Statement of U.S. Senator Russ Feingold From the Senate Floor
On the Reauthorization of the USA PATRIOT Act
December 14, 2005
Mr. President, I want to commend my colleagues who came to the floor
yesterday to discuss Patriot Act reauthorization, and I want to thank
Chairman Specter for initiating a very interesting debate with me when
we were both on the floor. That is exactly the kind of dialogue we need
to see on this floor more often, and I hope we will see a lot of it
over the next few days.
The Patriot Act reauthorization conference report will likely come
over to the Senate today, and the Senate will be faced with a very important
choice. I expect this debate will be lengthy and hard fought. So I wanted
to take some time today to lay out the background and the context for
this debate, and to discuss my concerns about the conference report
with some specificity.
Mr. President, because I was the only Senator to vote against the Patriot
Act in 2001, I want to be very clear from the start. I am not opposed
to reauthorization of the Patriot Act. I supported the bipartisan, compromise
reauthorization bill that the Senate passed earlier this year without
a single Senator objecting. I believe that bill should become law. The
Senate reauthorization bill is not a perfect bill, but it is a good
bill. If that were the bill we were considering today, I would be here
on the floor speaking in support of it. In fact, we could have reauthorized
the Patriot Act months ago if the House had taken up the bill that the
Senate approved without any objections.
I also want to respond to those who argue that people who are demanding
a better conference report want to let the Patriot Act expire. That
is nonsense. Not a single member of this body is calling for any provision
of the Patriot Act to expire. As Senator Sununu eloquently argued yesterday,
just because we are coming up against the end of the year does not mean
we should have to compromise the rights of law-abiding Americans. There
are any number of ways that we can get this done and get it done right
before the end of the year.
Let me also be clear about how we ended up voting on a badly flawed
conference report just days before certain provisions of the Patriot
Act expire. The only reason that we are debating this conference report
in the middle of December, rather than the middle of September or October,
is because the House refused to appoint its conferees for three and
a half months. It passed its reauthorization bill on July 21, but didn’t
appoint conferees until November 9. In the Senate, on the other hand,
we passed a bill by unanimous consent on July 29 and appointed conferees
the very same day. We were ready and willing to start the process of
resolving our differences with the House right away, leaving plenty
of time to get this done without the pressure of the end of the year
deadline.
So when I hear members of the House already attempting to place blame
on those of us in the Senate who object to this conference report, I
am a bit frustrated. If there is anyone to blame, it is the House leadership,
for playing a game of brinksmanship with this crucial and controversial
issue. Senators who are standing strong for the rights and freedoms
of the American people will not be at fault if parts of the Patriot
Act expire.
I also want to clear up one related misconception. I have never advocated
repeal of any portion of the Patriot Act. In fact, as I have said repeatedly
over the past four years, I supported most of that bill. There are many
good provisions in that bill. As my colleagues know, the Patriot Act
did a lot more than expand our surveillance laws. Among other things,
it set up a national network to prevent and detect electronic crimes,
like the sabotage of the nation's financial sector; it established a
counterterrorism fund to help Justice Department offices disabled in
terrorist attacks keep operating; and it changed the money laundering
laws to make them more useful in disrupting the financing of terrorist
organizations. One section even condemned discrimination against Arab
and Muslim Americans.
Even some of the Act’s surveillance sections were not troubling.
One provision authorized the FBI to expedite the hiring of translators.
Another added terrorism and computer crimes to the list of crimes for
which criminal wiretap orders could be sought. And some provisions helped
to bring down what has been termed “the wall” that had built
up between intelligence and law enforcement agencies.
This week we’ve heard a lot of people saying that we must reauthorize
the Patriot Act in order to ensure that the wall does not go back up.
So let me make this clear. I supported the information sharing provisions
of the Patriot Act. One of the key lessons we learned in the wake of
September 11 was that our intelligence and law enforcement agencies
were not sharing information with each other, even where the statutes
permitted it. In the Patriot Act, we tore down the remaining legal barriers.
Unfortunately, the wall was not so much a legal problem as it was a
problem of culture. The report of the 9/11 Commission made that clear.
And I’m sorry to report that we have not made as much progress
as we should have in bringing down those very significant cultural barriers
to information sharing among our agencies. The 9/11 Commission report
card that was issued last week gave the government a “D”
for information sharing because our agencies’ cultures have not
changed enough. As the statement issued by Chairman Kean and Vice Chairman
Hamilton explained, “You can change the law, you can change the
technology, but you still need to change the culture. You still need
to motivate institutions and individuals to share information.”
And so far, our government has not met this challenge.
Talking about the importance of information sharing, as Administration
officials and other supporters of the conference report have done repeatedly,
is part of a pattern that started several years ago. Rather than engage
in a true debate on the controversial parts of the Patriot Act, as Senator
Specter did yesterday, many proponents of the Patriot Act just point
to non-controversial provisions of the Patriot Act and talk about how
important they are. They say this bill must be passed because it reauthorizes
those non-controversial provisions. That does not advance the debate,
it just muddies the waters. I have news for those who would try that
tactic here. It won’t work. We don’t have to accept bad
provisions to make sure the good provisions become law. I hope the Senate
will make that lesson very clear this week.
Mr. President, today I do want to advance the debate. I want to spend
some time explaining my specific concerns with the conference report
in some key areas. It is very unfortunate that the whole Congress could
not come together as the Senate did around the bipartisan, compromise
reauthorization bill. Back in July, the Senate Judiciary Committee voted
unanimously in favor of a reauthorization bill that made meaningful
changes to the most controversial provisions of the Patriot Act to protect
the rights and freedoms of innocent Americans. Shortly thereafter, that
bill passed the full Senate by unanimous consent.
It was not easy for me to support that Senate bill, which fell short
of the improvements contained in the bipartisan SAFE Act. But at the
end of the day, the Senate bill contained meaningful changes to some
of the most problematic provisions of the Patriot Act – provisions
that I have been trying to fix since October 2001 -- and I decided to
support it. I made it very clear at the time, however, that I viewed
that bill as the end point of negotiations, not the beginning. In fact,
I specifically warned my colleagues “that the conference process
must not be allowed to dilute the safeguards in this bill.” Mr.
President, I meant it, but it appears that people either weren’t
listening or weren’t taking me seriously. This conference report,
unfortunately, does not contain many important reforms to the Patriot
Act that we passed here in the Senate. So I cannot support it. I will
fight it with every ounce of strength I have and I am delighted to be
part of a strong bipartisan consensus that believes, as I do, that this
conference report is unacceptable.
Let me start with Section 215, the so-called “library”
provision, which has received so much public attention. I remember when
the former Attorney General of the United States called the librarians
who were expressing disagreement with this provision “hysterical.”
What a revelation it was when the Chairman of the Judiciary Committee,
the Senator from Pennsylvania, opened his questioning of the current
Attorney General during his confirmation hearing by expressing concern
about this provision of the Patriot Act. He got the Attorney General
to concede that yes, in fact, this provision probably went a bit too
far and could be improved and clarified. That was an extraordinary moment.
It was a moment that was very slow in coming, and long overdue. And
I give credit to the Senator from Pennsylvania because it allowed us
to start having a real debate on the Patriot Act. But credit also has
to go to the American people who stood up, despite the dismissive and
derisive comments of government officials, and said with loud voices
– the Patriot Act needs to be changed.
These voices came from the left and the right, from big cities and
small towns all across the country. So far, over 400 state and local
government bodies have passed resolutions calling for revisions to the
Patriot Act. I plan to read some of those resolutions on the floor during
this debate. There are a lot of them. And nearly every one mentions
Section 215. Section 215 is at the center of this debate over the Patriot
Act. It is also one of the provisions that I tried unsuccessfully to
amend here on this floor in October 2001. So it makes sense to start
my discussion of the specific problems I have with the conference report
with the infamous “library” provision.
Section 215 of the Patriot Act allows the government to obtain secret
court orders in domestic intelligence investigations to get all kinds
of business records about people, including not just library records,
but also medical records and various other types of business records.
The Patriot Act allowed the government to obtain these records as long
as they were "sought for" a terrorism investigation. That’s
a very low standard. It didn’t require that the records concern
someone who was suspected of being a terrorist or spy, or even suspected
of being connected to a terrorist or spy. It didn’t require any
demonstration of how the records would be useful in the investigation.
Under Section 215, if the government simply said it wanted records for
a terrorism investigation the secret FISA court was required to issue
the order -- period. To make matters worse, recipients of these orders
are also subject to an automatic gag order. They cannot tell anyone
that they have been asked for records.
Now some in the Administration, and even in this body, took the position
that people shouldn’t be able to criticize these provisions until
they could come up with a specific example of “abuse.” The
Attorney General makes that same argument today in an op-ed in the Washington
Post when he dismisses concerns about the Patriot Act by saying that
“[t]here have been no verified civil liberties abuses in the four
years of the act's existence.” That has always struck me as a
strange argument since 215 orders are issued by a secret court and people
who receive them are prohibited by law from discussing them. In other
words, the law is designed so that it’s almost impossible to know
if abuses have occurred.
The government should not have the kind of broad, intrusive powers
it gave itself in Section 215. And the American people shouldn’t
have to live with a poorly drafted provision that clearly allows for
the records of innocent Americans to be searched and just hope that
the government uses it with restraint. A government of laws doesn’t
require its citizens to rely on the good will and good faith of those
who have these powers -- especially when adequate safeguards can be
written into the laws without compromising their usefulness as a law
enforcement tool.
After lengthy and difficult negotiations, the Judiciary Committee came
up with language that achieved that goal. It would require the government
to convince a judge that a person has some connection to terrorism or
espionage before obtaining their sensitive records. And when I say some
connection, that’s what I mean. The Senate bill’s standard
is the following: (1) that the records pertain to a terrorist or spy;
(2) that the records pertain to an individual in contact with or known
to a suspected terrorist or spy; or (3) that the records are relevant
to the activities of a suspected terrorist or spy. That’s the
three prong test in the Senate bill and I think it is quite broad, and
more than adequate to give law enforcement the power it needs to conduct
investigations, while also protecting the rights of innocent Americans.
It would not limit the types of records that the government could obtain,
and it does not go as far to protect law-abiding Americans as I might
prefer, but it would make sure the government cannot go on fishing expeditions
into the records of innocent people.
The Senate bill also would give recipients of a 215 order an explicit,
meaningful right to challenge business record orders and the accompanying
gag orders in court. These provisions passed the Senate Judiciary Committee
unanimously after tough negotiations late into the night.
The conference report did away with this delicate compromise. First,
and most importantly, it does not contain the critical modification
to the standard for Section 215 orders. The Senate bill permits the
government to obtain business records only if it can satisfy one or
more prongs of the three prong test. This is a broad standard with a
lot of flexibility. But it retains the core protection that the government
cannot go after someone who has no connection whatsoever to a terrorist
or spy or their activities.
The conference replaces the three prong test with a simple relevance
standard. It then provides a presumption of relevance if the government
meets one of the three prongs. It is silly to argue that this is adequate
protection against a fishing expedition. The only actual requirement
in the conference report is that the government show that those records
are relevant to an authorized intelligence investigation. Relevance
is a very broad standard that could arguably justify the collection
of all kinds of information about law-abiding Americans. The three prongs
now are just examples of how the government can satisfy the relevance
standard. That is not simply a loophole or an exception that swallows
the rule. The exception is the rule.
I’ll try to make this as straightforward as I can. The Senate
bill requires the government to satisfy one of three tests. Each test
requires some connection between the records and a suspected terrorist
or spy. The conference report says that the government only is required
to satisfy a new, fourth test, which is relevance, and which does not
require a connection between the records and a suspect. The other three
tests no longer provide any protections at all.
The conference report also does not authorize judicial review of the
gag order that comes with a Section 215 order. While some have argued
that the review by the FISA court of a government application for a
Section 215 order is equivalent to judicial review of the accompanying
gag order, that is simply inaccurate. The statute does not give the
FISA court any latitude to make an individualized decision about whether
to impose a gag order when it issues a Section 215 order. It is required
by statute to include a gag order in every Section 215 order. That means
the gag order is automatic and permanent in every case. This is a serious
deficiency, one that very likely violates the First Amendment. In litigation
challenging a similar permanent, automatic gag rule in a National Security
Letter statute, two courts have found First Amendment violations because
there is no individualized evaluation of the need for secrecy. I have
those decisions here. Perhaps I’ll have a chance to read them
during this debate.
Mr. President, I’m now going to discuss other provisions of
the conference report that fail to adequately address the concerns expressed
in this body, and around the country, about the Patriot Act. But Section
215 really is a lynchpin of this debate. To keep faith with the American
people and with our constitutional heritage, we have to address the
problems with Section 215 in this reauthorization bill. There really
is no way around that.
Mr. President, let me turn next to a very closely related provision
that has finally been getting the attention it deserves: National Security
Letters, or NSLs, an authority that was expanded by Sections 358 and
505 of the Patriot Act. This NSL issue has flown under the radar for
years, even though many of us have been trying to bring more public
attention to it. I’m gratified that we are finally talking about
NSLs, in large part due to a lengthy Washington Post story published
last month explaining just what these authorities are and reporting
that use of these powers have increased dramatically.
What are NSLs, and why are they such a concern? Let me spend a little
time on this because it really is important.
National Security Letters are issued by the FBI to businesses to obtain
certain types of records. So they are similar to Section 215 orders,
but with one very critical difference. The government does not need
to get any court approval whatsoever to issue them. It doesn’t
have to go to the FISA court and make even the most minimal showing,
it simply issues the order signed by the Special Agent in Charge of
a Field Office or some other supervisory official.
NSLs can only be used to obtain certain categories of business records,
while Section 215 orders can be used to obtain “any tangible thing.”
But even the categories reachable by an NSL are quite broad. Specifically,
NSLs can be used to obtain three types of business records: subscriber
and transactional information related to Internet and phone usage; credit
reports; and financial records, a category that has been expanded to
include records from all kinds of everyday businesses like jewelers,
car dealers, travel agents and even casinos.
Just as with Section 215, the Patriot Act expanded the NSL authorities
to allow the government to use them to obtain records of people who
are not suspected of being, or even connected to, terrorists or spies.
The government need only certify that the documents are either sought
for or relevant to an authorized intelligence investigation, a far-reaching
standard that could be used to obtain all kinds of records about innocent
Americans. And just as with Section 215, the recipient is subject to
an automatic, permanent gag rule.
The conference report does little to fix the problems with the National
Security Letter authorities. In fact, it could be argued that it makes
the law worse. Let me explain why.
First, the conference report does nothing to fix the standard for issuing
an NSL. It leaves in place the breathtakingly broad relevance standard.
Now, some have analogized NSLs to grand jury subpoenas, which are issued
by grand juries in criminal investigations to obtain records that are
relevant to the crime they are investigating. So, the argument goes,
what is the big deal if NSLs are also issued under a relevance standard
for intelligence investigations?
Two critical differences make that analogy break down very quickly.
First of all, the key question is: Relevant to what? In criminal cases,
grand juries are investigating specific crimes, the scope of which is
explicitly defined in the criminal code. Although the grand jury is
quite powerful, the scope of its investigation is limited by the particular
crime it is investigating. In sharp contrast, intelligence investigations
are, by definition, extremely broad. When you are gathering information
in an intelligence investigation, anything could potentially be relevant.
Suppose the government believes a suspected terrorist visited Los Angeles
in the last year or so. It might then want to obtain and keep the records
of everyone who has stayed in every hotel in L.A., or booked a trip
to L.A. through a travel agent, over the past couple years, and it could
argue strongly that that information is relevant to a terrorism investigation
because it would be useful to run all those names through the terrorist
watch list.
Now, I don’t have any reason to believe that such broad use of
NSLs is happening. But the point is that when you are talking about
intelligence investigations, “relevance” is a very different
concept than in criminal investigations. It is certainly conceivable
that NSLs could be used for that kind of broad dragnet in an intelligence
investigation. Nothing in current law prevents it. The nature of criminal
investigations and intelligence investigations is different, and let’s
not forget that.
Second, the recipients of grand jury subpoenas are not subject to the
automatic secrecy that NSL recipients are. We should not underestimate
the power of allowing public disclosure when the government overreaches.
In 2004, federal officials withdrew a grand jury subpoena issued to
Drake University for a list of participants in an antiwar protest because
of public revelations about the demand. That could not have happened
if the request had been under Section 215 or for records available via
the NSL authorities.
Unfortunately, there are many other reasons why the conference report
does so little good on NSLs. Let’s talk next about judicial review.
The conference report creates the illusion of judicial review for NSLs,
both for the letters themselves and for the accompanying gag rule, but
if you look at the details, it is drafted in a way that makes that review
virtually meaningless. With regard to the NSLs themselves, the conference
report permits recipients to consult their lawyer and seek judicial
review, but it also allows the government to keep all of its submissions
secret and not share them with the challenger, regardless of whether
there are national security interests at stake. So you can challenge
the order, but you have no way of knowing what the government is telling
the court in response to your challenge. The parties could be arguing
about something as garden variety as attorney-client privilege, with
no national security issues, and the government would have the ability
to keep its submission secret. That is a serious departure from our
usual adversarial process, and it is very disturbing.
The other significant problem with the judicial review provisions is
the standard for getting the gag rule overturned. In order to prevail,
the recipient has to prove that any certification by the government
that disclosure would harm national security or impair diplomatic relations
was made in bad faith. This is a standard of review that is virtually
impossible to meet. So what we have is the illusion of judicial review.
When you look behind the words in the statute, you realize it’s
just a mirage.
I also want to take a moment to address, again, an argument made yesterday
by the Senator from Pennsylvania about the NSL provisions of the conference
report. He argued that many of the complaints I have about the NSL provisions
of the conference report apply equally to the NSL provisions of the
Senate bill. And because I supported the Senate bill, by some convoluted
theory my complaints are therefore invalid and I should support the
conference report.
Mr. President, as I said yesterday, that just makes no sense. The
NSL section of the Senate bill was one of the worst sections of the
bill. I didn’t like it then, and I don’t like it now. But
in the context of the larger package of reforms that were in the Senate
bill, including the important changes to Section 215 that I talked about
earlier and the new time limit on “sneak and peek” search
warrants that I will talk about in a moment, I was able to accept that
NSL section even though I would have preferred additional reforms.
Now, the argument was made yesterday that after supporting a compromise
package for its good parts, I am supposed to accept a conference report
that has the bad parts of the package even though the good parts have
been stripped out. That is just nonsense, and every member of this chamber
who has ever agreed to a compromise – and I must assume that includes
every single one of us – knows it.
The other point I want to emphasize here is that the Senate bill was
passed before the Post reported that there has been extensive use of
NSLs and the difficulties that the gag rule poses for businesses that
feel they are being unfairly burdened by them. At the very least, I
would think that an NSL sunset provision is justified. But the conferees
refused to make that change. Nor would they budge at all on the absurdly
difficult standard of review, the so-called conclusive presumption.
I suspect, Mr. President, that the NSL power is something that the Administration
is zealously guarding because it is one area where there is almost no
judicial involvement or oversight. It is the last refuge for those who
want virtually unlimited government power in intelligence investigations.
And that is why the Congress should be very concerned, and very insistent
on making the reasonable changes we have suggested.
Mr. President, we had an interesting discussion on the floor yesterday
about the issue of “sneak and peek” searches. This is another
area where the conference report departs from the Senate’s compromise
language, and another reason that I must oppose the conference report.
Yesterday, the Senator from Pennsylvania made what seems on the surface
to be an appealing argument. He says that the Senate bill requires notice
of a sneak and peek search within 7 days of the search, and the House
said 180 days. The conference compromised on 30 days. “That’s
a good result,” he says. “They came down 150 days, we went
up only 23. What’s wrong with that?”
Let me take a little time to put this issue in context and explain
why this isn’t just a numbers game -- an important constitutional
right is at stake.
One of the most fundamental protections in the Bill of Rights is the
Fourth Amendment’s guarantee that all citizens have the right
to “be secure in their persons, houses, papers, and effects”
against “unreasonable searches and seizures.” The idea that
the government cannot enter our homes improperly is a bedrock principle
for Americans, and rightly so. The Fourth Amendment has a rich history
and includes in its ambit some very important requirements for searches.
One is the requirement that a search be conducted pursuant to a warrant.
The Constitution specifically requires that a warrant for a search be
issued only where there is probable cause and that the warrant specifically
describe the place to be searched and the persons or things to be seized.
Why does the Constitution require that particular description? Well,
for one thing, that description becomes a limit on what can be searched
or what can be seized. If the magistrate approves a warrant to search
someone’s home and the police show up at the person’s business,
that search is not valid. If the warrant authorizes a search at a particular
address, and the police take it next door, they have no right to enter
that house. But of course, there is no opportunity to point out that
the warrant is inadequate unless that warrant is handed to someone at
the premises. If there is no one present to receive the warrant, and
the search must be carried out immediately, most warrants require that
they be left behind at the premises that were searched. Notice of the
search is part of the standard Fourth Amendment protection. It’s
what gives meaning, or maybe we should say “teeth,” to the
Constitution’s requirement of a warrant and a particular description
of the place to be searched and the persons or items to be seized.
Over the years, the courts have had to deal with government claims
that the circumstances of a particular investigation require a search
without notifying the target prior to carrying out the search. In some
cases, giving notice would compromise the success of the search by leading
to the flight of the suspect or the destruction of evidence. The two
leading cases on so-called surreptitious entry, or what have come to
be known as “sneak and peek” searches, came to very similar
conclusions. Notice of criminal search warrants could be delayed, but
not omitted entirely. Both the Second Circuit in U.S. v. Villegas and
the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant
must provide that notice of the search will be given within seven days,
unless extended by the court. Listen to what the Freitas court said
about such searches:
We take this position because surreptitious searches and seizures of
intangibles strike at the very heart of the interests protected by the
Fourth Amendment. The mere thought of strangers walking through and
visually examining the center of our privacy interest, our home, arouses
our passion for freedom as does nothing else. That passion, the true
source of the Fourth Amendment, demands that surreptitious entries be
closely circumscribed.
So when defenders of the Patriot Act say that sneak and peek searches
were commonly approved by courts prior to the Patriot Act, they are
partially correct. Some courts permitted secret searches in very limited
circumstances, but they also recognized the need for prompt notice unless
a reason to continue to delay notice was demonstrated. And they specifically
said that notice had to occur within seven days.
Section 213 of the Patriot Act didn’t get this part of the balance
right. It allowed notice to be delayed for any reasonable length of
time. Information provided by the Administration about the use of this
provision indicates that delays of months at a time are now becoming
commonplace. Those are hardly the kind of delays that the courts had
been allowing prior to the Patriot Act.
The sneak and peek power in the Patriot Act caused concern right from
the start. And not just because of the lack of a time-limited notice
requirement. The Patriot Act also broadened the justifications that
the government could give in order to obtain a sneak and peek warrant.
It included what came to be known as the “catch-all” provision,
which allows the government to avoid giving notice of a search if it
would “seriously jeopardize an investigation.” Some think
that that justification in some ways swallows the requirement of notice
since most investigators would prefer not to give notice of a search
and can easily argue that giving notice will hurt the investigation.
The SAFE Act worked to fix both of the problems. First, it tightened
the standard for justifying a sneak and peek search to a limited set
of circumstances – when advance notice would endanger life or
property, or result in flight from prosecution, the intimidation of
witnesses, or the destruction of evidence. Second, it required notice
within seven days, with an unlimited number of 21-day extensions if
approved by the court.
The Senate bill was a compromise. It kept the catch-all provision as
a justification for obtaining a sneak and peek warrant. Those of us
who were concerned about that provision agreed to accept it in return
for getting the seven-day notice requirement. And we accepted unlimited
extensions of up to 90 days at a time. The key thing was prompt notice
after the fact, or a court order that continuing to delay notice was
justified.
So that’s the background to the numbers game that the Senator
from Pennsylvania and other supporters of the conference report point
to. They want credit for walking the House back from its outrageous
position of 180 days, but they refuse to recognize that the sneak and
peek provision still has the catch-all justification, and unlimited
90-day extensions. And here is the crucial question that they refuse
to answer. What possible rationale is there for not requiring the government
to go back to a court after seven days and demonstrate a need for continued
secrecy? Why insist that the government get thirty days free without
getting an extension? Could it be that they think that the courts usually
won’t agree that continued secrecy is needed after the search
is conducted, so they won’t get the 90-day extension? If they
have to go back to a court at some point, why not go back after seven
days rather than 30? From the point of view of the government, I don’t
see the big deal. But from the point of view of someone whose house
has been secretly searched, there is a big difference between one week
and a month.
Suppose, for example, that the government actually searched the wrong
house – as I mentioned, that’s one of the reasons that notice
is a Fourth Amendment requirement. The innocent owner of the place that
had been searched might suspect that someone had broken in, might be
living in fear that someone has a key or some other way to enter. Should
we make that person wait a month to get an explanation rather than a
week? Presumably if the search revealed nothing, and especially if the
government realized the mistake and does not intend to apply for an
extension, it will be no hardship, other than embarrassment, for notice
to be given within seven days.
So Mr. President, that is why I’m not persuaded by the numbers
game. The Senate bill was already a compromise on this very controversial
provision. And there is no good reason not to adopt the Senate’s
provision. No one has come forward and explained why the government
can’t come back to the court within seven days of executing the
search.
Let me put it to you this way: If the House had passed a provision
that allowed for notice to be delayed for 1,000 days, would anyone be
boasting about a compromise that requires notice within 100 days, more
than three months? Would that be a persuasive argument? I don’t
think so. The House provision of 180 days was arguably worse than current
law, which required notice “within a reasonable time,” because
it creates a presumption that delaying notice for 180 days, six months,
is reasonable. It was a bargaining ploy. The Senate version was what
the courts had required prior to the Patriot Act. And it was itself
a compromise because it leaves in place the catch-all provision for
justifying the warrant in the first place. That is why I believe the
conference report on the sneak and peek provision is inadequate and
must be opposed.
Let me make one final point about sneak and peek warrants. Don’t
be fooled for a minute into believing that this power is needed to investigate
terrorism or espionage. It’s not. Section 213 is a criminal provision
that could apply in whatever kind of criminal investigation the government
has undertaken. In fact, most sneak and peek warrants are issued for
drug investigations. So why do I say that they aren’t needed in
terrorism investigations? Because FISA also can apply to those investigations.
And FISA search warrants are always executed in secret, and never require
notice. If you really don’t want to give notice of a search in
a terrorism investigation, you can get a FISA warrant. So any argument
that limiting the sneak and peek power as we have proposed will interfere
with sensitive terrorism investigations is a red herring.
Mr. President, I have spoken at some length about the provisions of
this conference report that trouble me. But to be fair, I should mention
the one significant improvement to the conference report over last month’s
draft. This new version includes four-year sunsets on three of the most
controversial provisions: roving wiretaps, the so-called “library”
provision, and the “lone wolf” provision of the Foreign
Intelligence Surveillance Act. Previously, the sunsets on these provisions
were at seven years, and it is certainly an improvement to have reduced
that number so that Congress can take another look at those provisions
sooner.
I also want to acknowledge that the conference report creates new reporting
requirements for some Patriot Act powers, including new reporting on
roving wiretaps, Section 215, “sneak and peek” search warrants,
and National Security Letters. There are also new requirements that
the Inspector General of the Department of Justice conduct audits of
the government’s use of National Security Letters and Section
215. In addition, the conference report includes some other useful oversight
provisions relating to FISA. It requires that Congress be informed about
the FISA Court’s rules and procedures and about the use of emergency
authorities under FISA, and gives the Senate Judiciary Committee access
to certain FISA reporting that currently only goes to the Intelligence
Committee. I’m also glad to see that it requires the Department
of Justice to report to us on its data-mining activities.
But, Mr. President, adding sunsets and new reporting and oversight requirements
only gets you so far. The conference report remains deeply flawed. I
appreciate sunsets and reporting, and I know that the senior Senator
from Pennsylvania worked hard to ensure they were included, but these
improvements are not enough. Sunsetting bad law in another four years
is not good enough. Simply requiring reporting on the government’s
use of these overly expansive tools does not ensure that they won’t
be abused. We must make substantive changes to the law, not just improve
oversight. This is our chance, and we cannot let it pass by.
Last Thursday, after the conference deal was announced, the Attorney
General termed it a "win for the American people in that it will
result in continued security for the United States and also continued
protection of civil liberties for all Americans." In a way, that
comment shows that we have made progress. The Administration seems to
understand that protecting civil liberties is important to our citizens.
That’s quite an improvement from the days when people who expressed
these concerns were termed “hysterical.” But the Attorney
General also said: "people have seen how the Department of Justice
has been very responsible in exercising (its) authorities."
This comment reflects a fundamental misunderstanding of the relationship
of the government and the governed in our democracy. Trust of government
cannot be demanded, or asserted, or assumed, it must be earned. And
this government has not earned our trust. It has fought reasonable safeguards
for constitutional freedoms every step of the way. It has resisted congressional
oversight and often misled the public about its use of the Patriot Act
And now the Attorney General is arguing that the conference report is
adequate “protection for civil liberties for all Americans.”
It isn’t.
We sunsetted 16 provisions of the original Patriot Act precisely so
we could revisit them and make necessary changes – to make improvements
based on the experience of four years with the Act, and with the careful
deliberation and debate that, quite frankly, was missing four years
ago. Well, Mr. President, this process of reauthorization has certainly
generated debate, but if we pass the conference report as currently
written, we will have wasted a lot of time and missed our opportunity
to finally get it right.
The American people will not be happy with us for missing that chance.
They will not accept our explanation that we decided to wait another
four years before really addressing their concerns. They will not settle
for half a loaf because we ran out of time to reach consensus. Mr. President,
I submit that an acceptable consensus was reached by the Senate back
in July. We should insist that the House pass that bill, and give the
American people a reauthorization bill that is worthy of their support,
and their confidence. I am prepared to keep fighting for as long as
it takes to make that happen.
I yield the floor.
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