U.S. Senator Russ Feingold on the SAFE Act April 7, 2004 Mr. FEINGOLD. Madam President, I join my colleagues Senators CRAIG and DURBIN in urging the administration and Congress to support the SAFE Act. The SAFE Act is a much needed bill that amends a few provisions of the USA PATRIOT Act in a reasonable way to preserve our constitutional rights and protections while still protecting our Nation against terrorism. More than 2 years after the PATRIOT Act passed so overwhelmingly, without close scrutiny by Congress, I am delighted that there is now growing support for close examination of application of the law and for changes to the law to ensure that, as we fight terrorism, we also protect the civil liberties of Americans. There is reason for hope. In Congress and in communities across the country, the American people are beginning to realize that the PATRIOT Act went too far. In Congress, there is bipartisan support for changes to the law. I am pleased to join my Republican colleagues, Senators CRAIG, CRAPO, SUNUNU, and MURKOWSKI, as a cosponsor of the SAFE Act. Over 275 communities and four States have now passed resolutions expressing opposition to certain provisions of the PATRIOT Act. Mr. President, the attacks of September 11, 2001, presented a new and unique challenge to this country. I can think of nothing more important than responding to that terrible challenge and protecting Americans against terrorism. As I said during debate on the PATRIOT Act and continue to say today, I believe most of the Act's provisions were necessary and proper, such as increasing the number of border patrol agents and allowing the FBI access to voicemails as a part of wiretaps. But we must be sure that, in conducting the fight against terrorism, the country's highest priority, we also respect the civil rights and liberties of all Americans. History shows that America should not let fear, however justified, cause us to sacrifice our liberty or the liberty of others in the name of national security. The Palmer raids, the McCarthy hearings, the internment of Japanese-Americans, these are all events that have been judged poorly through the lens of history. Today, we are again faced with a grave threat but we can and must face it without potentially abusing the power of the Federal Government or trampling fundamental constitutional rights and protections. I am pleased that Members of Congress and the American people are beginning to realize the values at stake. There is healthy debate across the country in city councils, State legislatures, town hall gatherings, and in Congress, on how best to preserve a free and open society and to protect our Nation against future terrorist attacks. In contrast, the administration does not seem interested in engaging in a good faith dialogue with the American people and Members of Congress about our legitimate concerns and reasonable proposals. Instead, the President has prematurely called for lifting the sunset on certain provisions of the PATRIOT Act that are due to expire. Congress has a responsibility to exercise oversight and demand accountability from the agencies using authority granted to them by Congress. Nearly 2 years before some provisions of the PATRIOT Act will sunset, the administration should be engaging in good faith discussions and negotiations on how it is using the powers it has and how best to protect our country from terrorism while also protecting the civil liberties of our citizens. I am pleased that both Senator HATCH and Representative SENSENBRENNER, the Chairmen of the Senate and House Judiciary Committees, respectively, have disagreed with the President and have stated that close scrutiny of the PATRIOT Act will be undertaken before Congress will consider lifting the sunset provisions. I commend them for taking this position. It is the right thing to do and the proper role of Congress. In addition to prematurely calling for lifting the sunset provisions, the administration has already threatened to veto the SAFE Act if it is enacted. That is unfortunate, and very unusual. The administration has issued a veto threat of a bill that was introduced just a few months ago and has not even had a hearing yet. Thousands of bills are introduced each year. The administration could spend a lot of time issuing veto threats for every one it disagrees with. Obviously, it is worried about this one. But veto threats at this early stage do not contribute to a productive dialogue, and they certainly will not deter the growing bipartisan interest in reevaluating the PATRIOT Act. I would like to take a moment to talk about the SAFE Act and why it is a reasonable proposal. As my colleagues Senators CRAIG and DURBIN have discussed, the SAFE Act makes important modifications to enhance judicial review of the FBI's roving wiretap and so-called ``sneak and peek'' search activities. I would like to comment on another important modification to the PATRIOT Act contained in the SAFE Act, the section 215, or business records, fix. Prior to the PATRIOT Act, the Government could compel the production of only certain business records in connection with a counter-intelligence or international terrorism investigation, namely, hotel, rental car, airline, and storage facility records. This was a narrow set of records, and so it made sense to change the law. I agree with that change, to allow the FBI access to more categories of business records. But the PATRIOT Act went too far because it also weakened the ability of the courts to exercise their proper role as a check on the executive branch, and it took away the requirement of individualized suspicion. The PATRIOT Act changed the standards for allowing the FBI access to such records. Prior to the PATRIOT Act, investigators had to state, in their application to the secret FISA court, specific and articulable facts giving reason to believe that the person to whom the records pertained was a suspected terrorist or spy. If a court agreed, it would issue the order. The PATRIOT Act, however, vastly expanded this power so that investigators no longer have to show ``specific and articulable facts.'' Now, investigators need only state that the records are ``sought for'' a counter-intelligence or international terrorism investigation. Upon receiving the application for a court order, the judge must--must--issue the order. He or she does not have discretion. The judge cannot review the merits of the request. For example, a judge cannot review facts to determine whether the scope of the request is reasonable. So long as the FBI asserts that the records are ``sought for'' a foreign intelligence investigation, the judge must issue the order. The SAFE Act sponsors and I, as well as librarians, privacy advocates, and an increasing number of Americans, believe this provision of the PATRIOT Act goes too far. We recognize that there is enormous potential for abuse if the FBI is allowed access to personal information, such as medical records, library records, or newspaper or magazine subscription records, all with no meaningful judicial review and without a requirement of some showing that the records pertain to a suspected terrorist or spy. The SAFE Act would simply re-insert a pre-PATRIOT Act standard so that he role of the judge as a check on the executive branch is real and effective. Like the standard prior to the PATRIOT Act, under the SAFE Act the FBI would need to state specific and articulable facts to support its application. The SAFE Act simply restores the judicial oversight that existed prior to the PATRIOT Act, giving the court the power to ensure that the Federal Government is not engaging in a fishing expedition at the expense of innocent Americans. This is a reasonable response to protect both our security and our privacy. The administration has not shown how this prudent safeguard would harm the fight against terrorism or impair its ability to get access to information it needs to protect the country. I might add that according to the administration, as of last September, almost 2 years since enactment of the PATRIOT Act, the administration claims it had not yet used section 215 of the PATRIOT Act. It is unclear whether they have used it since that time, and I have recently sent the Attorney General a letter asking him whether it has been used. But regardless of whether it has been used zero times or a handful of times, it is nevertheless difficult to understand how re-inserting an important judicial check would harm the fight against terrorism. I urge the administration to reconsider its position on the SAFE Act. The American people have thoughtfully expressed their fears and wishes. They want the Federal Government to protect them against terrorism, but they also want the Federal Government to be respectful of the Constitution every step of the way. With passage of the SAFE Act, we can reassure the American people that we are working to protect their rights and liberties, as well as their safety. I urge my colleagues and the administration to support the SAFE Act.

# # #