we are diligently considering these
important public decisions.
In Federalist 51, James Madison, whom we venerate, who was the author
of many of the documents that structure the way in which we organize
and operate our democracy, wrote: ``In
[[Page S3259]]
framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control
itself.''
The bill before us does not live up to that standard. I believe it
seriously risks the constitutional freedoms of our people. We need to
strike a better balance between giving our national security and law
enforcement officials the tools necessary to keep us safe, while not
damaging the very Constitution we have sworn to support and defend.
By passing an unamended reauthorization, we are assuring that
Americans will live with the status quo for 4 more long years. I
believe this bill may well be a lost opportunity to improve the balance
between our security and our civil liberties. That is not the result
that our Founding Fathers envisioned, and it is not a result that our
constituents want.
For these reasons, if the PATRIOT Act provisions are not amended, I
plan to vote no on the motion to invoke cloture and on passage of S.
1038. Before I yield the floor, I wish to make one last historical
reference.
Ben Franklin, one of our Founding Fathers, said, compellingly and
presciently: ``A society that would sacrifice essential liberties for
short-term security deserves neither.''
I think that is the question before us. There is a way forward. There
is a way to keep the PATRIOT Act in place to protect our national
security but also to protect our essential liberties. But in order to
do that, we have to have a chance to debate and pass these important
amendments.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, before my colleague leaves the Chamber, I
wished to tell him what a welcome addition he has been to the
Intelligence Committee. I have served on that committee for 10 years.
We have had excellent chairs--first, Senator Roberts, then Senator
Rockefeller, Senator Feinstein.
So we continue to try to look for bipartisan support for trying to
strike that balance between collective security and individual liberty.
I am struck both by the clarity of your statement and the fact that
those who are going to vote on these amendments and the American people
who are listening in tonight ought to be able to get, in a
straightforward, easy-to-access fashion, how the executive branch is
currently interpreting the PATRIOT Act.
The fact is, law professors give assignments to their students to
write analyses of the PATRIOT Act. The Congressional Research Service
actually has an analysis out. But it is not possible to get the
official interpretation of how the U.S. Government frames this law as
far as the operations are so essential for our country. The Senator has
laid it out very well. It is a pleasure to serve with him on the
Intelligence Committee.
Mr. President, let me sum up with what this issue has come down to,
to me.
These are dangerous times. If you go into the Intelligence Committee
several times a week, as Senator Udall and I do, you come away with the
indisputable judgment that there are threats to the well-being of this
country, that there are people who do not wish our citizens well. In
these dangerous times, the sources and methods of our antiterror
operations absolutely must be kept secret. That is fundamental to the
work of the intelligence community--keeping the sources and methods of
those who serve us so gallantly secret and ensuring that they are as
safe as possible.
But while we protect those sources and methods, the laws that
authorize them should not be kept secret from the American people. That
is what this is all about--whether the laws that authorize the
operations that are so essential, which have been passed by the
Congress--that their interpretation should be kept secret from the
American people. I call it ``secret law.'' I want to say to this body,
yes, we need secret operations, but secret law is bad for our
democracy. It will undermine the confidence the American people have in
our intelligence operations.
You might recall that it was only a few years ago, during the Bush
administration, that they secretly reinterpreted the warrantless
wiretapping statutes to say that it was possible to wiretap our people
without a warrant. When it came out, it took years to sort that out,
with the executive branch and the Congress working together. I don't
want to see that happen again. So that is why I have joined Senator
Udall in these amendments, and we hope we can get bipartisan support
for what we are trying to do and especially ensure that the official
interpretation of the PATRIOT Act, an important intelligent statute, is
made public to the American people, and I think it can be done in a way
without jeopardizing our sources and methods.
One of the reasons Senator Udall, I, and others feel so strongly
about this is--and Senator Udall touched on this--that this is a time
when Congress should finally say we are not just going to keep kicking
the can down the road. That is what has been done again and again over
the last decade. The PATRIOT Act was passed a decade ago, during a
period of understandable fear, having suffered in our Nation the
greatest terrorist attack in our history. So the PATRIOT Act was born
out of those great fears.
It seems to me that now is the time to revisit that and ensure that a
better job is done of striking the balance between fighting terror and
protecting individual liberty. Unfortunately, every time over the last
decade there has been an effort to do just that--revisit this and
strike a better balance--we have had the same pattern; we have said we
just have to get it done quickly and we really don't have any time to
consider, for example, the thoughtful ideas Senator Udall has
mentioned. I just don't think it is time now to once again put off a
real debate on the PATRIOT Act for yet another always-distant day.
There is an irony about what this is all about, and that is that
Senators are going to want to consider the amendments of Senator
Udall--and I believe Senator Paul is here, and others who care strongly
about this. It is awfully hard to have a thoughtful debate on these
specific amendments, whether it is the Leahy amendment, the Paul
amendment, the Udall amendment, or the ones we have together, if, in
fact, you cannot figure out how the executive branch is interpreting
the law.
An open and informed debate on the PATRIOT Act requires that we get
beyond the fact that the executive branch relies on the secret legal
interpretations to support their work, and Members of the Senate try to
figure out what those interpretations are.
Here are the rules. If a U.S. Senator wants to go to the Intelligence
Committee--and I think Senator Udall touched on this--the Senator can
go there and get a briefing. Many Members of Congress, however, don't
have staff members who are cleared for those kinds of briefings. Under
Senate rules, it is not possible for Senators to come down here and
discuss what they may have picked up in one of those classified
briefings.
I just don't think, with respect to the legal interpretation, that is
what the American people believe we ought to be doing. The American
people want secret operations protected. They understand what sources
and methods are all about and that we have to have secrecy, for
example, for those in the intelligence community to get the information
we need about sleeper cells and terrorist groups and threats we learn
about in the Intelligence Committee. But that is very different from
keeping these legal interpretations secret.
In my view, the current situation is simply unacceptable. The
American people recognize that their government can better protect
national security if it sometimes is allowed to operate in secrecy.
They certainly don't expect the executive branch to publish every
detail about how intelligence is collected. Certainly, Americans never
expected George Washington to tell them about his plans for observing
troop movement at Yorktown. But Americans have always expected their
government to operate within the boundaries of publicly understood law.
As voters, they certainly have a right to know how the law is being
interpreted so that the American people can ratify or reject decisions
made on their behalf. To put it another way, Americans know their
government will sometimes conduct secret operations, but they
[[Page S3260]]
don't believe the government ought to be writing secret law.
The reason we have felt so strongly about this issue of secret law is
that it violates the trust Americans place in their government and it
undermines public confidence in government agencies and institutions,
making it harder to operate effectively. I was on the Intelligence
Committee, before Senator Udall joined us, when Americans were pretty
much stunned to learn the Bush administration had been secretly
claiming for years that warrantless wiretapping was legal. My own view
was that disclosure significantly undermined the public trust in the
Department of Justice and our national intelligence agencies. Our
phones were ringing off the hook for days when the American people
learned about it. The Congress and executive branch had to retrench and
figure out how to sort it out.
I certainly believe the public will be surprised again when they
learn about some of the interpretations of the PATRIOT Act. Government
officials cannot hope to indefinitely prevent the American people from
learning the truth. This is going to come out, colleagues. It is going
to come out at some point, just as it came out during the Bush
administration about warrantless wiretapping. It is going to come out.
It is not going to be helpful to the kind of dialog we want to have
with the American people, an open and honest dialog, to just continue
this practice of secret law.
The reason I am offering or seeking to offer this amendment with
Senator Udall, Senator Merkley, and other colleagues with respect to
changing the practice of secret law is that we have raised this issue
numerous times--on the Senate floor, in correspondence, in meetings
with senior administration officials--and I have been joined in the
past by other Senators, and we talked about it with respect to the
problem in the news media. But the problem persists and the gap between
the public's understanding of the PATRIOT Act and the government's
secret interpretation of it remains today. Once information has been
labeled ``secret,'' there is a strong bureaucratic tendency--it almost
gets in the bureaucratic chromosomes to keep it secret and not revisit
the original decision.
So what Senator Udall and I and colleagues seek to do is correct this
problem. We seek to offer an amendment that states that it is entirely
appropriate for particular intelligence collection techniques to be
kept secret but that the laws that authorize these techniques should
not be kept secret and should instead be transparent to the public. We
seek to offer an amendment that states that U.S. Government officials
should not secretly reinterpret public laws and statutes in a manner
that is inconsistent with the public's understanding of these laws or
describe the execution of these laws in a way that misinforms or
misleads the public.
So under this proposal, the Attorney General and Director of National
Intelligence would--and we note this--provide a classified report to
the congressional intelligence committees. It makes it clear that
intelligence collection continues to go forward, and our amendment
would simply require the Attorney General to publicly lay out the legal
basis for the intelligence activities described in the report. The
amendment specifically directs the Attorney General not to describe
specific collection, programs, or activities, but simply to fully
describe the legal interpretations and analyses necessary to understand
the government's official interpretation of the law.
Let me close--I see colleagues waiting to speak--and say that we can
have honest and legitimate disagreements about exactly how broad
intelligence collection authorities ought to be, and members of the
public do not expect to know all of the details about how those
authorities are used, but I hope each Senator would agree that the law
itself should not be kept secret and that the government should always
be open and honest with the American people about what the law means.
All that Senator Udall and I seek to do, along with other colleagues,
is to restore some of that openness and honesty in an area where it is
now needed. I hope colleagues on the floor of the Senate and in the
Obama administration will join in that effort.
Mr. PRYOR. Mr. President, I want to briefly comment on yesterday's
cloture vote on the motion to proceed to S.1038, the extension of the
amendments to the Foreign Intelligence Surveillance Act.
Unfortunately, yesterday I was attending the funeral of a very close
family friend who passed away on Friday. However, I wish to express my
support for the motion to proceed and the extensions themselves. I
believe these extensions, section 6001 (a) of the Intelligence Reform
and Terrorism Prevention Act, and sections 206 and 215 of the USA
PATRIOT Act, continue to provide the right balance between safety and
individual rights.
I understand those with concerns about the breadth and scope of this
law and believe it is important to continue to ask these questions and
examine the limits and extent of these amendments as well as other
aspects of the law.
In the wake of bin Laden's recent killing, the importance and
significance of our intelligence resources are without question. Our
intelligence community must have the necessary tools at its disposal to
protect us from the threat of terrorism. This legislation helps clarify
what is legal and proper, and I believe strikes a balance between
prioritizing our safety without trampling individual rights.
Mr. BROWN of Ohio. Mr. President, yesterday the Senate conducted a
procedural vote on whether it would begin deliberation on S. 1038, the
PATRIOT Sunsets Extension Act of 2011.
Due to inclement weather, my flight from Cleveland returned to
Cleveland, and I was unable to make this vote. However, if I had been
in attendance, I would have voted ``yea.''
I have long expressed concerns about the PATRIOT Act, specifically
about its scope and effectiveness. For too long, Americans have been
asked to cede their constitutional rights in the name of national
security. There is no question that our law enforcement authorities
need the tools to fight terrorism and keep Americans safe, but security
is not a zero sum game. Indeed, it is certainly possible to extend the
PATRIOT Act while building in some additional checks and balances. But
this extension does not include them.
Despite my misgivings about this extension, I believe that it is
important that the Senate directly address this legislation that is
important to both our Nation's security and well as our civil
liberties.
Mr. WHITEHOUSE. Mr. President, on May 23, 2011, due to my daughter's
college graduation, I was absent for vote No. 75, a motion to invoke
cloture on the motion to proceed to S. 1038, the USA PATRIOT Sunset
Extension Act of 2011. Had I been present, I would have voted ``yea.''
Mr. BROWN of Massachusetts. Mr. President, on May 23 the Senate voted
on a motion to invoke cloture on the motion to proceed to the USA
PATRIOT Act Sunset Extension Act of 2011, S. 193. I was necessarily
absent for this vote. Had I been able to vote, I would have voted
``aye.'' The act will extend sections 206 and 215 of the Patriot Act
and section 6001 of the Intelligence Reform and Terrorism Prevention
Act, IRTPA, for 4 more years before they expire on May 27. The PATRIOT
Act, with these provisions, has provided vital tools and resources to
our counterterrorism professionals that have enabled them to disrupt
dozens of active terrorist plots. By empowering our counterterrorism
professionals to do their jobs, we can continue to disrupt and prevent
terrorist attacks in the homeland and abroad. I voted for the 90-day
extension of these three provisions in February and I look forward to
voting on final passage of the long-term extension this week.
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.
Mr. MORAN. 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. REID. Mr. President, we have been working for several days--I
have been working on it for a lot longer than several days--but for
several days publicly on a process to move forward with the PATRIOT
Act. We have worked over the last several days to work something out
that is an excellent compromise. Is this bill something everybody in
the Senate likes or everybody in the House likes? The answer is no. But
we all know how important it is that we continue this legislation. So
Senator McConnell and I and Speaker Boehner have agreed on a way to
move forward.
The alternative is to have a long long-term extension that the House
would send us and I don't think that would be to anyone's benefit, so
we are moving forward. I have tried to do it with the bill that we
invoked cloture on yesterday. I have had many conversations with
Senator Paul and others, but principally him, and tried to come up with
a process to allow Senator Paul to offer amendments--and others to
offer amendments; it is not just him. I have been unsuccessful.
I understand Senator Paul's exasperation because this is something
that is extremely important to him and there was every desire, from my
perspective and I think that of this body, to have a full and complete
debate on the PATRIOT Act. But the Senate does not always work that
way.
There have been a lot of things that have gotten in the way and the
time is suddenly upon us. We have to complete this legislation by
midnight on Thursday. We cannot let the PATRIOT Act expire. I have a
responsibility to try to get this bill done as soon as possible, in
spite of the fact that some of my Senators and some Republican Senators
would rather I did it some other way at some other time. But I can't do
that. I have to get this done.
We know, since bin Laden was killed, that there has been a lot of
information discovered from him about what he did. One thing that is
very clear is that he had instructed all of his lieutenants to focus
all of their attention on the United States and its assets. So we
cannot let this expire and I am going to do everything I can to make
sure this does not happen.
Senator Paul and I have tried to work out something. He feels
strongly about at least three of his amendments. I say, even though he
and I disagree on a number of things politically, I have found in his
time here in the Senate, as it relates to me, he is a very pleasant man
with strong feelings. I have only the highest regard for him and I am
sorry I cannot make this system we have in the Senate more in keeping
with his desires to get things done. But as he will learn over the
years, it is always difficult to get what you want in the Senate. It
doesn't mean you won't get it, but sometimes you have to wait and get
it done at some subsequent time.
Senator Paul has been very upfront with me. He has never hidden a
punch.
[[Page S3262]]
He said: I feel strongly about a number of these amendments and I am
not going to agree to let this go forward unless I have these
amendments, and he has been very reasonable. He has brought his number
down from 11 to 3 or 4 and I appreciate that. But the time has come for
me to take some action.
Again, I repeat, I do not have the luxury of waiting for a better
time. However, I would like to be able to allow the Senator from
Kentucky to give a few of his stem-winding speeches. He does a very
good job presenting himself. But in order to expedite what I think is
so important to continue the country's intelligence operations, I am
going to move to table the pending motion to proceed to S. 1038.
Following that vote, I am going to ask the Senate to proceed to a
message received from the House earlier today. I will then move to
concur with the amendment which will be the extension of the PATRIOT
Act and I will file cloture on that motion.
Mr. President, I move to table and I ask for the yeas and nays.
The PRESIDING OFFICER. The question is on agreeing to the motion.
Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. PAUL (when his name was called). Present.
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Carper),
the Senator from California (Mrs. Feinstein), the Senator from North
Carolina (Mrs. Hagan), the Senator from South Dakota (Mr. Johnson), the
Senator from Louisiana (Mrs. Landrieu), the Senator from Vermont (Mr.
Leahy), the Senator from Connecticut (Mr. Lieberman), the Senator from
Missouri (Mrs. McCaskill), and the Senator from New York (Mr. Schumer)
are necessarily absent.
I further announce that, if present and voting, the Senator from
Vermont (Mr. Leahy) would vote ``nay.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from Missouri (Mr. Blunt), the Senator from Texas (Mrs. Hutchison), and
the Senator from Kansas (Mr. Roberts).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 74, nays 13, as follows:
[Rollcall Vote No. 76 Leg.]
YEAS--74
Akaka
Alexander
Ayotte
Barrasso
Baucus
Bennet
Blumenthal
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cardin
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Franken
Gillibrand
Graham
Grassley
Harkin
Hatch
Hoeven
Inhofe
Inouye
Isakson
Johanns
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Lautenberg
Levin
Lugar
Manchin
McCain
McConnell
Menendez
Mikulski
Moran
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Rockefeller
Rubio
Sessions
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Warner
Webb
Whitehouse
Wicker
NAYS--13
Begich
Bingaman
Cantwell
Heller
Lee
Merkley
Murkowski
Sanders
Shaheen
Tester
Udall (CO)
Udall (NM)
Wyden
ANSWERED ``PRESENT''--1
Paul
NOT VOTING--12
Blunt
Carper
Feinstein
Hagan
Hutchison
Johnson (SD)
Landrieu
Leahy
Lieberman
McCaskill
Roberts
Schumer
The motion was agreed to.
The PRESIDING OFFICER. The majority leader is recognized.
____________________
[Congressional Record: May 24, 2011 (Senate)]
[Page S3263-S3265]
PATRIOT SUNSETS EXTENSION ACT
Mr. MERKLEY. Mr. President, I rise to address the 4-year extension of
the PATRIOT Act and to oppose that extension if the bill is not
modified.
I want to take us back to the principles on which our Nation was
founded and, indeed, before our Declaration of Independence and before
our Constitution when there was a deep tradition of the right of
privacy. Let's take William Pitt's declaration in 1763. He said:
The poorest may, in his cottage, bid his defiance to all
the forces of the Crown . . . the storm may enter; the rain
may enter. . . . But the King of England may not enter.
It is the philosophy embedded in William Pitt's declaration of the
sanctity of a man's home that underwrote the principle of the fourth
amendment. That reads as follows:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The fourth amendment is powerful protection of personal privacy from
the overreach of government. How does that compare in contrast to the
PATRIOT Act that is before us?
Let me tell you the standard that is in the PATRIOT Act for the
government to seize your papers, to search your papers, and that
standard is simply ``relevant'' to an ``investigation.'' Relevant to an
investigation? That is the legal standard set out in the PATRIOT Act.
That is a standard that was written to be as broad and low as possible.
What does it mean to be ``relevant'' to an investigation? It certainly
isn't something as strong as probable cause, which is in the fourth
amendment. It certainly isn't describing the place to be searched, the
persons and things to be seized. Indeed, the word ``relevant'' doesn't
have a foundation of legal tradition that provides any boundaries at
all.
Let's take the term ``investigation.'' ``Investigation'' is in the
eye of the beholder. I want to look into something, so that is an
investigation. What happens to these words in the PATRIOT Act, in the
section of the PATRIOT Act that addresses the sweeping powers to
investigate Americans down to the books they check out, their medical
records, and their private communications? Quite simply, there is a
process in theory in which a court, known as the FISA Court, makes a
determination, but they make the determination upon this standard--that
this standard is ``relevant to an investigation.''
Now, the interpretation of that clause is done in secret. I would
defy you to show me a circumstance where a secret interpretation of a
very minimal standard is tightened in that secret process. But we don't
know because we are not being told.
This is why I support Senator Wyden's amendment. Senator Wyden has
said we should not have secret law--secret interpretation of clauses
that may result in the opposite of what we believe is being done. That
is a very important amendment. But that amendment will not be debated
on the floor of the Senate. It won't be debated because a very clever
mechanism has just been put into play to prevent amendments from being
offered and debated on the floor of the Senate on the 4-year extension
of the PATRIOT Act. Quite frankly, I am very disturbed by that
mechanism--a parliamentary move in which a House message is brought
over and the regular bill is tabled, and that message will then have
the regular PATRIOT Act put into it as a privileged motion, and it will
be returned to the House. The effect therein is, because the tree has
been filled, which is parliamentary-speak for ``no amendments will be
allowed,'' we won't get to debate Senator Wyden's amendment.
There are a number of Senators who have proposed to change this
standard--the standard ``relevant to an investigation''--to make it a
legally significant standard and make sure it is not being secretly
interpreted to mean almost nothing. But we won't have a
[[Page S3264]]
debate in this Senate over changing that low and insignificant standard
into a meaningful legal standard with teeth in it, that has court cases
behind what it means and interpretations that will protect us.
There is no question that every Member of this Chamber has an
enormous sense of responsibility in the security of our Nation. In that
sense, there is significant feeling on every person's part that we need
to enable our intelligence services, our military, to do the necessary
work to protect our Nation. But that does not mean we should avoid
having a debate about whether the PATRIOT Act, as written today,
without an amendment, rolls over the top of the fourth amendment of the
Constitution of the United States of America.
We can have both personal privacy and a high standard, as set out in
the fourth amendment, for the seizure of papers and security. Those two
things are not at war with each other. We have had two centuries in
this Nation of embracing the twins of personal privacy and security. We
have made that work. We can continue to make it work.
I rise in protest about the process unfolding in the Senate in which
amendments will not be presented and will not be debated. I rise to say
the fourth amendment matters; that it sets a significant standard
against unreasonable seizures and searches, and that the PATRIOT Act,
as written, does not provide a clear implementation of the fourth
amendment, a clear protection of the fourth amendment.
I will close by noting it has been nearly 250 years since William
Pitt declared:
The poorest may, in his cottage, bid his defiance to all
the forces of the Crown . . . the storm may enter; the rain
may enter . . . but the King of England may not enter.
Let us have a debate in this Chamber about modifications that protect
our security but that hold faith with the principle William Pitt
enunciated and with the principles we have adopted in the fourth
amendment to the Constitution; that the right of the people against
unreasonable searches and seizures shall not be violated.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so
ordered.
