Statement of Senator Russ Feingold
On the Patriot Act Deal
As Entered Into the Congressional Record
February 9, 2006
Mr. President, I understand that some of my friends and colleagues
in this body have come to an agreement with the White House on reauthorizing
the Patriot Act.
While I respect these Senators greatly, I am gravely disappointed in
this so-called deal. The White House agreed to only a few minor changes
to the Patriot Act conference report that could not get through the
Senate back in December. These changes do not address the major problems
with the Patriot Act that a bipartisan coalition has been trying to
fix for the past several years. We’ve come too far and fought
too hard to agree to reauthorize the Patriot Act without fixing those
problems. A few insignificant changes just doesn’t cut it. I cannot
support this deal, and I will do everything I can to stop it.
I understand the pressure that my colleagues have been under on this
issue, and I appreciate all the hard work that they have done on the
Patriot Act. It has been very gratifying to work on a bipartisan basis
on this issue. It is unfortunate that the White House is so obviously
trying to make this into a partisan issue, because it sees some political
advantage to doing so. Whether the White House likes it or not, this
will continue to be an issue where both Democrats and Republicans have
concerns, and we will continue to work together for changes to the law.
I am sure of that.
But I will also continue to strongly oppose any reauthorization of
the Patriot Act that does not protect the rights and freedoms of law-abiding
Americans with no connection to terrorism. This deal does not meet that
standard – it doesn’t even come close.
The Patriot Act conference report, combined with the few changes announced
today, does not address the core issues that our bipartisan group of
Senators have been concerned about for the last several years. The modest
but critical changes we have been pushing are not included. I am not
talking about new issues. We are talking about the same issues that
concerned us when we first introduced the SAFE Act more than two years
ago to fix the Patriot Act. And we have laid them out in detail in several
different letters over the past few months.
First, and most importantly, the deal does not ensure that the government
can only obtain the library, medical and other sensitive business records
of people who have some link to suspected terrorists. This is the Section
215 issue, which has been at the center of this debate over the Patriot
Act. 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 Senate bill that this body passed by unanimous consent back in July
would have ensured that the government cannot use this power to go after
someone who has no connection whatsoever to a terrorist or spy or their
activities. The conference report replaces the Senate test with a simple
relevance standard, which is not adequate protection against a fishing
expedition. And the deal struck today leaves that provision of the conference
report unchanged.
Second, the deal does not provide meaningful judicial review of the
gag orders placed on recipients of Section 215 business records orders
and National Security Letters. Under the deal, such review can only
take place after a year has passed and can only be successful if the
recipient proves that that government has acted in bad faith. The deal
ignores the serious First Amendment problem with the gag rule under
current law. In fact, it arguably makes the law worse in this area.
And third, the deal does not ensure that when government agents secretly
break into the homes of Americans to do a so-called “sneak and
peek” search, they tell the owners of those homes in most circumstances
within seven days, as courts have said they should, and as the Senate
bill did.
As I understand it, this deal only makes a few small changes. It would
permit judicial review of a Section 215 gag order, but under conditions
that would make it very difficult for anyone to obtain meaningful judicial
review. It would state specifically that the government can serve National
Security Letters on libraries if the library comes within the current
requirements of the NSL statute, a provision that as I read it, just
restates current law. And it would clarify that people who receive a
National Security Letter would not have to tell the FBI if they consult
with an attorney. This last change is a positive step, but it is only
one relatively minor change.
So this deal comes nowhere near the significant, but very reasonable,
changes in the law that I believe are a necessary part of any reauthorization
package. We weren’t asking for much, Mr. President. We weren’t
even asking for changes that would get us close to the bill that this
body passed without objection last July. But the White House would not
be reasonable and has forced a deal that is not satisfactory in an effort
to serve their partisan purposes. I will oppose it, and I will fight
it.
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