[Congressional Record: May 24, 2011 (Senate)]
[Page S3247-S3262]                        

        PATRIOT SUNSETS EXTENSION ACT OF 2011--Motion to Proceed


  Mr. WYDEN. Would my colleague yield for a question?
  Mr. UDALL of Colorado. Yes.
  Mr. WYDEN. It seems to me the Senator has laid out the case for why 
there needs to be a thoughtful debate about the PATRIOT Act and what is 
necessary to strike the key balance between fighting terrorism 
ferociously and protecting our liberties.
  I am interested in what my colleague thinks about the proposition of 
how you have a thoughtful debate on these issues, when there is secret 
law where, in effect, the interpretation of the law, as it stands 
today, is kept secret. So here we are, Senators on the floor, and we 
have colleagues of both political parties wanting to participate. 
Certainly, if you are an American, you are in Oregon or Colorado, you 
are listening in, you want to be part of this discussion. But yet the 
executive branch keeps secret how they are interpreting the law.
  What is the Senator's sense about how we have a thoughtful debate if 
that continues?
  Mr. UDALL of Colorado. The Senator from Oregon has put his finger on 
why it is so important to have a debate on the floor and not rush these 
provisions to the House because of a deadline that I think we can push 
back. We can, as you know, extend the PATRIOT Act in its present form a 
number of other days or a number of weeks in order to get this right.
  But the Senator from Oregon makes the powerful point that the law 
should not be classified--as far as its interpretation goes. Of course, 
we can protect sources and methods and operations, as we well should. 
Both of us serve on the Intelligence Committee. We are privy to some 
information that should be classified. But we have come to the floor to 
make this case because of what we have learned on the Intelligence 


  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, before my colleague leaves the Chamber, I 
wished to tell him what a welcome addition he has been to the 
Intelligence Committee. I have served on that committee for 10 years. 
We have had excellent chairs--first, Senator Roberts, then Senator 
Rockefeller, Senator Feinstein.
  So we continue to try to look for bipartisan support for trying to 
strike that balance between collective security and individual liberty. 
I am struck both by the clarity of your statement and the fact that 
those who are going to vote on these amendments and the American people 
who are listening in tonight ought to be able to get, in a 
straightforward, easy-to-access fashion, how the executive branch is 
currently interpreting the PATRIOT Act.
  The fact is, law professors give assignments to their students to 
write analyses of the PATRIOT Act. The Congressional Research Service 
actually has an analysis out. But it is not possible to get the 
official interpretation of how the U.S. Government frames this law as 
far as the operations are so essential for our country. The Senator has 
laid it out very well. It is a pleasure to serve with him on the 
Intelligence Committee.
  Mr. President, let me sum up with what this issue has come down to, 
to me.
  These are dangerous times. If you go into the Intelligence Committee 
several times a week, as Senator Udall and I do, you come away with the 
indisputable judgment that there are threats to the well-being of this 
country, that there are people who do not wish our citizens well. In 
these dangerous times, the sources and methods of our antiterror 
operations absolutely must be kept secret. That is fundamental to the 
work of the intelligence community--keeping the sources and methods of 
those who serve us so gallantly secret and ensuring that they are as 
safe as possible.
  But while we protect those sources and methods, the laws that 
authorize them should not be kept secret from the American people. That 
is what this is all about--whether the laws that authorize the 
operations that are so essential, which have been passed by the 
Congress--that their interpretation should be kept secret from the 
American people. I call it ``secret law.'' I want to say to this body, 
yes, we need secret operations, but secret law is bad for our 
democracy. It will undermine the confidence the American people have in 
our intelligence operations.
  You might recall that it was only a few years ago, during the Bush 
administration, that they secretly reinterpreted the warrantless 
wiretapping statutes to say that it was possible to wiretap our people 
without a warrant. When it came out, it took years to sort that out, 
with the executive branch and the Congress working together. I don't 
want to see that happen again. So that is why I have joined Senator 
Udall in these amendments, and we hope we can get bipartisan support 
for what we are trying to do and especially ensure that the official 
interpretation of the PATRIOT Act, an important intelligent statute, is 
made public to the American people, and I think it can be done in a way 
without jeopardizing our sources and methods.
  One of the reasons Senator Udall, I, and others feel so strongly 
about this is--and Senator Udall touched on this--that this is a time 
when Congress should finally say we are not just going to keep kicking 
the can down the road. That is what has been done again and again over 
the last decade. The PATRIOT Act was passed a decade ago, during a 
period of understandable fear, having suffered in our Nation the 
greatest terrorist attack in our history. So the PATRIOT Act was born 
out of those great fears.
  It seems to me that now is the time to revisit that and ensure that a 
better job is done of striking the balance between fighting terror and 
protecting individual liberty. Unfortunately, every time over the last 
decade there has been an effort to do just that--revisit this and 
strike a better balance--we have had the same pattern; we have said we 
just have to get it done quickly and we really don't have any time to 
consider, for example, the thoughtful ideas Senator Udall has 
mentioned. I just don't think it is time now to once again put off a 
real debate on the PATRIOT Act for yet another always-distant day.
  There is an irony about what this is all about, and that is that 
Senators are going to want to consider the amendments of Senator 
Udall--and I believe Senator Paul is here, and others who care strongly 
about this. It is awfully hard to have a thoughtful debate on these 
specific amendments, whether it is the Leahy amendment, the Paul 
amendment, the Udall amendment, or the ones we have together, if, in 
fact, you cannot figure out how the executive branch is interpreting 
the law.
  An open and informed debate on the PATRIOT Act requires that we get 
beyond the fact that the executive branch relies on the secret legal 
interpretations to support their work, and Members of the Senate try to 
figure out what those interpretations are.
  Here are the rules. If a U.S. Senator wants to go to the Intelligence 
Committee--and I think Senator Udall touched on this--the Senator can 
go there and get a briefing. Many Members of Congress, however, don't 
have staff members who are cleared for those kinds of briefings. Under 
Senate rules, it is not possible for Senators to come down here and 
discuss what they may have picked up in one of those classified 
  I just don't think, with respect to the legal interpretation, that is 
what the American people believe we ought to be doing. The American 
people want secret operations protected. They understand what sources 
and methods are all about and that we have to have secrecy, for 
example, for those in the intelligence community to get the information 
we need about sleeper cells and terrorist groups and threats we learn 
about in the Intelligence Committee. But that is very different from 
keeping these legal interpretations secret.
  In my view, the current situation is simply unacceptable. The 
American people recognize that their government can better protect 
national security if it sometimes is allowed to operate in secrecy. 
They certainly don't expect the executive branch to publish every 
detail about how intelligence is collected. Certainly, Americans never 
expected George Washington to tell them about his plans for observing 
troop movement at Yorktown. But Americans have always expected their 
government to operate within the boundaries of publicly understood law. 
As voters, they certainly have a right to know how the law is being 
interpreted so that the American people can ratify or reject decisions 
made on their behalf. To put it another way, Americans know their 
government will sometimes conduct secret operations, but they

[[Page S3260]]

don't believe the government ought to be writing secret law.
  The reason we have felt so strongly about this issue of secret law is 
that it violates the trust Americans place in their government and it 
undermines public confidence in government agencies and institutions, 
making it harder to operate effectively. I was on the Intelligence 
Committee, before Senator Udall joined us, when Americans were pretty 
much stunned to learn the Bush administration had been secretly 
claiming for years that warrantless wiretapping was legal. My own view 
was that disclosure significantly undermined the public trust in the 
Department of Justice and our national intelligence agencies. Our 
phones were ringing off the hook for days when the American people 
learned about it. The Congress and executive branch had to retrench and 
figure out how to sort it out.
  I certainly believe the public will be surprised again when they 
learn about some of the interpretations of the PATRIOT Act. Government 
officials cannot hope to indefinitely prevent the American people from 
learning the truth. This is going to come out, colleagues. It is going 
to come out at some point, just as it came out during the Bush 
administration about warrantless wiretapping. It is going to come out. 
It is not going to be helpful to the kind of dialog we want to have 
with the American people, an open and honest dialog, to just continue 
this practice of secret law.
  The reason I am offering or seeking to offer this amendment with 
Senator Udall, Senator Merkley, and other colleagues with respect to 
changing the practice of secret law is that we have raised this issue 
numerous times--on the Senate floor, in correspondence, in meetings 
with senior administration officials--and I have been joined in the 
past by other Senators, and we talked about it with respect to the 
problem in the news media. But the problem persists and the gap between 
the public's understanding of the PATRIOT Act and the government's 
secret interpretation of it remains today. Once information has been 
labeled ``secret,'' there is a strong bureaucratic tendency--it almost 
gets in the bureaucratic chromosomes to keep it secret and not revisit 
the original decision.
  So what Senator Udall and I and colleagues seek to do is correct this 
problem. We seek to offer an amendment that states that it is entirely 
appropriate for particular intelligence collection techniques to be 
kept secret but that the laws that authorize these techniques should 
not be kept secret and should instead be transparent to the public. We 
seek to offer an amendment that states that U.S. Government officials 
should not secretly reinterpret public laws and statutes in a manner 
that is inconsistent with the public's understanding of these laws or 
describe the execution of these laws in a way that misinforms or 
misleads the public.
  So under this proposal, the Attorney General and Director of National 
Intelligence would--and we note this--provide a classified report to 
the congressional intelligence committees. It makes it clear that 
intelligence collection continues to go forward, and our amendment 
would simply require the Attorney General to publicly lay out the legal 
basis for the intelligence activities described in the report. The 
amendment specifically directs the Attorney General not to describe 
specific collection, programs, or activities, but simply to fully 
describe the legal interpretations and analyses necessary to understand 
the government's official interpretation of the law.
  Let me close--I see colleagues waiting to speak--and say that we can 
have honest and legitimate disagreements about exactly how broad 
intelligence collection authorities ought to be, and members of the 
public do not expect to know all of the details about how those 
authorities are used, but I hope each Senator would agree that the law 
itself should not be kept secret and that the government should always 
be open and honest with the American people about what the law means. 
All that Senator Udall and I seek to do, along with other colleagues, 
is to restore some of that openness and honesty in an area where it is 
now needed. I hope colleagues on the floor of the Senate and in the 
Obama administration will join in that effort.



[Congressional Record: May 24, 2011 (Senate)]
[Page S3281-S3286]


  SA 339. Mr. WYDEN (for himself, Mr. Udall of Colorado, Mr. Merkley, 
and Mr. Udall of New Mexico) submitted an amendment intended to be 
proposed by him to the bill S. 1038, to extend the expiring provisions 
of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the 
Intelligence Reform and Terrorism Prevention Act of 2004 until June 1, 
2015, and for other purposes; which was ordered to lie on the table; as 

       At the end, add the following:


       (a) Sense of Congress.--It is the sense of Congress that--
       (1) in democratic societies, citizens rightly expect that 
     their government will not arbitrarily keep information secret 
     from the public but instead will act with secrecy only in 
     certain limited circumstances;
       (2) the United States Government has an inherent 
     responsibility to protect American citizens from foreign 
     threats and sometimes relies on clandestine methods to learn 
     information about foreign adversaries, and these intelligence 
     collection methods are often most effective when they remain 
       (3) American citizens recognize that their government may 
     rely on secret intelligence sources and collection methods to 
     ensure national security and public safety, and American 
     citizens also expect intelligence activities to be conducted 
     within the boundaries of publicly understood law;
       (4) it is essential for the American public to have access 
     to enough information to determine how government officials 
     are interpreting the law, so that voters can ratify or reject 
     decisions that elected officials make on their behalf;
       (5) it is essential that Congress have informed and open 
     debates about the meaning of existing laws, so that members 
     of Congress are able to consider whether laws are written 
     appropriately, and so that members of Congress may be held 
     accountable by their constituents;
       (6) United States Government officials should not secretly 
     reinterpret public laws and statutes in a manner that is 
     inconsistent with the public's understanding of these laws, 
     and should not describe the execution of these laws in a way 
     that misinforms or misleads the public;
       (7) On February 2, 2011, the congressional intelligence 
     committees received a secret report from the Attorney General 
     and the Director of National Intelligence that has been 
     publicly described as pertaining to intelligence collection 
     authorities that are subject to expiration under section 224 
     of the USA PATRIOT Act (Public Law 107-56; 115 Stat. 295); 
       (8) while it is entirely appropriate for particular 
     intelligence collection techniques to be kept secret, the 
     laws that authorize such techniques, and the United States 
     Government's official interpretation of these laws, should 
     not be kept secret but should instead be transparent to the 
     public, so that these laws can be the subject of informed 
     public debate and consideration.
       (b) Report.--Not later than 60 days after the date of the 
     enactment of this Act, the Attorney General shall publish in 
     the Federal Register a report--
       (1) that details the legal basis for the intelligence 
     collection activities described in the February 2, 2011, 
     report to the congressional intelligence committees; and
       (2) that does not describe specific intelligence collection 
     programs or activities, but that fully describes the legal 
     interpretations and analysis necessary to understand the 
     United States Government's official interpretation of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
     et seq.).