[Congressional Record: May 26, 2011 (Senate)]
[Page S3372-S3402]                       

     [Senate Debate on PATRIOT Act Extension]

  The PRESIDING OFFICER (Mr. Sanders). The Senator from Oregon.
  Mr. WYDEN. Mr. President, the Senate is preparing to pass another 4-
year extension of the USA PATRIOT Act. I have served on the 
Intelligence Committee for over a decade and I wish to deliver a 
warning this afternoon. When the American people find out how their 
government has secretly interpreted the PATRIOT Act, they are going to 
be stunned and they are going to be angry. They are going to ask 
Senators: Did you know what this law actually permits? Why didn't you 
know before you voted on it? The fact is anyone can read the plain text 
of the PATRIOT Act. Yet many Members of Congress have no idea how the 
law is being secretly interpreted by the executive branch because that 
interpretation is classified. It is almost as if there are two PATRIOT 
Acts, and many Members of Congress have not read the one that matters.
  Our constituents, of course, are totally in the dark. Members of the 
public have no access to the secret legal interpretations, so they have 
no idea what their government believes the law actually means.
  I am going to bring up several historical examples to try to 
demonstrate what this has meant over the years. Before I begin, I wish 
to be clear I am not claiming any of the specific activities I discuss 
today are happening now. I am bringing them up because I believe they 
are a reminder of how the American people react when they learn about 
domestic surveillance activities that are not consistent with what they 
believe the law allows. When Americans learn about intelligence 
activities that are consistent with their understanding of the law, 
they look to the news media, they follow these activities with 
interest, and often admiration. But when people learn about 
intelligence activities that are outside the lines of what is generally 
thought to be the law, the reaction can get negative and get negative 
in a hurry.
  Here is my first example. The CIA was established by the National 
Security Act of 1947 and the law stated that the agency was ``forbidden 
to have law enforcement powers or internal security functions.'' 
Members of the Congress and legal experts interpreted that language as 
a clear prohibition against any internal security function under any 
circumstances. A group of CIA officials had a different interpretation. 
They decided that the 1947 law contained legal gray areas that allowed 
the CIA to monitor American citizens for possible contact with foreign 
agents. They believed this meant they could secretly tap Americans' 
phones, open their mail, and plant listening devices in their homes, 
among other

[[Page S3387]]

things. This secret legal interpretation led the CIA to maintain 
intelligence files on more than 10,000 American citizens, including 
reporters, Members of Congress, and a host of antiwar activists.
  This small group of CIA officials kept the program and their ``gray 
area'' justification to the program a secret from the American people 
and most of the government because, they argued, revealing it would 
violate the agency's responsibility to protect intelligence sources and 
methods from unauthorized disclosure. Did the program stay a secret? It 
didn't. On December 22, 1974, investigative reporter Seymour Hersh 
detailed the program on the front pages of the New York Times. The 
revelations and the huge public uproar that ensued led to the formation 
of the Church Committee. That committee spent nearly 2 years 
investigating questionable and illegal activity at the CIA. The Church 
Committee published 14 reports detailing various intelligence abuses 
which, in addition to illegal domestic surveillance, included programs 
designed to assassinate foreign leaders. The investigation led to 
Executive orders reining in the authority of the CIA and the creation 
of the House and Senate Intelligence Committees.
  In 1947, President Harry Truman and his top military and legal 
advisers secretly approved a program named PROJECT SHAMROCK. PROJECT 
SHAMROCK authorized the Armed Forces Security Agency and its successor, 
the NSA, to monitor telegraphs coming in and out of the United States. 
At the outset of the program, companies were told that government 
agents would only read ``those telegrams related to foreign 
intelligence targets,'' but as the program grew, more telegrams were 
sent and received by Americans and they were read. During the program's 
30-year run, the NSA analysts sometimes reviewed as many as 150,000 
telegrams a month.
  While the Ford administration said it made all pertinent information 
about PROJECT SHAMROCK available, the Senate Intelligence Committee and 
the Justice Department had kept the program secret from the public. 
They argued that public disclosure was both unjustified and dangerous 
to national security, and it avoided Congress's questions regarding the 
legality of the program by stating that the telegrams present somewhat 
different legal questions from those posed by domestic bugging and 
wiretapping. That program didn't stay secret either.
  The newly formed Senate Intelligence Committee ultimately disclosed 
the PROJECT SHAMROCK program on November 6, 1975, arguing that public 
disclosure was needed to build support--build support--for a law 
governing NSA operations. The resulting public uproar led to a 
congressional investigation. The NSA's termination of PROJECT SHAMROCK 
and the passage of the Foreign Intelligence Surveillance Act of 1978, 
which attempted to subject domestic surveillance to a process of 
warrants and judicial review.
  Years later, during the Reagan administration, senior members of the 
National Security Council secretly sold arms to Iran and used the funds 
to arm and train Contra militants to topple the Nicaraguan Government. 
Selling arms to Iran violated the official U.S. arms embargo against 
Iran and directly funding the Contras was illegal under the Boland 
amendment. That was the one Congress passed to limit U.S. Government 
assistance to the Contras.
  But the officials at the National Security Council were convinced 
they knew better. They were convinced that violating the embargo and 
illegally supporting the Contra rebels would help free American 
hostages and help fight communism in Nicaragua. Instead of engaging in 
a public debate and trying to convince the Congress and the public they 
were right, they secretly launched an arms program and hid it from the 
Congress and the American people. How did that work out for them?
  The New York Times published a story of these activities on November 
25, 1987. A joint congressional committee was launched to investigate 
the Iran Contra affair with televised hearings for over a month. The 
House Foreign Affairs Committee and the House and Senate Intelligence 
Committees held their own hearings. The first Presidential commission 
investigating the National Security Council was launched. Multiple 
reports were published documenting the administration's illegal 
activities, and the Nicaraguan Government sued the United States. 
Dozens of court cases were filed and National Security Council 
officials--including two National Security Advisers--faced multiple 
  Finally, following the terrorist attacks of September 11, 2001, a 
handful of government officials made the unilateral judgment that 
following U.S. surveillance law, as it was commonly understood, would 
slow down the government's ability to track suspected terrorists. 
Instead of working with the Congress, instead of coming to the Congress 
and asking to revise or update the law, these officials secretly 
reinterpreted the law to justify a warrantless wiretapping program that 
they hid from virtually every Member of the Congress and the American 
  It is not clear how long they thought they could hide a large, 
controversial national security program of this nature, but they kept 
it so secret that even when it yielded useful intelligence, 
classification restrictions sometimes prevented the information from 
being shared with officials who could have used it.
  I was a member of the Senate Intelligence Committee at this point--a 
relatively new member--but the program and the legal interpretations 
that supported it were kept secret from me and virtually all of my 
  Again, did that program stay secret? The answer is no. After several 
years, the New York Times published a story uncovering the program. The 
resulting public uproar led to a divisive congressional debate and a 
significant number of lawsuits. In my view, the disclosure also led to 
an erosion of public trust that made many private companies more 
reluctant to cooperate with government inquiries.
  As most of my colleagues will remember, Congress and the executive 
branch spent years trying to sort out the details of that particular 
program and the secret legal interpretation--the secret legal 
interpretation--that was used to justify it. In the process of doing 
so, Congress also attempted to address an actual surveillance issue. I 
think all my colleagues who were here for that debate would agree those 
issues could have been resolved far more easily, far less 
contentiously, if the Bush administration had simply come to the 
Congress in the first place and tried to work out a bipartisan solution 
to them rather than, in effect, trying to rewrite the law in secret.
  When laws are secretly reinterpreted this way, the results frequently 
fail to stand up to public scrutiny. It is not surprising, if you think 
about it. The American law-making process is often cumbersome, it is 
often frustrating, and it is certainly contentious. But over the long 
run, this process is a pretty good way to ensure that our laws have the 
support of the American people, since those that do not will actually 
get revised or repealed by elected lawmakers who follow the will of our 
constituents. On the other hand, when laws are secretly reinterpreted 
behind closed doors by a small number of government officials--and 
there is no public scrutiny, no public debate--you are certainly more 
likely to end up with interpretations of the law that go well beyond 
the boundaries of what the American people are willing to accept.
  Let me make clear that I think it is entirely legitimate for 
government agencies to keep some information secret. In a democratic 
society, of course, citizens rightly expect their government will not 
arbitrarily keep information from them, and throughout our Nation's 
history Americans have vigilantly guaranteed their right to know. But 
Americans do acknowledge certain limited exceptions to the principle of 
openness. We know, for example, that tax officials have information 
about all of us from our tax returns. But the government does not have 
the right or the need to share this information openly. This is 
essentially an exception to protect personal privacy.
  Another limited exception exists for the protection of national 
security. The U.S. Government has an inherent responsibility to protect 
our people from threats. To do this effectively, it almost always 
requires some measure of secrecy. I do not expect General Petraeus to 
publicly discuss the details of every troop movement in Afghanistan any 
more than early Americans

[[Page S3388]]

expected George Washington to publish his strategy for the Battle of 
Yorktown. By the same token, American citizens recognize that their 
government may sometimes rely on secret intelligence collection methods 
in order to ensure national security, in order to ensure the safety of 
the American people, and they recognize that these methods can often be 
more effective when specifics are kept secret.
  But while Americans recognize that government agencies sometimes rely 
on secret sources and methods to collect intelligence information, 
Americans also expect these agencies will cooperate at all times within 
the boundaries of publicly understood law.
  I have served on the Senate Intelligence Committee for a decade, and 
I do not take a backseat to anybody when it comes to protecting what 
are essential sources and methods that are needed to keep the American 
people safe when intelligence is being gathered. But I do not believe 
the law should ever be kept secret. Voters have a right and a need to 
know what the law says and what their government thinks the text of the 
law means. That is essential so the American people can decide whether 
the law is appropriately written and they are in a position to ratify 
or reject the decisions their elected officials make on their behalf.
  When it comes to most government functions, the public can directly 
observe the government's actions and the typical citizens can decide 
for themselves whether they support or agree with the things their 
government is doing. Certainly, in my part of the world, American 
citizens can visit the national forests and decide whether they think 
the forests are appropriately managed. When they drive on the 
interstate, they can decide for themselves whether those highways have 
been properly laid out and adequately maintained. If they see someone 
punished, they can decide for themselves whether the sentence was 
appropriate, whether it was too harsh or too lenient.
  But Americans generally cannot decide for themselves whether 
intelligence agencies are operating within the law. That is why the 
U.S. intelligence community evolved over the past several decades. The 
Congress set up a number of watchdog and oversight mechanisms to ensure 
that the intelligence agencies follow the law rather than violate it. 
That is why the Senate and House each have a Select Intelligence 
Committee. It is also why the Congress created the Foreign Intelligence 
Surveillance Court. It is why Congress created a number of statutory 
inspectors general to act as independent watchdogs inside the 
intelligence agencies themselves. All these oversight entities were 
created at least in part to ensure that intelligence agencies carry out 
all their activities within the boundaries of publicly understood law.
  But the law itself must always be public. Government officials must 
not be allowed to fall into the trap of secretly reinterpreting the law 
in a way that creates a gap between what the public believes the law 
says and what the government secretly claims it says. Anytime that 
happens, it seems to me there is going to be a violation of the public 
trust. Furthermore, allowing a gap of this nature to develop is simply 
shortsighted. Both history and logic should make it clear--and that is 
why I brought these examples to the floor of the Senate--that secret 
interpretations of the law will not stay secret forever and, in fact, 
often come to light pretty quickly. When the public eventually finds 
out that government agencies have been rewriting surveillance laws in 
secret, the result, as I have demonstrated, is invariably a backlash 
and an erosion of public confidence in these government agencies.
  I believe this is a big and growing problem.
  Our intelligence and national security agencies are staffed by many 
talented and dedicated men and women. The work they do is very 
important, and for the most part, they are extraordinarily 
professional. But when members of the public lose confidence in these 
agencies, it does not just undercut morale, it makes it harder for 
these agencies to do their jobs. If you ask the head of any 
intelligence agency, particularly an agency that is involved in 
domestic surveillance in any kind of way, he or she will tell you that 
public trust is the coin of the realm, it is a vital commodity, and 
voluntary cooperation from law-abiding Americans is critical to the 
effectiveness of our intelligence agencies.

  If members of the public lose confidence in these government agencies 
because they think government officials are rewriting surveillance laws 
in secret, it is going to make those agencies less effective. As a 
member of the Intelligence Committee, I do not want to see that happen.
  I wish to wrap up now with one last comment; that is, as you look at 
these statutes, and particularly the ones I have outlined--where you 
have so many hard-working lawyers and officials at these government 
agencies--I wish to make it clear I do not believe these officials have 
a malicious intent. They are working hard to protect intelligence 
sources and methods and for good reason. But sometimes they can lose 
sight of the differences between the sources and methods, which must be 
kept secret, and the law itself, which should not. Sometimes they even 
go so far as to argue that keeping their interpretation of the law 
secret is actually necessary because it prevents our Nation's 
adversaries from figuring out what our intelligence agencies are 
allowed to do.
  I can see how it might be tempting to latch onto this ``Alice in 
Wonderland'' logic. But if the U.S. Government were to actually adopt 
it, then all our surveillance laws would be kept secret because that 
would, obviously, be even more useful. When Congress passed the Foreign 
Intelligence Surveillance Act in 1978, it would have been useful to 
keep that law secret from the KGB so Soviet agents would not know 
whether the FBI was allowed to track them. But American laws should not 
be public only when government officials think it is convenient. They 
ought to be public and public all the time. The American people ought 
to be able to find out what their government thinks those laws mean.
  Earlier this week, I filed an amendment, along with my colleague from 
the Intelligence Committee, Senator Mark Udall, and that amendment 
would require the Attorney General to publicly disclose the U.S. 
Government's official interpretation of the USA PATRIOT Act. The 
amendment specifically states that the Attorney General should not 
describe any particular intelligence collection programs or activities 
but that there should be a full description of ``the legal 
interpretation and analysis necessary to understand the . . . 
Government's official interpretation'' of the law.
  This morning, Senator Mark Udall and I--and we had the help of 
several colleagues: Senator Merkley, Senator Tom Udall--reached an 
agreement with the chair of the Intelligence Committee, Senator 
Feinstein. She is going to be holding hearings on this issue next 
  Senator Mark Udall and I, as members of the committee, will be in a 
position to go into those hearings and the subsequent deliberations to 
try to amend the intelligence authorization. If we do not get results 
inside the committee, because of the agreement today with the 
distinguished chair of the Intelligence Committee, Senator Feinstein, 
and the majority leader, Senator Reid, we will be in a position to come 
back to this floor and offer our original amendment this fall.
  We are going to keep fighting for openness and honesty. As of today, 
the government's official interpretation of the law is still secret--
still secret--and I believe there is a growing gap, as of this 
afternoon, between what the public believes that law says and the 
secret interpretation of the Justice Department.
  So I plan to vote no this afternoon on this legislation because I 
said some time ago that a long-term reauthorization of this legislation 
did require significant reforms. I believe when more Members of 
Congress and the American people come to understand how the PATRIOT Act 
has actually been interpreted in secret, I think the number of 
Americans who support significant reform and the end of secret law--the 
end of law that is kept secret from them by design--I think we will see 
Americans joining us in this cause to ensure that in the days ahead, as 
we protect our country from the dangerous threats we face, we are also 
doing a better job of being sensitive to individual liberty. 

[[Page S3389]]

Those philosophies, those critical principles are what this country is 
all about. And we are going to stay at it, Senator Udall and I and 
others, until those changes are secured.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, I rise today in conjunction 
with my colleague from Oregon to discuss what is before us here on the 
floor, which is the extension of the PATRIOT Act.
  I rise as well to express my opposition to the extension of the three 
most controversial provisions in the PATRIOT Act which are before us 
here today. The process by which we have considered these provisions 
has been rushed. I believe we have done a disservice to the American 
people by not having a fuller and more open debate about these 
  Along with Senator Wyden, I want to acknowledge the difficult 
position the leader of the Senate, Senator Reid, has been in. I want to 
thank him for trying to find an agreement to vote on more amendments. 
We were very close to reaching that agreement, but even in that 
context, the debate we have had on this bill has been insufficient.
  If you look at what we are about to approve, it is a one-page bill 
which just changes the dates in the existing PATRIOT Act. This is a 
lost opportunity.
  As a member of the Intelligence Committee, I can tell you that what 
most people--including many Members of Congress--believe the PATRIOT 
Act allows the government to do--what it allows the government to do--
and what government officials privately believe the PATRIOT Act allows 
them to do are two different things. Senator Wyden has been making that 
case. I want to make it as well.
  I cannot support the extension of the provisions we are considering 
today without amendments to ensure there is a check on executive branch 
authority. I do not believe the Coloradans who sent me here to 
represent them would accept this extension either. Americans would be 
alarmed if they knew how this law is being carried out.
  I appreciate the Intelligence Committee chairwoman, Dianne Feinstein, 
working with us to hold hearings in the committee to examine how the 
administration is interpreting the law. I believe that is a critical 
step forward. However, that addresses only the overarching concern. I 
still have concerns about the individual provisions we are considering 
  We just voted to invoke cloture to cut off debate on the 4-year 
extension of provisions that give the government wide-ranging authority 
to conduct wiretaps on groups and individuals or collect private 
citizens' records. I voted no because the debate should not be over 
without a real chance to improve these authorities. I recently 
supported a 3-month extension so the Senate could take time to debate 
and amend the PATRIOT Act. We were promised that debate, but that 
opportunity is literally slipping through our hands. I would like to 
stay here and continue making the case to the American people that this 
bill should and could be improved.
  While a number of PATRIOT Act provisions are permanent and remain in 
place to give our intelligence community important tools to fight 
terrorism, the three controversial provisions we are debating, commonly 
known as roving wiretap, ``lone wolf,'' and business records, are ripe 
for abuse and threaten Americans' constitutional freedoms.
  I know we must balance the principles of liberty and security. I 
firmly believe terrorism is a serious threat to the United States, and 
we must be sharply focused on protecting the American people. In fact, 
with my seats on the Senate Armed Services Committee and the Senate 
Intelligence Committee, much of my attention is centered on keeping 
Americans safe both here and abroad. I also recognize that despite 
Osama bin Laden's death, 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. However, we need to and we can 
strike a better balance between protecting our national security and 
the constitutional freedoms of our people. Let me give you an example. 
This debate has failed to recognize that the current surveillance 
programs need improved public oversight and accountability.
  I know Americans believe we ought to only use PATRIOT Act powers to 
investigate terrorists or espionage-related targets. Yet section 215 of 
the PATRIOT Act, the so-called business records provision, currently 
allows records to be collected on law-abiding Americans without any 
connection to terrorism or espionage. If we cannot limit investigations 
to terrorism or other nefarious activities, where do they end?
  Coloradans are demanding that in addition to the review of the 
Foreign Intelligence Surveillance Court, we place commonsense limits on 
government investigations and link data collection to terrorist or 
espionage-related activities. If--or I should say when--Congress passes 
this bill to extend the PATRIOT Act until 2015, it will mean that for 4 
more years the Federal Government will have access to private 
information about Americans who have no connection to terrorism without 
sufficient accountability and without real public awareness about how 
these powers are used.
  Again, I underline that we all agree the intelligence community needs 
effective tools to combat terrorism, but we must provide these tools in 
a way that protects the constitutional freedoms of our people and lives 
up to the standard of transparency that democracy demands.
  Again, as a member of the Intelligence Committee, while I cannot say 
how this authority is being used, I believe it is ripe for potential 
abuse and must be improved to protect the constitutionally protected 
privacy rights of individual innocent American citizens. Toward that 
goal, I have worked with my colleagues to come up with commonsense 
fixes that can receive bipartisan support. For example, Senator Wyden 
and I filed an amendment that would require the Department of Justice 
to disclose the official legal interpretation of the provisions of the 
PATRIOT Act. This would make sure the Federal Government is only using 
those powers in ways the American people believe they are authorizing 
them to.
  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. This is an important part of our oversight 
duties, and I look forward to working with Chairwoman Feinstein in the 
Intelligence Committee to ensure this oversight occurs.
  I have also filed my own amendments to address some of the problems I 
see with the roving wiretap, ``lone wolf,'' and business record 
provisions. For example, I joined Senator Wyden in filing an amendment 
designed to narrow the scope of the business records materials that can 
be collected under section 215 of the PATRIOT Act. And I just 
highlighted some of the problems with that provision. Our amendment 
would still allow enforcement agencies to use the PATRIOT Act to obtain 
investigation records, but it would also require those entities to 
demonstrate that the records are in some way connected to terrorism or 
clandestine intelligence activities.
  Today, law enforcement currently can 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 their 
customers, whether or not there is a link to terrorism or espionage. I 
have to say that I just do not think it is unreasonable to ask that our 
law enforcement agencies identify a terrorism or espionage 
investigation before collecting the private information of law-abiding 
American citizens.
  These amendments represent but a few of the reform ideas we could 
have debated this week. But without further debate on these issues, 
this or any other administration, whether intentionally or 
unintentionally, can abuse the PATRIOT Act. And because of the need to 
keep classified material classified, Congress cannot publicly fulfill 
our oversight responsibilities on behalf of the American people.
  So, as I started out my remarks, I plan to vote against the 
reauthorization of these three expiring provisions

[[Page S3390]]

because we fail to implement any reforms that would sensibly restrain 
these overbroad provisions. In the nearly 10 years since Congress 
passed the PATRIOT Act, there has been very little opportunity to 
improve this law, and I, for one, am very disappointed that we are once 
again being rushed into approving policies that threaten the privacy--
which, under one definition, is the freedom to be left alone--of the 
American people. It is a fundamental element and principle of freedom.
  The bill that is before us today, in my opinion, does not live up to 
the balanced standard the Framers of our Constitution envisioned to 
protect both liberty and security, and I believe it seriously risks the 
constitutional freedoms of our people. By passing this unamended 
reauthorization, we are ensuring that Americans will live with the 
status quo for 4 more long years. I am disappointed and I know that 
many of our constituents would be disappointed if they were able to 
understand the implications of our inaction on these troubling issues.
  As I close, I just want to say there is a gravitational pull to 
secrecy that I think we all have as human beings. It is hard to resist 
it. And the whole point of the checks and balances our Founders put in 
place was to ensure that power couldn't be consolidated and that power 
abused, again whether intentionally or unintentionally. We would all 
like to be king for a day. We all have ideas about how we could make 
the world a better place. But we know the dangers in giving that much 
power to one person or one small group of people.
  Ben Franklin put it so well. I can't do justice to his remarks and 
the way he stated them, but to paraphrase him, he said that a society 
that would trade essential liberty for short-term security deserves 
neither. And our job as Senators is to ensure that we actually enjoy 
both of those precious qualities, security and liberty.
  This is an important vote today. This is an important undertaking. I 
know we can, through the leadership of Senator Wyden and many of us who 
care deeply about this, ensure that the PATRIOT Act keeps faith with 
the principles we hold dear.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so 
  Mr. REID. I appreciate everyone's patience. We are working toward the 
end, but we are not there yet.
  I ask unanimous consent that it be in order for Senator Paul to offer 
two amendments en bloc and no other amendments be in order: Amendment 
No. 363, firearm records, and amendment No. 365, suspicious activity 
reports; that there be 60 minutes of debate prior to votes in relation 
to the amendments, with the time equally divided between Senator Paul 
and the majority leader or their designees; that neither Paul amendment 
be divisible; that upon the use or yielding back of time, the majority 
leader or his designee be recognized for a motion to table; if there 
are not at least 60 votes in opposition to a motion to table the above 
amendments, the amendments be withdrawn; further, upon disposition of 
the two Paul amendments, amendment No. 348 be withdrawn; that all 
remaining time postcloture be yielded back and the Senate proceed to 
vote on adoption of the motion to concur in the House amendment to S. 
990 with amendment No. 347; that no points of order or motions be in 
order other than those listed in this agreement and budget points of 
order and applicable motions to waive.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Vermont,
  Mr. LEAHY. Madam President, reserving the right to object, I ask 
unanimous consent that the agreement be modified to include the Leahy-
Paul amendment with the same time for debate and a vote under the usual 
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Madam President, I propounded this unanimous consent 
request: I would comment to my friend, the chairman of the Judiciary 
Committee, this amendment he has suggested has bipartisan support. He 
has worked very hard on this. It is an amendment that we hope sometime 
the content of which can be fully brought before the American people 
because it is something that is bipartisan and timely. I would hope we 
can get consent to include his amendment.
  The PRESIDING OFFICER. The minority leader.
  Mr. McCONNELL. I object to the Leahy request.
  The PRESIDING OFFICER. Objection is heard.
  Is there any remaining objection to the request of the leader?
  Mr. LEAHY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The Senator does not have the floor. The 
leader has the floor.
  Mr. REID. I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Madam 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. Madam President, I renew my request.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Madam President, reserving the right to object, I would 
first ask unanimous consent that an editorial in today's Washington 
Post in favor of my amendment be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, May 25, 2011]

             A Chance to Put Protections in the Patriot Act

       Congress appears poised to renew important counterterrorism 
     provisions before they are to expire at the end of the week. 
     That much is welcome. But it is disappointing that lawmakers 
     may extend the Patriot Act measures without additional 
     protections meant to ensure that these robust tools are used 
       The Patriot Act's lone-wolf provision allows law 
     enforcement agents to seek court approval to surveil a non-
     U.S. citizen believed to be involved in terrorism but who may 
     not have been identified as a member of a foreign group. A 
     second measure allows the government to use roving wiretaps 
     to keep tabs on a suspected foreign agent even if he 
     repeatedly switches cellphone numbers or communication 
     devices, relieving officers of the obligation of going back 
     for court approval every time the suspect changes his means 
     of communication. A third permits the government to obtain a 
     court order to seize ``any tangible item'' deemed relevant to 
     a national security investigation. All three are scheduled to 
     sunset by midnight Thursday.
       House and Senate leaders have struck a preliminary 
     agreement for an extension to June 2015 and may vote on the 
     matter as early as Thursday morning. This agreement was not 
     easy to come by. Several Republican senators originally 
     wanted permanent extensions--a proposition rebuffed by most 
     Democrats and civil liberties groups. In the House, 
     conservative Tea Party members, who worried about handing the 
     federal government too much power, earlier this year bucked a 
     move that would have kept the provisions alive until 
     December. Congressional leaders were forced to piece together 
     short-term approvals to keep the tools from lapsing.
       The compromise four-year extension is important because it 
     gives law enforcement agencies certainty about the tools' 
     availability. But the bill would be that much stronger if 
     oversight and auditing requirements originally included in 
     the version from Sen. Patrick J. Leahy (D-Vt.) were permitted 
     to remain. Mr. Leahy's proposal, which won bipartisan 
     approval in the Senate Judiciary Committee, required the 
     attorney general and the Justice Department inspector general 
     to provide periodic reports to congressional overseers to 
     ensure that the tools are being used responsibly. Mr. Leahy 
     has crafted an amendment that includes these protections, but 
     it is unlikely that the Senate leadership will allow its 
       At this late hour, it is most important to ensure that the 
     provisions do not lapse, which could happen as a result of a 
     dispute between Senate Majority Leader Harry M. Reid (D-Nev.) 
     and Sen. Rand Paul (R-Ky.) over procedural issues. If time 
     runs out for consideration of the Leahy amendment, Mr. Leahy 
     should offer a stand-alone bill later to make the reporting 
     requirements the law.

  Mr. LEAHY. Madam President, further reserving the right to object, I 
find it extremely difficult--and I have

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great respect for Senator Paul as a cosponsor of my amendment--that one 
more time we have a case where we could have two amendments on the 
Republican side and we have one that is cosponsored by both Republicans 
and Democrats on this side, but we can't go forward with it. We have 
two amendments that have not gotten any committee hearings. We have one 
on this side that has been voted on by a bipartisan majority, 
Republicans and Democrats, twice out of committee, twice on the floor, 
and that can't go forward.
  It is my inclination to object further. I realize the difficulty that 
would put my friend from Nevada in, so I will not object. But I do feel 
this ruins the chances to make the PATRIOT Act one that could have had 
far greater bipartisan support, and we have lost a wonderful chance. 
But I understand we have to do what the Republicans want in this bill, 
so I will withdraw my objection.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Madam President, in this editorial to which the chairman of 
the Judiciary Committee refers, there are four very strong paragraphs 
indicating why his amendment is important and necessary. But in keeping 
with the kind of Senator we have in the senior Senator from Vermont--
the final paragraph is also quite meaningful and it is meaningful 
because that is the kind of Senator we have from Vermont by the name of 
Pat Leahy. This is the last paragraph:

       At this late hour, it is most important to ensure that the 
     provisions do not lapse, which would happen as a result of a 
     dispute between Senate Majority Leader Harry Reid and Senator 
     Rand Paul over procedural issues.

  Here is the final sentence, which demonstrates why Pat Leahy is a 
friend of the United States and is a legend in the Senate:

       If time runs out for consideration of the Leahy amendment, 
     Mr. Leahy should offer a stand-alone bill later to make the 
     reporting requirements the law.

  So I appreciate very much Senator Leahy being his usual team player.
  Mr. LEAHY. Madam President, if the Senator would yield for a moment, 
he referred to that last line that this should be offered as a 
freestanding bill. I assure the leader it will be offered as a 
freestanding bill and I hope it is one that, because of bipartisan 
support, could be brought up at some point for a vote.
  Mr. REID. Madam President, this is an extremely important plateau we 
have reached. It has been very difficult for everyone. But now this 
bill can go to the President of the United States if these amendments 
are defeated, which I hope they are. It will go to the President 
tonight before the deadline of this bill, so this bill will not lapse. 
Even though the Senator from Kentucky, Mr. Paul, and I have had some 
differences, what we have done on this legislation has at least helped 
us understand each other, which I appreciate very much, and I 
appreciate his working with us. It has been most difficult for him and 
for me.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Kentucky.
  Mr. PAUL. I am pleased today to come to the floor of the Senate to 
talk about the PATRIOT Act. I am pleased we have cracked open the door 
that will shed some light on the PATRIOT Act. I wish the door were open 
wider, the debate broader and more significant, but today we will talk 
a little bit about the constitutionality of the PATRIOT Act.
  I was a cosponsor of Senator Leahy's amendment, and I think it would 
have gone many great steps forward to make sure we have surveillance on 
what our government does. It would have authorized audits by the 
inspector general to continue to watch over and to make sure government 
is not invading the rights of private citizens, and I do support that 
  Jefferson said if we had a government of angels, we wouldn't have to 
care or be concerned about the power that we give to government. 
Unfortunately, sometimes we don't have angels in charge of our 
government. Sometimes we can even get a government in charge that would 
use the power of government in a malicious or malevolent way, to look 
at the banking records of people they disagree with politically, to 
look at the religious practices of people they disagree with. So it is 
important that we are always vigilant, that we are eternally vigilant 
of the powers of government so they do not grow to such an extent that 
government could be looking into our private affairs for nefarious 
  We have proposed two amendments that we will have votes on today. One 
of them concerns the second amendment. I think it is very important 
that we protect the rights of gun owners in our country, not only for 
hunting but for self-protection, and that the records of those in our 
country who own guns should be secret. I don't think the government, 
well intentioned or not well intentioned, should be sifting through 
millions of records of gun owners. Why? There have been times even in 
our history in which government has invaded our homes to take things 
from us. In the 1930s, government came into our households and said 
give us your gold. Gold was confiscated in this country in 1933. Could 
there conceivably be a time when government comes into our homes and 
says, We want your guns?
  People say that is absurd. That would never happen. I hope that day 
never comes. I am not accusing anybody of being in favor of that, but I 
am worried about a government that is sifting through millions of 
records without asking: Are you a suspect; without asking, are you in 
league with foreign terrorists? Are you plotting a violent overthrow of 
your government? By all means, if you are, let's look at your records. 
Let's put you in jail. Let's prosecute you. But let's not sift through 
hundreds of millions of gun records to find out whether you own a gun. 
Let's don't leave those data banks in the hands of government where 
someday those could be abused.
  What we are asking for are procedural protections. The Constitution 
gave us those protections. The second amendment gives us the right to 
keep and bear arms. The fourth amendment is equally important. It gives 
us the right to be free of unreasonable search. It gives us the right 
to say that government must have probable cause. There must be at least 
some suspicion that one is committing a crime before they come into 
one's house or before they go into one's records, wherever one's 
records are. The Constitution doesn't say that one only has protection 
of records that are in one's house. One should have protection of 
records that reside in other places. Just because one's Visa record 
resides with a Visa company doesn't make it any less private. If we 
look at a person's Visa bill, we can find out all kinds of things about 
them. If we look at a person's Visa bill, we can find out what doctors 
they go to; do they go to a psychiatrist; do they have mental illness; 
what type of medications do they take.
  If someone looked at my Visa bill, they could tell what type of books 
or magazines I read. One of the provisions of the PATRIOT Act is called 
the library provision. They can look at the books someone checks out in 
the library. People say, well, still, a judge has to sign these 
warrants. But we changed the standard. The standard of the fourth 
amendment was probable cause. They had to argue, or at least convince a 
judge, that you were a suspect, that you were doing something wrong. 
Now the cause or the standard has been changed to relevance. So it 
could be that you went to a party with someone who was from Palestine 
who gives money to some group in Palestine that may well be a terrorist 
group. But the thing is, because I went to a party with them, because I 
know that person, am I now somehow connected enough to be relevant? 
They would say, Well, your government would never do that. They would 
never go to investigate people. The problem is, this is all secret. So 
I do not know if I have been investigated. My Visa bill sometimes has 
been $5,000. Sometimes we pay for them over the phone, which is a wire 
transfer. Have I been investigated by my government? I do not know. It 
is secret.

  What I want is protection. I want to capture terrorists, sure. If 
terrorists are moving machine guns and weapons in our country, 
international terrorists, by all means, let's go after them. But the 
worst people, the people we want to lock up forever--the people all of 
us universally agree about: people who commit murder, people who commit 
rape--we want to lock them up and

[[Page S3392]]

throw away the book, and I am all with you. But we still have the 
protections of the fourth amendment.
  If someone is running around in the streets of Washington tonight--at 
4 in the morning--and we think they may have murdered someone, we will 
call a judge, and we will get a warrant. Just because we believe in 
procedural protections, just because we believe in the Constitution 
does not mean we do not want to capture terrorists. We just want to 
have some rules.
  I will give you an analogy. Right now, you have been to the airport. 
Most of America has been to the airport at some point in time in the 
last year or two. Millions of people fly every day. But we are taking 
this shotgun approach. We think everyone is a terrorist, so everyone is 
being patted down, everyone is being strip-searched. We are putting our 
hands inside the pants of 6-year-old children. I mean, have we not gone 
too far? Are we so afraid that we are willing to give up all of our 
liberty in exchange for security? Franklin said: If you give up your 
liberty, you will have neither. If you give up your liberty in exchange 
for security, you may well wind up with neither.
  Because we take this shotgun approach, we take this approach that 
everyone is a potential terrorist, I think we actually are doing less 
of a good job in capturing terrorists because if we spent our time 
going after those who were committing terrorism, maybe we would spend 
less time on those who are living in this country, children and 
otherwise, frequent business travelers, who are not a threat to our 
country. Instead of wasting time on these people, we could spend more 
time on those who would attack us.
  I will give you an example--the Underwear Bomber. For goodness' 
sakes, his dad reported him. His dad called the U.S. Embassy and said: 
My son is a potential threat to your country. We did nothing. He was on 
a watch list. We still let him get on a plane. He had been to Nigeria. 
He had been to Yemen twice. For goodness' sakes, why don't we take half 
the people in the TSA who are patting down our children and let's have 
them look at the international flight manifest of those traveling from 
certain countries who could be attacking us? For goodness' sakes, why 
don't we target whom we are looking at?
  My other amendment concerns banking records. Madam President, 8 
million banking records have been looked at in our country--not by the 
government. They have empowered your bank to spy on you. Every time you 
go into your bank, your bank is asked to spy on you. If you make a 
transaction of more than $5,000, the bank is encouraged to report you. 
If the bank does not report you, they get a large fine, to the tune of 
$100,000 or more. They could get 5 years in prison. They are 
overencouraged. The incentive is for the bank to report everyone. So 
once upon a time, these suspicious-activity reports were maybe 10,000 
in a year. There are now over 1 million of these suspicious-activity 
  Do I want to capture terrorists? Yes. Do I want to capture terrorists 
who are transferring large amounts of money? Yes. But you know what. 
When we are wasting time on 8 million transactions--the vast majority 
of these transactions being by law-abiding U.S. citizens--we are not 
targeting the people who would attack us.
  Let's do police work. If there are terrorist groups in the Middle 
East and we know who they are, let's investigate them. If they have 
money in the United States or they are transferring it between banks, 
by all means, let's investigate them. But let's have some 
constitutional protections. Let's have some protections that say you 
must ask a judge for a warrant.
  Some have said: How would we get these people? Would we capture those 
who are transferring weapons? We would investigate. We have all kinds 
of tools, and we have been using those tools.
  Others have said: Well, we have captured these people through the 
PATRIOT Act, and we never could have gotten them. The problem with that 
argument is that it is unprovable. You can tell me you captured people 
through the PATRIOT Act and I can believe you captured them and you 
have prosecuted them, but you cannot prove to me you would not have 
captured them had you asked for a judge.
  We have a special court. It is called the FISA Court. The FISA Court 
has been around since the late 1970s. Not one warrant was ever turned 
down before the PATRIOT Act. But they say: We need more power. We need 
more power given to these agencies, and we do not need any 
constitutional restraint anymore.
  But my question is, the fourth amendment said you had to have 
probable cause. You had to name the person and the place. Well, how do 
we change, get rid of probable cause and change it to a standard of 
relevance? How do we do that and amend the Constitution without 
actually amending the Constitution? These are important constitutional 
questions. But when the PATRIOT Act came up, we were so frightened by 
9/11 that it just flew through here. There were not enough copies to be 
read. There was one copy at the time. No Senator read the PATRIOT Act. 
It did not go through the standard procedure.
  Let's look at what is happening now. Ten years later, you would think 
the fear and hysteria would have gotten to such a level that we could 
go through the committee process. Senator Leahy's bill went to 
committee. It was deliberated upon. It was discussed. It was debated. 
It was passed out with bipartisan support. It came to the floor with 
bipartisan support. But do you know why it is not getting a vote now? 
Because they have backed us up against a deadline.
  There have been people who have implied in print that if I hold up 
the PATRIOT Act and they attack us tonight, then I am responsible for 
the attack. There have been people who have implied that if some 
terrorist gets a gun, then I am somehow responsible. It is sort of the 
analogy of saying that because I believe you should get a warrant 
before you go into a potential or alleged murderer's house, somehow I 
am in favor of murder.
  I am in favor of having constitutional protections. These arose out 
of hundreds of years of common law. They were codified in our 
Constitution because we were worried. We were incredibly concerned 
about what the King had done. We were concerned about what a far 
distant Parliament was doing to us without our approval. We were 
concerned about what James Otis called writs of assistance. Writs of 
assistance were pieces of paper that were warrants that were written by 
soldiers. They were telling us we had to house the British soldiers in 
our houses, and they were giving general warrants which meant: We are 
just going to search you willy-nilly. We are not going to name the 
person or the place. We are not going to name the crime you are accused 
  If a government were comprised of angels, we would not need the 
fourth amendment. What I argue for here now is protections for us all 
should we get a despot, should we someday elect somebody who does not 
have respect for rights. We should obey rules and laws.
  Is this an isolated episode we are here talking about, the PATRIOT 
Act, and that there is an insufficient time, that it is a deadline: 
Hurry, hurry; we must act. It is not an isolated time.
  We have had no sufficient debate on the war with Libya. We are now 
encountered in a war in Libya, so we now have a war in which there has 
been no congressional debate and no congressional vote. But do you know 
what they argue. They say it is just a little war. But you know what. 
It is a big principle. It is the principle that we as a country elect 
people. It is a principle that we are restrained by the Constitution, 
that you are protected by the Constitution, and that if I ask the young 
men and women here today to go to war and say we are going to go to 
war, there darn well should be a debate in this body. We are abdicating 
those responsibilities.

  We are not debating the PATRIOT Act sufficiently. We are not having 
an open amendment process. It took me 3 days of sitting down here 
filibustering, but I am going to get two amendment votes. I am very 
happy and I am pleased we came together to do that. I wish we would do 
more. I wish Senator Leahy's bill was being voted on here on the floor. 
I wish there were a week's worth of debate.
  The thing is, we come here to Washington expecting these grand 
debates. I have been here 4 months. I expected

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that the important questions of the day would be debated back and 
forth. Instead, what happens so often is the votes are counted and 
recounted and laboriously counted. When they know they can beat me or 
when they know they can beat somebody else, then they allow the vote to 
come to the floor. But some, like Senator Leahy's bill--I am suspicious 
that it is not going to be voted on because they may not be able to 
beat it. I support it.
  So the question is, Should we have some more debate in our country? 
We have important issues pressing on us. I have been here for 4 months, 
and I am concerned about the future of our country because of the debt 
burden, because of this enormous debt we are accumulating. But are we 
debating it fully? Are we talking about ways we could come together, 
how Republicans and Democrats, right and left, could come together to 
figure out this crisis of debt? No. I think we are so afraid of debate 
but particularly with the PATRIOT Act.
  The thing with the PATRIOT Act is that it is so emotional because 
anyone who stands up, like myself, and says we need to have protections 
for our people, that we should not sift through the records of every 
gun owner in America, looking and just trolling through records--
interestingly, we have looked at 28 million electronic records, when 
the inspector general looked at this--28 million electronic records. We 
have looked at 1,600,000 texts. If you said to me: Well, they asked a 
judge, and they thought these were terrorists, I do not have a problem. 
The judge gives them a warrant, and they look at these text messages or 
electronic records. But do you want them trolling through your 
Facebook? Do you want them trolling through your e-mails? Do you want a 
government that is unrestrained by law?
  This ultimately boils down to whether we believe in the rule of law. 
So often we give lipservice to it on our side and the other side, and 
everybody says: We believe in the Constitution and the rule of law. 
When you need to protect the rule of law is when it is most unpopular. 
When everybody tells you that you are unpatriotic or you are for 
terrorism because you believe in the Constitution, that is when it is 
most precious, that is when it is that you need to stand up and say no.
  We can fight. We can preserve our freedoms. We are who we are because 
of our freedoms and our individual liberty. If we give that up, we are 
no different from those whom we oppose. Those who wish to destroy our 
country want to see us dissolved from within. We dissolve from within 
when we give up our liberties. We need to stand and be proud of the 
fact that in our country it is none of your darn business what we are 
reading. It is none of your business where we go to see a doctor, what 
movie we see, or what our magazines are. It is nobody's business here 
in Washington what we are doing. If they think it is the business of 
law enforcement, get a warrant. Prove to somebody--at least have one 
step that says that person is doing something suspicious.
  The thing is, these suspicious-activity reports--8 million of them 
have been filed in the last 8 years. The government does not have to 
ask for this; it is sort of like they have deputized the banks. The 
banks have now become sort of like police agencies. The banks are 
expected to know what is in the Bank Secrecy Act. They are expected to 
know thousands of pages of regulations. But do you know what they tell 
your bank. If you do not report everybody, if you do not report these 
transactions, we will fine you, we will put you in jail, or we will put 
you out of business.
  That is a problem. It is a real problem that that is what has come of 
this. I think we need to have procedural protections.
  Madam President, if at this point there is a request from the Senator 
from Illinois to yield for a question or a comment, I would be happy 
to, if it is about the PATRIOT Act.
  OK. The amendments I will be proposing will be about two things, and 
we will have votes on them. We have been given the time to debate, 
which I am glad we fought for. We will basically be given a virtually 
insurmountable hurdle. This will be maybe the first time in recent 
history I remember seeing this, but they will move to table my 
amendments. In order for me to defeat the tabling motion, I will have 
to have 60 votes. It is similar to the votes we have when you have to 
overcome a cloture vote or you have to overcome a filibuster. But we 
really are not having any vote where there is a possibility of me 
winning. There is really a forgone conclusion. The votes are counted in 
  I am proud of the fact that I fought for, though, and we got some 
debate on the floor and that maybe in bringing this fight, the country 
will consider and reconsider the PATRIOT Act. But we need to have more 
debate. Senator Leahy's bill needs to be fully debated and needs to 
come out. Maybe when there is not a deadline, maybe it will come 
forward. Maybe we can have some discussion.
  But I guess most of my message is that we should not be fearful. We 
should not be fearful of freedom. We should not be fearful of 
individual liberty. And they are not mutually exclusive. You do not 
have to give up your liberty to catch criminals. You can catch 
criminals and terrorists and protect your liberty at the same time. 
There is a balancing act. But what we did in our hysteria after 9/11 
was we did not do any kind of balancing act. We just said: Come and get 
it. Here is our freedom, come and get it. We do not care whether there 
is review in Congress. We do not care whether there is to be an 
inspector general looking at this.
  One of my colleagues today reported: Well, there is no evidence those 
8 million banking investigations are bothering or doing anything to 
innocent people. Well, there is a reason for there being no evidence: 
They are secret. You are not told if your bank has been spying on you. 
If your bank has put in a suspicious-activity report, you are not 
informed of that.
  So the bottom line is, just because there is no complaint does not 
mean there have not been abuses. There is something called national 
security letters. These are written by officers of the law, by FBI 
agents. There is no review by judges. There have been 200,000 of these. 
There has been an explosion of these national security letters, and we 
do not know whether they are being abused because they are a secret.
  In fact, here is how deep the secret goes. When the PATRIOT Act was 
originally passed, you were not allowed to tell your lawyer. If the 
government came to you with an FBI agent's request, you could not even 
tell your lawyer. This, is very disturbing. They finally got around to 
changing that. But you know what. If I had an Internet service, if I am 
a server and they come to me with a policeman's request, and they say: 
Give us your records--if I tell anyone other than my attorney, I can go 
to jail for 5 years.
  What we have is a veil of secrecy. So even if the government is 
abusing the powers, we will never know. How much time remains?
  The PRESIDING OFFICER. The Senator has 8 minutes remaining.
  Mr. PAUL. Does the Senator from Illinois wish to interject?
  Mr. DURBIN. I understand there is time on the other side as well.
  The PRESIDING OFFICER. There is 28 minutes on the majority side.
  Mr. DURBIN. I would like to speak on the majority's time.
  Mr. PAUL. I will finish up then. As we go forward on these, I would 
hope there would be some deliberation and that the vote, as it goes 
forward, people will think about that we need to balance our freedoms 
with our security. I think we all want security. Nobody wants what 
happened on 9/11 to happen again.
  But I think we do not need to simplify the debate to such an extent 
that we simply say we have to give up our liberties. For example, I 
cannot tell you how many times people have come up to me in Washington, 
unelected officials, and said: We could have gotten Moussaoui, the 19th 
hijacker, if we had the PATRIOT Act.
  The truth is, we did not capture Moussaoui because we had poor police 
work. Ask yourself: Did we fire anybody after 9/11? We gave people gold 
medals. We gave them medals of honor for their intelligence work after 
9/11. To my knowledge, not one person was fired.
  Do you think we were doing a good job before 9/11? We had the 19th 
hijacker in prison, in custody for a

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month before 9/11. We had his computer. When they looked at Moussaoui's 
computer 4 days after 9/11 or the day after 9/11, they connected all of 
the dots to most of the hijackers and to people in Pakistan.
  Why did we not look at his computer? Was it because we did not have 
the prerogative? They did not ask. An FBI agent in Minnesota wrote 70 
letters to his superiors saying: Ask for a warrant. His superiors did 
not ask for a warrant. Do you think we should have done something about 
that after 9/11?
  We gave everybody in the FBI and the CIA medals. We gave the leaders 
medals for meritorious service, and no one blinked an eye. What did we 
do? We passed the PATRIOT Act and said: Come and take our liberties. 
Make us safe. But to make us safe, we should not give up our rights to 
protect what we read, to protect what we view, to protect where we go 
and who we associate with. We should not allow governments to troll 
willy-nilly through millions of records.
  You have heard of wireless wiretaps. A lot of these things are 
unknown because they are so secret that nobody knows. Even many of us 
do not even know the extent of these things. But I can tell you, there 
is a great deal of evidence that we were looking at millions of records 
and that millions of innocent U.S. citizens are having their records 
looked at.
  Now, are we doing anything? Are we imprisoning innocent folks? No, I 
do not think we are doing that. I think they are good people. I think 
the people I have met in the FBI, the people I have met in our 
government want to do the right thing. But what I am fearful of is that 
there comes a time when we have given up these powers--for example, the 
constitutional discussion over war.
  If we say: Well, Libya is just a small war. We do not care. We say 
Congress has no say in this. What happens when we get a President who 
decides to send 1 million troops into war and we simply say: Who cares. 
You know, we let the President do whatever he has to do because he has 
unlimited powers.
  We fought a war, we fought long and hard to restrict--we wanted an 
Executive that was bound by the chains of the Constitution. We wanted a 
Presidency, an executive branch that was bound by the checks and 
balances. That is what our Constitution is about. It is about debate. 
Debate is important. Amendments are important. Bringing forward 
something from committee that would have reformed the PATRIOT Act is 
incredibly important, to have those debates on the floor of the Senate.
  That is why there is a certain amount of disappointment to having 
arrived in Washington and to see the fear of debate of the 
Constitution, and that we need to be debating these things. We need to 
have full amendments.
  Can there be any excuse why the inspector general should not be 
reviewing other agencies of government to find out if our rights are 
being trampled upon.
  So I would ask, in conclusion, as these amendments come forward, that 
people think about it. Think about our constitutional protections. But 
do not go out and say the Senator from Kentucky does not want to 
capture terrorists or the Senator from Kentucky wants people to have 
guns and to attack us because the thing is, we can have reasonable 
philosophical debates about this, but we need to be having an open 
debate process. We need to talk about the constitutional protections, 
the provisions that protect us all, and we need to be aware of that.
  I tell people: You cannot protect the second amendment if you do not 
believe in the fourth amendment. You cannot protect the second 
amendment if you do not believe in the first amendment. It is all 
incredibly important.
  I hope as we go forward on this vote, and even though I will likely 
fail, because of the way the rules are set up on the vote, I hope as we 
go forward that at least somebody will begin to discuss this, somebody 
will begin to discuss where we should have some constitutional 
restraint; that Senator Leahy will have a chance to bring his bill 
forward, and that there will be a full and open debate.
  I hope we have cracked the door open and I have been a small part of 
  I yield back my time.
  The PRESIDING OFFICER (Ms. Klobuchar.) The Senator from Illinois.
  Mr. DURBIN. Madam President, it is my understanding that we have a 
consent that will allow Senator Paul to offer two amendments, and then 
we will go to final passage on this reauthorization of the PATRIOT Act.
  The PRESIDING OFFICER. That is correct.
  Mr. DURBIN. I will oppose the amendments offered by Senator Paul, and 
then oppose the reauthorization of the PATRIOT Act. I would like to 
explain in my remarks why.
  I voted for the PATRIOT Act in the year 2001. In fact, there was only 
one Senator on the floor--who no longer serves--who voted against it. 
It was a moment of national crisis. We were told then by the Bush 
administration they needed new authorities to make certain that America 
would be safe and never attacked again.
  I want to salute Senator Patrick Leahy, as well as his counterparts 
on both sides of the aisle, who worked night and day to put together a 
bipartisan version of this PATRIOT Act and had the good sense to 
include in it a sunset. We knew we were writing a law with high emotion 
over what had happened to our country. We wanted to make sure it was a 
good law, but we made certain it would be temporary in nature, for the 
most part, and we would return and take another look at it. I cannot 
vote for an extension, a long-term extension, of the PATRIOT Act 
without additional protections included for the constitutional rights 
of our American citizens.
  It is worth taking a moment to review the history. The PATRIOT Act 
was passed 10 years ago--almost 10 years ago--while Ground Zero was 
still burning. Congress responded and passed it with an overwhelming 
bipartisan vote. It was a unique moment in our history. But even then 
we were concerned enough to put a sunset and to do our best to review 
it in the future to determine whether it went too far when it came to 
our freedoms. I voted for it, but I soon realized that it gave too much 
power to government without enough judicial and congressional 

  So 2 years after the PATRIOT Act became law, I joined a bipartisan 
group of Senators in introducing the SAFE Act, legislation to reform 
the PATRIOT Act. The SAFE Act was supported by advocates from the left 
and right, from the ACLU to the American Conservatives Union. 
Progressive Democrats and very conservative Republicans came together 
across the partisan divide understanding Americans can be both safe and 
  We wanted to retain the expanded powers of the PATRIOT Act but place 
some reasonable limits to protect constitutional rights. When he joined 
the Senate in 2005, Senator Barack Obama became a cosponsor of our SAFE 
Act. Here is what he said as a Senator:

       We don't have to settle for a PATRIOT Act that sacrifices 
     our liberties or our safety. We can have one that secures 

  I agree with then-Senator Obama. In 2006, the first time Congress 
reauthorized the PATRIOT Act, some reforms from the SAFE Act were 
included in the bill, and I supported it. However, many key protections 
from the SAFE Act were not included, so there are still significant 
  The FBI is still permitted to obtain a John Doe roving wiretap that 
does not identify the person or the phone that will be wiretapped. In 
other words, the FBI can obtain a wiretap without telling a court who 
they want to wiretap or where they want to wiretap.
  In garden variety criminal cases, the FBI is still permitted to 
conduct sneak-and-peak searches of a home without notifying the 
homeowner about the search until a later time. We now know the vast 
majority of sneak-and-peak searches take place in cases that do not 
involve terrorism in any way.
  A national security letter, or NSL, is a form of administrative 
subpoena issued by the FBI. We often hear NSLs compared to grand jury 
subpoenas. But unlike a grand jury subpoena, a national security letter 
is issued without the approval of a grand jury or even a prosecutor. 
And unlike the grand jury subpoena, the recipient of an NSL is 
subjected to a gag order at the FBI's discretion.
  The PATRIOT Act also greatly expanded the FBI's authority to issue

[[Page S3395]]

NSLs. An NSL now allows the FBI to obtain sensitive personal 
information about innocent American citizens, including library 
records, medical records, gun records, and phone records even when 
there is no connection whatsoever to a suspected terrorist or spy.
  The Justice Department's inspector general concluded that this 
standard ``can be easily satisfied.'' This could lead to government 
fishing expeditions that target innocent people.
  For years we have been told there is no reason to be concerned about 
this broad grant of power to the FBI. In 2003, then-Attorney General 
Ashcroft testified to our committee that librarians raising concerns 
about the PATRIOT Act were ``hysterics'' and that ``the Department of 
Justice has neither the staffing, the time, nor the inclination to 
monitor the reading habits of Americans.'' But we now know the FBI has, 
in fact, issued national security letters for the library records of 
innocent people.
  For years we were told the FBI was not abusing this broad grant of 
power. But in 2007, the Justice Department's own inspector general has 
concluded the FBI was guilty of ``widespread and serious misuse'' of 
the national security letter's authority and failed to report these 
abuses to Congress and the White House.
  The inspector general reported that the number of national security 
letter requests has increased exponentially from about 8,500 the year 
before enactment of the PATRIOT Act to an average of more than 47,000 
per year, and even these numbers were significantly understated.
  We can be safe and free. I think it is important that the measure 
that passed the Senate Judiciary Committee should have been on the 
Senate floor. It included an amendment which I offered with Senator 
Leahy and other provisions which I think are an improvement over the 
current bill before us.
  I will say one quick word about the amendment by Senator Paul. I do 
not believe it is in our Nation's best interests to exempt gun records 
from terrorist investigations. For goodness' sake, when we are dealing 
with people--terrorists using guns--searching the records to make 
certain that we know the source of those guns and whether there are any 
other threats to this Nation is reasonable to do.
  These should not be so sacred and sacrosanct that we do not ask the 
hard questions when our Nation's security is at risk. I would agree 
with him that we ought to make certain there is a connection between 
that request for gun record information and a suspected terrorist or 
spy. But to say these records cannot be asked for under the PATRIOT Act 
goes too far. That is why I will oppose his amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. CHAMBLISS. I rise to speak in opposition to Amendment No. 365, 
Senator Paul's amendment concerning suspicious activity reports, or 
what is referred to as SARS.
  This amendment would prevent the Department of Treasury from 
requiring any financial institution to submit a suspicious activity 
report unless law enforcement first requests the report. If this 
amendment should become law, it will effectively take away one of the 
government's main weapons in the battle against money laundering and 
other financial crimes.
  It will also negatively impact our efforts to detect and follow the 
flow of funds to and from international terrorists. It is important to 
remember that SARS are essentially tips from third-party financial 
institutions concerning suspicious transactions. Because law 
enforcement is not watching the financial transaction of every American 
on a daily basis 24/7, they often have no idea that a person is even 
engaged in a financial crime until they receive a suspicious activity 
notification from a financial institution. In a sense, SARs are not 
much different than the tips that law enforcement often receives from 
anonymous sources. These tips or leads can often form the basis for 
initiating investigations that can be used to neutralize criminal or 
terrorist activities.

  The problem with this amendment is that it would require the 
government to look into a crystal ball in order to figure out when they 
should request a SAR. With this logic, we should only allow law 
enforcement to act on an anonymous tip unless they ask for the tip to 
be reported first. If a law enforcement or intelligence officer doesn't 
get a tip about suspicious activity, how in the world is he going to 
know when it occurred in the first place? The answer here is simple: 
They will likely never know it occurred until the criminal activity has 
occurred, and maybe it will even go undetected.
  Look, for example, at the 9/11 hijackers. There was a minimum of 12 
to 13 of those individuals who came into and out of the United States 
over a period of time. Money was transferred to and from those 
individuals over a period of time. Under the requirements pre-PATRIOT 
Act, there was no suspicious activity detected. But after the enactment 
of the PATRIOT Act, there would be reason now for any financial 
institution to suspect the potential for suspicious activity from those 
transfers of moneys.
  That is exactly why we did what we did in the PATRIOT Act, and that 
is one of the reasons why we have not seen a subsequent direct attack 
on U.S. soil from individuals who had been in the United States and 
have received money through transfers, or whatever it may be. Let's 
don't forget that section 215 business records cannot be obtained in an 
arbitrary manner. There has to be, first of all, a determination that 
there is some international connection between the individual whose 
account has been deemed suspicious by the financial institution, and 
also there has to be some follow-on procedure to determine that there 
is reason for the government to get hold of the financial records of 
this individual.
  In my mind, this amendment would put law enforcement in an 
unacceptable and unreasonable position. At the same time we are asking 
them to pursue swindlers and money launderers more aggressively, we 
need to preserve the requirement that financial institutions report 
suspicious activities. We need to follow up on these leads not just 
from a criminal law enforcement perspective but from a national 
security perspective as well.
  Since 9/11, I have been involved with the Intelligence Committee all 
of those years. We do extensive oversight on this particular provision 
in the PATRIOT Act, as well as other provisions. We have hearings on 
this from time to time, and we require the law enforcement officials to 
come in and talk to us about what they are doing. To my knowledge, 
there has never been one complaint or abuse that has been shown from 
the use of this particular provision. This particular provision is 
working exactly the way we intended it to work. It is a valuable tool 
for our law enforcement.
  Let me speak also about amendment No. 363, which is Senator Paul's 
amendment concerning firearms records. Simply put, this amendment would 
make it more difficult for national security investigators to prevent 
an act of terrorism inside the United States. The amendment would 
prohibit the use of a FISA business records court order to obtain 
firearms records in the possession of a licensed firearms importer, 
manufacturer, or dealer. Instead, national security investigators could 
only obtain such records through a Federal grand jury subpoena during 
the course of a criminal investigation or with a search warrant issued 
by a Federal magistrate upon a showing of reasonable cause to believe 
that a violation of Federal firearms laws has occurred. That might not 
always be possible.
  For example, before MAJ Nidal Hasan began his deadly assault against 
innocent military and civilian personnel at Fort Hood, TX, in November 
2009, there was no evidence that he had violated any criminal or 
Federal firearms laws. Thus, the FBI could not have relied on title 18 
to obtain information about Hasan's purchase of the firearms used in 
the attack.
  As we have since learned, however, there was likely enough 
intelligence information to open a preliminary investigation on Hasan 
because of his contacts with a known al-Qaida member in Yemen, and seek 
a section 215 order for information about his gun purchases. I don't 
understand why we would take this tool away from national security 
investigators, especially, here again, where there has been no 
indication of any abuse of this authority with respect to firearms or 
other sensitive records.

[[Page S3396]]

  Congress has conducted extensive oversight of the PATRIOT Act and 
FISA authority, and there have been no reports of any widespread abuse 
or misuse, and no reports that the government has ever used these 
authorities to violate second amendment rights.
  Moreover, the protections detailed in section 215 ensure that second 
amendment rights are fully respected in the use of this authority. 
Unlike in criminal investigations where a Federal grand jury may issue 
a subpoena for firearms records, any request for records under section 
215 must first be approved by the Foreign Intelligence Surveillance 
Court. As with all other section 215 records, the court must find that 
such records are relevant to an authorized national security 
investigation. This means the FBI cannot use this authority in a 
domestic terrorism investigation, nor can the FBI randomly decide to 
see whether an ordinary citizen or even a vocal advocate of the second 
amendment owns a firearm.
  There are two additional oversight safeguards that are built into the 
section 215 process. First, each request for these sensitive records by 
the FBI can only be approved by one of three high-level FBI officials--
the Director, the Deputy Director, or the Executive Assistant Director 
for National Security.
  Second, there are also specific reporting requirements that are 
designed to keep Congress informed about the number of orders issued 
for these types of sensitive records.
  One of the big lessons we learned after the 9/11 terrorist attacks 
was that we needed to make sure national security investigators had 
access to investigative tools similar to those that have long been 
available to law enforcement. Section 215 of the PATRIOT Act addresses 
that need. It provides an alternative way to obtain business records, 
including firearms records, in situations where there may be a national 
security threat but not yet a criminal investigation or violation.
  I have long been a strong supporter of the second amendment. There is 
nobody in this body who has a better voting record on the second 
amendment than I do. Probably nobody here owns as many guns as I own, 
but I use them for legal and lawful purposes. I will work with the 
National Rifle Association and any citizen group to make sure that 
neither this law nor any Federal law is misused to infringe on the 
second amendment rights of any law-abiding citizen. But this particular 
amendment would harm legitimate national security investigations.
  I want to take a minute to read a letter I received from Chris Cox, 
executive director of the National Rifle Association:

       Dear Senator Chambliss: Thank you for asking about the 
     National Rifle Association's position on a motion to table 
     amendment No. 363 to the PATRIOT Act. The NRA takes a back 
     seat to no one when it comes to protecting gun owners' rights 
     against government abuse. Over the past three decades, we 
     fought successfully to block unnecessary and intrusive 
     compilation of firearms-related records by several Federal 
     agencies, and will continue to protect the privacy of our 
     members and all American gun owners.
       While well-intentioned, the language of this amendment, as 
     currently drafted, raises potential problems for gun owners, 
     in that it encourages the government to use provisions in 
     current law that allow access to firearms records without 
     reasonable cause, warrant, or judicial oversight of any kind. 
     Based on these concerns, and the fact that the NRA does not 
     ordinarily take positions on procedural votes, we have no 
     position on a motion to table amendment No. 363.

  For those reasons, I intend to vote against both of these amendments. 
While I appreciate the intent and the emotion with which my friend 
Senator Paul comes to the floor to advocate, we need to make sure we 
get these extensions in place immediately, so we have no gap in the 
coverage available to our intelligence community, and that we continue 
to give them the tools they need to protect America and protect 
  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. COONS. Madam President, I ask unanimous consent that the Senate 
proceed to the consideration of S. 1114, a short-term one-month PATRIOT 
Act sunset extension bill, which is currently at the desk; that the 
bill be read the third time, and passed; that the motion to reconsider 
be laid upon the table, with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. CHAMBLISS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. COONS. I am disappointed my unanimous consent request was not 
agreed to. I wish to explain my action here today. The comments I am 
about to give are an explanation of a vote I intended to take later 
  As Senator Chambliss said just before me, the powers of the PATRIOT 
Act are too important for us to risk their expiration as this body 
considers whether to amend them or revise them. I could not agree more.
  I offered a 1-month extension in order that this body may take the 
time that is needed and deserved to seriously debate and conduct 
oversight over the PATRIOT Act. This is a significant piece of national 
security legislation that I believe is worthy of further consideration 
and debate.
  Law enforcement agencies--Federal, State, and local--work day in and 
day out to protect all of us from real threats that go largely unknown 
and unnoticed by most Americans. I want law enforcement to have all the 
appropriate tools in their toolbox to accomplish this goal.
  Unfortunately, there are also, in my view, legitimate concerns about 
the legislation on which we are about to vote--concerns that my 
colleagues and I, including the occupant of the chair, on the Judiciary 
Committee, reviewed and addressed in detail, and in a bill ultimately 
passed, S. 193, which forms the core of the Leahy-Paul amendment of 
which I am a cosponsor. We put those provisions before this Chamber. I 
am disappointed we don't have consent to move forward in order to have 
time to debate these reforms to the PATRIOT Act. As Americans, the 
choice between liberty and safety is not one or the other. We expect 
and demand both. Balancing the two responsibly requires careful 
consideration to each.
  We must be cognizant of our Nation's very real enemies who intend to 
do us harm, just as they did on September 11. It was awareness of this 
danger in the world that motivated this Congress, as we have heard in 
previous speeches, to enact the PATRIOT Act, nearly 10 years ago now, 
in the wake of those attacks. A grave new threat called for bold new 
authorities. Though I was not then in the Senate, I likely too would 
have voted for its passage.
  But this body's passage of that act did not amount to a permanent 
choice of security over liberty. Because of the broad scope of the new 
authorities in the PATRIOT Act, the bipartisan drafters of the bill 
insisted upon placing key sunset provisions in the bill to ensure that 
Congress periodically reviewed how they were being used and assessed 
whether they were still essential to our security.
  Even in the unnerving weeks after 
9/11--an extraordinary time in the history of this Congress and this 
Nation--the authors of the PATRIOT Act knew that the powers they were 
granting needed to be monitored.
  Sunsets are critical to ensuring that the PATRIOT authorities are not 
abused by the government. They are critical.
  It's because of sunsets that every 4 years, the FBI must return to 
Congress and justify its use of the PATRIOT Act overall and three 
provisions in particular: the roving wiretap, the lone wolf authority, 
and Sec. 215 orders, which allow the government to demand virtually any 
document or other evidence pertaining to an individual from a third 
  Sunsets only work, however, if we in Congress have the innate courage 
to ask the difficult questions when they arise. If, instead, Congress 
shies away from the tough debate and simply extends the sunsets for 
another 4 years, we surrender our responsibility to consider whether 
specific provisions should be amended, reauthorized, or allowed to 
  If the proposed 4-year extension passes without amendment, it will 
have been 9 years before Congress votes on reforms to PATRIOT--9 years.
  What is the point of having sunsets in this bill if we are going to 
ignore our oversight responsibilities?
  Regretfully, I cannot support any measure that extends controversial 
and searching PATRIOT authorities until 2015 if this body does not 
first consider whether the act is in need of amendment. And so I must.

[[Page S3397]]

  The Judiciary Committee did exactly what it is supposed to do and has 
worked for months on improving the PATRIOT Act ahead of this deadline. 
It was a difficult, bipartisan debate but the bill we produced is 
strong and deserved to be considered by the full body. Chairman Leahy 
deserves credit for crafting a set of commonsense, responsible 
  In each of the last two Congresses, the Judiciary Committee reported 
a bipartisan PATRIOT reauthorization bill. In each case, the bills 
would have made important revisions to PATRIOT without compromising 
national security. Also in each case, the bills were reported out in 
plenty of time for this full body to consider them. In each case, no 
floor action was taken until such a late hour that meaningful debate 
over the expiring provisions has been precluded.
  The Judiciary-reported bill, S. 193, which forms the basis of the 
Leahy-Paul amendment, deserves consideration. It deserves consideration 
because our serious consideration of reforms sends the strong message 
that the PATRIOT authorities are not a blank check, that we in Congress 
are watching closely to make sure that the use of PATRIOT is consistent 
with our shared national respect for individual liberty and freedom.
  The Leahy-Paul amendment also deserves consideration because the last 
5 years have shown us that substantive revisions to PATRIOT are called-
for and, indeed, necessary. I would like to speak briefly about just 
one necessary change, those to the national security letter program.
  National security letters, or NSLs are administrative subpoenas that 
allow the government to demand subscriber information from third 
parties without even having to go to a judge. These orders are also 
extraordinary in that they prohibit recipients from telling anyone of 
their existence.
  In 2007 and 2008, the Department of Justice inspector general found 
massive abuses in the NSL Program, with tens of thousands of NSLs 
issued for purposes that had nothing to do with national security. 
Further, in 2008, a court found that the gag order in each NSL was 
  Plainly, NSLs are in need of revision, both to bring them in line 
with the Constitution and to guard against abuses that have nothing to 
do with national security. I support legislation that would require 
that DOJ maintain sufficient internal guidelines to ensure that NSLs 
are only issued when the agents issuing them state facts that show 
relevance to national security. I also favor amending the gag order so 
that any recipient can immediately challenge it in court.
  These simple reforms as well as the others contained in the Leahy-
Paul amendment, do not make our Nation more vulnerable to attack. That 
is why, in 2010, the Attorney General and the Director of National 
Intelligence sent a letter to Congress expressing the view that 
legislation almost identical to Leahy-Paul ``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.''
  These reforms make our Nation more secure because they strengthen our 
place in the world as the cradle of liberty.
  I don't want to repeal the PATRIOT Act, but at this moment we have a 
choice, and a chance--our last chance for 4 years--we can push forward 
with a bill that does nothing to improve PATRIOT--nothing to factor in 
everything that is changed in the last 5 years, or we can vote down 
this long-term extension, vote for a short-term extension and move to 
debate of the reforms that the Judiciary Committee has already worked 
  The PATRIOT Act is important to our national security, but I cannot 
support the abdication of Congress's role in strengthening it.
  If I might, in summation, simply say this: If we were today to pass a 
4-year extension, without amendment or revision, it will have been 9 
years that Congress does not act in any substantive way on the 
amendments. I join Senator Leahy in intending to vote ``no'' today, not 
because I believe the PATRIOT Act is fundamentally flawed or because I 
believe the United States doesn't face real enemies, but because I 
think this Congress has not taken seriously its very real oversight 
responsibilities, its need to strike that balance. The Judiciary 
Committee did that hard work. For this Congress to not amend this bill 
with the simple balanced and reasonable amendment offered in the Leahy-
Paul amendment, I believe I am compelled to strike the balance between 
security and liberty on the side of liberty today, by saying this body 
has failed to act and to appropriately conduct thorough oversight of 
this bill before we send it 4 years into the future.
  I yield the floor.
  Mr. LEVIN. Madam President, how much time is left?
  The PRESIDING OFFICER. There is 5\1/2\ minutes.
  Mr. LEVIN. I thank the Chair.
  Madam President, I rise in opposition to the amendment of Senator 
Paul, No. 365. This amendment would effectively wipe out a critical 
tool used against terrorists and drug traffickers. I want to explain 
exactly what these suspicious activities reports are and why they are 
so essential to the FBI and other law enforcement people.
  First of all, who uses them? FBI, organized crime units, drug 
trafficking task forces, border security, Secret Service, State and 
local police, and the intelligence community all use these SARs. 
Second, what are they used for? There was a report from the GAO in 2009 
which said the following: How are SARs used? They gave a number of 
  The FBI includes SAR data in its Investigative Data Warehouse to 

     financial patterns associated with money laundering, bank 
     fraud, and other aberrant financial activities.

  Second, Organized Crime Drug Enforcement Task Force's Fusion Center 
combines SAR data with other data to:

     produce comprehensive integrated intelligence products and 

  Third, the IRS uses SARs to identify:

     financial crimes, including individual and corporate tax 
     frauds and terrorist activities.

  We received a letter just today from the Attorney General of the 
United States strongly opposing this amendment of Senator Paul, and 
this is what the Attorney General says:

       SARs are a critical tool for our national security and law 
     enforcement professionals. SARs are used to alert 
     intelligence and law enforcement personnel to issues that 
     warrant further investigation and scrutiny. The purpose of 
     the SAR regime is to require financial institutions to report 
     on suspicious activities based on information that is solely 
     within their possession. Prior to the filing of a SAR, our 
     law enforcement and intelligence analysts often are not aware 
     that a particular bank account or individual may be 
     associated with criminal activity or may be engaged in 
     activities that pose a threat to national security, such as 
     the funding of terrorist activities.

  Then the Attorney General goes on:

       Conditioning the filing of SARs upon a request from law 
     enforcement would undermine this purpose. By definition, SARs 
     are designed to alert law enforcement to information not 
     otherwise within its possession.

  The Paul amendment, No. 365, is very short, but what it does is say 
you must have a request of an appropriate law enforcement agency for 
the report before there is a requirement to file a suspicious activity 
report. As the Attorney General points out in his letter, that would 
totally undermine the purpose of the SAR requirement.
  Finally, the Attorney General points out the following:
  How much time do I have remaining, Madam President?
  The PRESIDING OFFICER. The Senator has 2 minutes 12 seconds.
  Mr. LEVIN. I thank the Chair.
  The Attorney General further points out:

       It is also important to note that SARs themselves are 
     confidential under law (i.e., not available to the public) 
     and cannot be used as evidence. They contain information 
     that, if used by law enforcement personnel, must be further 
     investigated and proven before adverse action is taken. The 
     reports are only made available to law enforcement, 
     intelligence, and appropriate supervisory agencies under 
     applicable authorities and are subject to the protections of 
     Federal law.

  Madam President, I ask unanimous consent to have printed in the 
Record a copy of the letter from the Attorney General.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S3398]]

                                                     Office of the

                                             Attorney General,

                                     Washington, DC, May 26, 2011.
     Hon. Harry Reid,
     Hon. Mitch McConnell,
     U.S. Senate, Washington, DC.
       Dear Leaders Reid and McConnell: I understand that Senator 
     Paul may offer an amendment today to S. 990 which would 
     modify Section 5318(g)(1) of Title 31, United States Code, to 
     allow for the issuance of Suspicious Activity Reports 
     (``SARs'') by financial institutions ``only upon request of 
     an appropriate law enforcement agency. . . .'' I write to 
     express the Department's serious concerns about such an 
       SARs are a critical tool for our national security and law 
     enforcement professionals. SARs are used to alert 
     intelligence and law enforcement personnel to issues that 
     warrant further investigation and scrutiny. The purpose of 
     the SAR regime is to require financial institutions to report 
     on suspicious activities based on information that is solely 
     within their possession. Prior to the filing of a SAR, our 
     law enforcement and intelligence analysts often are not aware 
     that a particular bank account or individual may be 
     associated with criminal activity or may be engaged in 
     activities that pose a threat to national security, such as 
     the funding of terrorist activities.
       Conditioning the filing of SARs upon a request from law 
     enforcement would undermine this purpose. By definition, SARs 
     are designed to alert law enforcement to information not 
     otherwise within its possession. By placing the onus on law 
     enforcement to request information--about which it is 
     unaware--this amendment would take away from law enforcement 
     a critical building block of financial investigations and 
     terrorist financing intelligence. In this way, the proposed 
     amendment would severely undermine the usefulness of the SAR 
     regime, and eliminate an effective tool in the fight against 
     financial fraud and, critically, terrorism.
       It is also important to note that SARs themselves are 
     confidential under law (i.e., not available to the public) 
     and cannot be used as evidence. They contain information 
     that, if used by law enforcement personnel, must be further 
     investigated and proven before adverse action is taken. The 
     reports are only made available to law enforcement, 
     intelligence, and appropriate supervisory agencies under 
     applicable authorities and are subject to the protections of 
     Federal law.
       In sum, the current SARs regime is critical to our national 
     security and law enforcement activities, while also 
     respectful of the privacy interests of Americans.
       For these reasons, I urge that the amendment not be 
                                              Eric H. Holder, Jr.,
                                                 Attorney General.

  Mr. LEVIN. Madam President, the Paul amendment would throw out the 
window a legitimate and useful law enforcement tool. It has worked 
effectively. Three courts have said it is constitutional. I hope the 
Paul amendment is tabled, and I thank the Presiding Officer.
  Mr. JOHNSON of South Dakota. Madam President, suspicious activity 
reports, or SARs, are just what they seem--reports by banks and other 
financial institutions when they come across obviously suspicious 
activity by one of their customers. They have been, and continue to be, 
valuable lead information for law enforcement in investigating and 
prosecuting terrorism, major money laundering offenses, and other 
serious crimes.
  The Bank Secrecy Act authorizes Treasury to require financial 
institutions to report suspicious activity to law enforcement. In 
response, the Treasury Department has created an extensive and 
effective system for banks, casinos, securities firms, money service 
businesses, and other financial institutions to file SARs that are 
regularly reviewed by law enforcement.
  SARs are used by the FBI, organized crime units, drug trafficking 
task forces, border security, Secret Service, State and local police, 
and more. They have enabled the prosecution of a great number of 
serious crimes over the years.
  Law enforcement agencies use SAR data daily to fight terrorist 
financing, money laundering, drug trafficking, corruption, financial 
fraud, mortgage fraud, and illicit money flows of all types. A 2009 GAO 
report gave these examples of how SARs are used:

       FBI includes SAR data in its Investigative Data Warehouse 
     to identify ``financial patterns associated with money 
     laundering, bank fraud, and other aberrant financial 
     activities.'' It uses SAR data to investigate ``criminal, 
     terrorist, and intelligence networks.''
       The Organized Crime Drug Enforcement Task Force's Fusion 
     Center combines SAR data with other data to ``produce 
     comprehensive integrated intelligence products and charts.''
       The IRS uses SARs to identify ``financial crimes, including 
     individual and corporate tax frauds, and terrorist 
       The Secret Service uses SAR data to ``map and track trends 
     in financial crimes.''

  Sharply restricting current law and longstanding practice, this 
amendment would only authorize the reporting of SARs after a law 
enforcement agency makes a specific request of a bank, money service 
business, or other entity, which would in turn require a demonstration 
that suspicious activity already exists, rendering a SARS filing moot.
  It would basically turn SARs reporting upside down by requiring law 
enforcement to establish the basis for an investigation before 
requesting a SAR, rather than relying upon a SAR to initiate or 
supplement an investigation that would then lead to a search warrant or 
  So instead of being used as leads, flagging drug or terrorism-related 
or money laundering activity for law enforcement, under the amendment 
SARSs would simply confirm suspicious activity. That would severely 
degrade their value, which is to make law enforcement aware of 
potential criminal activity.
  If the United States were to disable its SAR reporting system by 
requiring individual requests for SAR reports, it would invite the 
worst of criminals to misuse U.S. financial institutions for their 
schemes, knowing their activities would not automatically be reported 
to law enforcement. It makes no sense, especially in a context where 
there is no serious claim that these legal authorities have been 
  How does the system work now, as a practical matter? Let's say a drug 
dealer comes into a bank with $9,000 in cash and the cash reeks of 
marijuana. Under current law, the teller is trained to flag that 
transaction, and compliance officers in the bank's back office would 
assess it and likely file a SAR, to be examined by law enforcement.
  Let's say that the same person does this in four or five banks in 
town that same afternoon, with the same amounts, structured to be just 
below reporting limits, reeking of marijuana. Now he is effectively 
laundered almost $50,000 in one day. I would say we at least want to 
know about that, and the system now enables that. Under this amendment, 
that would all go by the boards.
  Let's say the person is a terrorist conspirator or arms proliferator. 
Same scenario, only this time with a twist--a series of large 
structured cash deposits in a series of banks here on the same day, 
that are then the next day wired to the same overseas account in 
Pakistan or Afghanistan or Iraq, withdrawn by a coconspirator there, 
and used to buy IEDs to hit U.S. troops.
  Would we not want those transactions at least flagged by responsible 
bank officials and assessed for patterns? I think so, and I think my 
colleagues will agree.
  If the thresholds in this amendment were implemented, very few SARs 
would be filed because there would be no reason for law enforcement to 
request that SARs be filed after identifying suspicious activity by 
other means. Law enforcement would instead obtain a search warrant to 
obtain all relevant information--i.e., the underlying bank records--
from the financial institution.
  The amendment would also cause the United States to be in 
noncompliance with international anti-money laundering and terrorist 
financing standards--for instance, the recommendations of the Financial 
Action Task Force, FATF, which require suspicious activity reporting 
when a financial institution has reasonable grounds to suspect criminal 
  This is a very serious problem. For years other countries have looked 
to us for guidance and best practices on these issues. This amendment 
would make the United States an outlier bank secrecy jurisdiction.
  SARs themselves do not unreasonably impinge on personal privacy. The 
reports are confidential and cannot be used as evidence. They contain 
allegations that must be further investigated and proven before adverse 
action is taken by law enforcement.
  The reports are only made available to law enforcement, intelligence, 
and appropriate supervisory agencies under applicable authorities and 
are subject to the protections of the Federal Privacy Act.

[[Page S3399]]

  I urge my colleagues to oppose this unwise and ill-conceived 
  Mr. UDALL of New Mexico. Mr. President, today's vote to extend 
expiring provisions of the so-called PATRIOT Act is not the first time 
Congress has extended the sunset provisions, nor will it be the last. 
In 2006, the USA PATRIOT Improvement and Reauthorization Act was passed 
and, among other things, extended until December 2009 the three 
provisions we are discussing today. When those provisions were set to 
expire, a 3-month extension was included in the Department of Defense 
Appropriations Act. Three months later, Congress passed a 1-year 
extension until February 2011. As that deadline loomed, and without 
sufficient time to have a real debate, we passed the extension that 
expires at midnight tonight.
  Immediately after the terrorist attacks of 9/11, it may have been 
understandable that our emotions made it unlikely that we would have a 
rationale and deliberative debate about the PATRIOT Act. But at the 
time, as I voted against the bill, I said on the House floor that ``the 
saving grace here is that the sunset provision forces us to come back 
and to look at these issues again when heads are cooler and when we are 
not in the heat of battle.''
  But that hasn't happened. Each time a sunset date nears, we hear a 
lot of highly charged rhetoric from Members in both parties and in both 
Chambers of Congress about how devastating it will be to our national 
security if we let the PATRIOT Act expire. I find this to be deeply 
disturbing because it demonstrates that 10 years after the attacks on 
9/11 we are still using fear to prevent an open and honest debate.
  Let's put this rhetoric aside and discuss the facts. First, the 
PATRIOT Act is not about to expire. Three provisions of the law are set 
to expire, but the vast majority of the authorities contained in the 
law will remain unchanged.
  Two of the expiring provisions were enacted as part of the PATRIOT 
Act. Section 206 of the act amended FISA to permit multipoint, or 
``roving,'' wiretaps. Section 215 enlarged the scope of materials that 
could be sought under FISA to include ``any tangible thing.'' It also 
lowered the standard required before a court order may be issued to 
compel their production. The third provision was enacted in 2004 as 
part of the Intelligence Reform and Terrorism Prevention Act, IRTPA. 
This provision changed the rules regarding the types of individuals who 
may be targets of FISA-authorized searches. Also known as the ``lone 
wolf'' provision, it permits surveillance of non-U.S. persons engaged 
in international terrorism without requiring evidence linking those 
persons to an identifiable foreign power or terrorist organization.
  Let's also be clear about what would happen if these provisions did 
expire. The two provisions from the PATRIOT Act that amended FISA 
authorities would read as they did before the PATRIOT Act was passed in 
2001. That means they would not be revoked completely but instead would 
be more limited in scope. And what would happen if the ``lone wolf'' 
provision expired? Not much. In the 7 years since its enactment, it is 
never been used.
  Even if the provisions expire, they contain exceptions for ongoing 
investigations, and the government can continue to use those provisions 
beyond the sunset date. This is what a recent CRS report says about 

       A grandfather clause applies to each of the three 
     provisions. The grandfather clauses authorize the continued 
     effect of the amendments with respect to investigations that 
     began, or potential offenses that took place, before the 
     provision's sunset date. Thus, for example, if a non-U.S. 
     person were engaged in international terrorism before the 
     sunset date of May 27, 2011, he would still be considered a 
     ``lone wolf'' for FISA court orders sought after the 
     provision has expired. Similarly, if an individual is engaged 
     in international terrorism before that date, he may be the 
     target of a roving wiretap under FISA even after authority 
     for new roving wiretaps has expired.

  Those are pretty broad exceptions, and I am fairly confident that our 
ability to protect the Nation would continue even if the three 
provisions expire. So let's put the hyperbole aside and not stoke 
irrational fears for political expediency.
  I am very disappointed that we couldn't have a candid debate and an 
opportunity to vote on several amendments. With a decade of hindsight, 
more voices from very different places on the political spectrum agree 
that the entire law bears scrutiny and debate. We should no longer 
neglect our duty to review the full scope of a law with such serious 
constitutional challenges before rushing to reauthorize it, again.
  Mr. GRASSLEY. Madam President, I support a clean reauthorization of 
the expiring provisions of the USA PATRIOT Act and against Senator 
Paul's amendment on firearms records. Over the years, I have always 
supported and defended the second amendment. I have consistently voted 
to ensure that the Federal Government does not limit the constitutional 
rights of the millions of American gun owners. I cannot support the 
amendment offered today by Senator Paul because it will damage the 
prospects of ensuring that critical national security laws are not 
reauthorized and could potentially hurt the second amendment rights of 
American citizens. In fact, the National Rifle Association said today 
in a vote alert, ``While well-intentioned, the language of this 
amendment as currently drafted raises potential problems for gun 
owners, in that it encourages the government to use provisions in 
current law that allow access to firearms records without reasonable 
cause, warrant or judicial oversight of any kind.''
  Senator Paul's amendment actually removes protections from firearms 
owners. Currently, under the PATRIOT Act, in order to obtain firearms 
records, investigators must first go through a rigorous application 
process and then seek a Federal judge's approval. Senator Paul's 
amendment would remove this judicial review.
  If Senator Paul's amendment became law and removed judicial review, 
investigators would then use a grand jury subpoena in order to obtain 
the records. A grand jury subpoena is a process that has neither a 
rigorous approval process, nor judicial review. Thus, Senator Paul's 
amendment, while intending to protect second amendment rights, actually 
backfires in that effort.
  First, let's talk about the rigorous approval process that controls 
whether firearms records can be obtained under the PATRIOT Act. And 
remember, this process does not exist under criminal law when using a 
grand jury subpoena. To obtain gun records under the PATRIOT Act, a 
section 215 order is used. The use of section 215 orders has been 
reviewed by the Department of Justice Office of Inspector General, 
which issued a report in March 2007 that outlined the existing process; 
that is, the 10 layers of review before it is even sent to a Federal 
judge are as follows:
  No. 1, the FBI field agent.
  No. 2, the FBI field office supervisor.
  No. 3, the field office's Special Agent in Charge.
  No. 4, the field office's District Counsel.
  No. 5, it is then forwarded to FBI headquarters, where it is reviewed 
by a National Security Law Branch lawyer.
  No. 6, the National Security Law Branch Supervisor.
  No. 7, the request is then sent to the Department of Justice's Office 
of Intelligence for review by a lawyer.
  No. 8, if the request survives these seven approvals, the request is 
sent back to the field office for an accuracy review.
  No. 9, the request is then approved by an Office of Intelligence 
  No. 10, then one of the three highest ranking officials in the FBI 
must personally approve the request, either the Director, the Deputy 
Director, or the Executive Assistant Director for National Security.
  After approval by the field office, the FBI's National Security Law 
Branch, the DOJ's Office of Intelligence, the field office again, and 
finally by one of the three highest officials of the FBI, then an 
Office of Intelligence lawyer presents the application package to the 
court for approval.
  A federally appointed district judge, serving on the Foreign 
Intelligence Surveillance Court, FISA, reviews the request and holds a 
hearing. At this hearing, the court can ask questions and make any 
changes the independent judge deems appropriate. If approved, the 
signed order is then returned to the FBI field office to be served by 
the agent.
  This is a very long process, and it takes, on average, over 140 days 
to get

[[Page S3400]]

a section 215 order. It requires 11 separate approvals before any 
records could be obtained. Yet Senator Paul's amendment will completely 
eliminate this investigative tool. A section 215 order provides greater 
protections of second amendment rights than the alternative, which is a 
grand jury subpoena as part of a criminal investigation.
  The alternative method of obtaining firearms records is a grand jury 
subpoena. It is rarely used as an alternative in the national security 
context. First, investigators must have a criminal nexus before it can 
seek a grand jury subpoena. This means there must be either criminal 
activity or a Federal firearms violation. Sometimes, when investigating 
terrorism, no criminal nexus exists. Senator Paul's amendment would 
prevent obtaining gun records in foreign intelligence investigations 
that have no criminal nexus.
  More often, a suspected terrorist comes across our radar long before 
he ever does anything that would rise to the level of a criminal 
violation. Senator Paul's amendment would mean that the FBI could not 
get information that a suspected terrorist is legally buying firearms 
until after he actually takes the shot or does something else criminal. 
At this point, it is too late to prevent an act of terrorism from 
  It does not make any sense to allow criminal investigators access to 
firearms records but prohibit terrorism investigators the same access. 
That scenario is why we in Congress acted to amend the law following 9/
11. This is simply another attempt to rebuild ``the wall'' between 
intelligence and criminal law that caused the failure connecting the 
dots prior to 9/11.
  Remember, these sorts of records are crucial to the early stages of a 
terror investigation. It allows the government to connect the dots. 
This authority can only be used with prior approval from a Senate-
confirmed, lifetime-appointed, independent, article 3, Federal district 
court judge. I am not sure how many more times I need to repeat the 
fact, that records are only provided after judicial review.
  Those who claim that there are no controls have not read or have not 
understood the law.
  I trust an independent judge who can, and will, say no if legal 
requirements are not met, if a request appears to over-reach, or if the 
law does not allow it.
  Judicial review is one very important safeguard in place every time a 
section 215 order is requested, which is the tool to request firearms 
records. This safeguard is over and above those that exist in criminal 
cases. A vote for the Paul amendment is a vote to take away this 
judicial review.
  No judge reviews a grand jury subpoena before it is issued. Yet, in 
more serious, national security cases, to obtain firearms records, a 
judge must approve the request and issue an order. That means it is 
more difficult to obtain records with a section 215 order in a national 
security case than it is in a less serious criminal case with a grand 
jury subpoena.
  I don't know why we insist on making it harder to investigate acts of 
terrorism than to investigate fraud and illegal drugs.
  Section 215 orders offer more protection than what the Constitution 
requires. The Supreme Court, in U.S. v. Miller, has held that business 
records, such as banking deposit slips or car rental records or 
firearms records, are not subject to fourth amendment protections 
because the customer has no reasonable expectation of privacy in 
documents that are in the possession of third parties.
  The constitutional argument that a section 215 order is an 
unreasonable search in violation of the fourth amendment is completely 
contrary to what the Supreme Court has been saying for over 35 years. 
Thus, section 215 orders offer greater protection than what the 
Constitution requires.
  There are no reported abuses of section 215 orders. And if this tool 
was being abused, people know that I would be eager to hold 
investigators accountable.
  In fact, I will pledge to work with all groups and supporters of the 
second amendment, such as the National Rifle Association, to ensure 
that PATRIOT Act authorities are not used to circumvent existing 
prohibitions on obtaining U.S. citizen gun records. I support the goal 
Senator Paul is trying to achieve, namely protecting the constitutional 
rights of all gun owners. However, his amendment goes too far.
  I urge my colleagues to oppose amendment 363 and support a clean 
extension of the expiring PATRIOT Act authorities.
  Mr. REID. Madam President, although the PATRIOT Act is not a perfect 
law, it provides our intelligence and law enforcement communities with 
crucial tools to keep our homeland safe and thwart terrorism. While I 
am disappointed we were not able to include any of the sensible 
oversight and civil liberties protections included in the bill reported 
by the Judiciary Committee with bipartisan support, I strongly support 
the Senate's effort to ensure that these important authorities do not 
  The raid that killed Osama bin Laden also yielded an enormous amount 
of new information that has spurred dozens of investigations yielding 
new leads every day. Without the PATRIOT Act, investigators would not 
have the tools they need to follow these new leads and disrupt 
terrorist plots, putting our national security at risk.
  Finally, we have worked expeditiously to pass this legislation to 
reauthorize these critical intelligence tools. If for some reason this 
bill is not enacted before May 27 and there is a brief lapse in the 
authorities, there should be no doubt that it is Congress's intent that 
this bill reauthorizes the authorities in their current form and does 
so until June 2015.
  How much time remains, Madam President?
  The PRESIDING OFFICER. There is 1 minute 22 seconds.
  Mr. REID. Who controls that time?
  The PRESIDING OFFICER. The time is controlled by the majority, and 
the Senator from Kentucky controls 2 minutes 22 seconds.
  Mr. PAUL. Madam President, I am happy to yield back the remainder of 
my time.
  Mr. REID. I yield back the majority time.

            Amendments Nos. 363 and 365 to Amendment No. 347

  Mr. REID. Madam President, I move to table the pending amendment, and 
I ask for the yeas and nays.
  The PRESIDING OFFICER. The clerk will report the amendments en bloc.
  The legislative clerk read as follows:

       The Senator from Kentucky [Mr. Paul] proposes en bloc 
     amendments numbered 363 and 365.

  The amendments are as follows:

                           Amendment No. 363

(Purpose: To clarify that the authority to obtain information under the 
   USA PATRIOT Act and subsequent reauthorizations does not include 
             authority to obtain certain firearms records)

       At the appropriate place, insert the following:


       Nothing in the USA PATRIOT Act (Public Law 107-56; 115 
     Stat. 272), the USA PATRIOT Improvement and Reauthorization 
     Act of 2005 (Public Law 109-177; 120 Stat. 192), the USA 
     PATRIOT Act Additional Reauthorizing Amendments Act of 2006 
     (Public Law 109-178; 120 Stat. 278), or an amendment made by 
     any such Act shall authorize the investigation or procurement 
     of firearms records which is not authorized under chapter 44 
     of title 18, United States Code

                           Amendment No. 365

   (Purpose: To limit suspicious activity reporting requirements to 
    requests from law enforcement agencies, and for other purposes)

         At the appropriate place, insert the following:


       Section 5318(g)(1) of title 31, United States Code, is 
     amended by inserting before the period at the end the 
     following: ``, but only upon request of an appropriate law 
     enforcement agency to such institution or person for such 

  Mr. REID. Madam President, I move to table amendment No. 363 and ask 
for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  Mr. REID. Madam President, I am not sure I was heard earlier. I ask 
unanimous consent that this vote be 15 minutes and the rest 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.

[[Page S3401]]

  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Connecticut (Mr. 
Blumenthal), the Senator from New Jersey (Mr. Menendez), and the 
Senator from New York (Mr. Schumer) are necessarily absent.
  I further announce that, if present and voting, the Senator from New 
York (Mr. Schumer) would vote ``yea.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Roberts) and the Senator from Florida (Mr. Rubio).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 85, nays 10, as follows:

                      [Rollcall Vote No. 82 Leg.]


     Brown (MA)
     Brown (OH)
     Johnson (SD)
     Johnson (WI)
     Nelson (NE)
     Nelson (FL)
     Udall (CO)
     Udall (NM)



                             NOT VOTING--5

  The PRESIDING OFFICER. On this vote, the yeas are 85, the nays are 
10. Under the previous order, 60 votes not having been cast in 
opposition to the motion to table, the amendment is withdrawn.
  The majority leader.

                           Amendment No. 365

  Mr. REID. Is amendment No. 365 pending?
  The PRESIDING OFFICER. That is the pending amendment.
  Mr. REID. Madam President, I move to table the pending Paul amendment 
No. 365, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Connecticut (Mr. 
Blumenthal), the Senator from New Jersey (Mr. Menendez), and the 
Senator from New York (Mr. Schumer) are necessarily absent.
  I further announce that, if present and voting, the Senator from New 
York (Mr. Schumer) would vote ``yea.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Roberts) and the Senator from Florida (Mr. Rubio).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 91, nays 4, as follows:

                      [Rollcall Vote No. 83 Leg.]


     Brown (MA)
     Brown (OH)
     Johnson (SD)
     Johnson (WI)
     Nelson (NE)
     Nelson (FL)
     Udall (CO)
     Udall (NM)



                             NOT VOTING--5

  The PRESIDING OFFICER. Under the previous order, 60 votes not having 
been cast in opposition to the motion to table, the amendment is 
  Under the previous order, amendment No. 348 is withdrawn.
  All postcloture time is yielded back.
  The question is on agreeing to the motion to concur with amendment 
No. 347 to the House amendment to S. 990.
  The yeas and nays have been ordered, and the clerk will call the 
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Connecticut (Mr. 
Blumenthal), the Senator from New Jersey (Mr. Menendez), and the 
Senator from New York (Mr. Schumer), are necessarily absent.
  I further announce that, if present and voting, the Senator from New 
York (Mr. Schumer) would vote ``yea.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Roberts) and the senator from Florida (Mr. Rubio).
  The PRESIDING OFFICER (Mr. Franken). Are there any Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 72, nays 23, as follows:

                      [Rollcall Vote No. 84 Leg.]


     Brown (MA)
     Johnson (SD)
     Johnson (WI)
     Nelson (NE)
     Nelson (FL)


     Brown (OH)
     Udall (CO)
     Udall (NM)

                             NOT VOTING--5

  The motion was agreed to.

                            Vote Explanation

  Mr. MENENDEZ. Mr. President, I was unavoidably detained for rollcall 
vote No. 82, a vote on the motion to table the Paul amendment No. 363 
related to firearm records. Had I been present, I would have voted 
``yea'' to the motion to table the amendment.
  Mr. President, I was also unavoidably detained for rollcall vote No. 
83, a vote on the motion to table the Paul amendment No. 365 related to 
suspicious activity reports. Had I been present, I would have voted 
``yea'' to the motion to table the amendment.
  Mr. President, further I was unavoidably detained for rollcall vote 
No. 84, adoption of the motion to concur in the House amendment to S. 
990 with the Reid amendment #347, PATRIOT Act extension. Had I been 
present, I would have voted ``yea.''
  Mr. BLUMENTHAL. Mr. President, I was unavoidably absent during 
today's vote to extend three expiring provisions of the PATRIOT ACT, 
due to my son's college graduation. I voted to extend these provisions 
earlier this year when this legislation was before the Senate Judiciary 
Committee. Had I been able to attend today's vote, I would have voted 
again with the majority to extend these provisions.
  Additionally, I would have voted to table amendment No. 363, which 
would have prohibited the use of any PATRIOT Act authorities to 
investigate or procure records relating to firearms. I would also have 
voted to table

[[Page S3402]]

amendment No. 365, which would have sharply curtailed existing rules 
that help the Treasury track the financial activities of terrorists.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, there will be no more votes today. That was 
the last vote for this week. We will have a vote on the Monday we get 
back in the evening at around 5 o'clock.