Statement of U.S. Senator Russ Feingold
On the Patriot Act Deal
As Prepared For Delivery From the Senate Floor
Listen to my Statement from the Senate Floor
February 15, 2006
Mr. President, it will come as no surprise that I’d like to talk
about the Patriot Act today. I strongly oppose proceeding to consideration
of S. 2271, which is legislation introduced by some of my friends and
colleagues to implement the deal on the Patriot Act that was struck
with the White House last week. Some may argue that there’s no
harm in passing a bill that could charitably be described as trivial.
But protecting the rights of law-abiding Americans is not trivial. And
passage of S. 2271 is the first step toward passage of the flawed Patriot
Act conference report. I will oppose both measures and I am prepared
to explain at length my reasons for doing so.
While I greatly respect the Senators who negotiated this deal, I am
gravely disappointed in the outcome. The White House would agree to
only a few minor changes to the same 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. They are,
quite frankly a fig leaf to allow those who were fighting hard to improve
the Act to now step down, claim victory, and move on. What a hollow
victory that would be, and what a complete reversal of the strong bipartisan
consensus that we saw in this body just a couple months ago. What we
are seeing is quite simply a capitulation to the intransigent and misleading
rhetoric of a White House that sees any effort to protect civil liberties
as a sign of weakness. Protecting American values is not weakness, Mr.
President. Standing on principle is not weakness. And committing to
fighting terrorism aggressively without compromising the rights and
freedoms this country was founded upon – that’s not weakness
either. We’ve come too far and fought too hard to agree to reauthorize
the Patriot Act without fixing any of the major problems with the Act.
A few insignificant, face-savings changes just don’t cut it. I
cannot support this deal, and I strongly oppose proceeding to legislation
that will implement 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. I urge my colleagues
to oppose it, and therefore I ask that they oppose proceeding to this
legislation.
I wanted to take some time today to lay out the background and the
context for this ongoing debate over the Patriot Act, a debate that
will not end with the reauthorization of the sixteen provisions that
are now set to expire on March 10. And I would like to discuss my concerns
about this reauthorization deal 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 last July 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 had considered back in December or the bill we
were considering today, I would speak in support of it. In fact, we
could have completed the process of reauthorizing 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 continuing
to call for a better reauthorization package 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. There are any number
of ways that we can reauthorize the Act while amending its most problematic
provisions and I am not prepared to support reauthorization without
adequate reforms.
Let me also be clear about how this process fell apart at the end of
last year and how we ended up having to extend the Patriot Act temporarily
past the end of 2005. In December this body, in one of its prouder moments
in recent years, refused to let through a badly flawed conference report.
A bipartisan group of Senators stood together and demanded further changes.
We made very clear what we were asking for. We laid out five issues
that needed to be addressed to get our support. Let me read some excerpts
from a letter that we sent explaining our concerns:
The draft conference report would allow the government to obtain sensitive
personal information on a mere showing of relevance. This would allow
government fishing expeditions. As business groups like the U.S. Chamber
of Commerce have argued, the government should be required to convince
a judge that the records they are seeking have some connection to a
suspected terrorist or spy.
The draft conference report does not permit the recipient of a Section
215 order to challenge its automatic, permanent gag order. Courts have
held that similar restrictions violate the First Amendment. The recipient
of a Section 215 order is entitled to meaningful judicial review of
the gag order.
The draft conference report does not provide meaningful judicial review
of an NSL’s gag order. It requires the court to accept as conclusive
the government’s assertion that a gag order should not be lifted,
unless the court determines the government is acting in bad faith. The
recipients of NSLs are entitled to meaningful judicial review of a gag
order.
The draft conference report does not sunset the NSL authority. In light
of recent revelations about possible abuses of NSLs, the NSL provision
should sunset in no more than four years so that Congress will have
an opportunity to review the use of this power.
The draft conference report requires the government to notify the target
of a “sneak and peek” search no earlier than 30 days after
the search, rather than within seven days, as the Senate bill provides
and as pre-Patriot Act judicial decisions required. The conference report
should include a presumption that notice will be provided within a significantly
shorter period in order to better protect Fourth Amendment rights. The
availability of additional 90-day extensions means that a shorter initial
time frame should not be a hardship on the government.
That is from a letter that we sent late last year. Now, you might ask,
in this newly announced deal on the Patriot Act, have any of these five
problems been solved?
The answer is “No.” Not a single one. Only one of these
issues has been even partially addressed by this deal. The White House
applied immense pressure and pulled out its usual scare tactics, and
succeeded in convincing people to accept a deal that makes only a tiny
substantive improvement to the bill that was rejected in December. This
is simply not acceptable.
I want to explain in detail my biggest concerns with the conference
report, as modified by S. 2271, the legislation that the majority leader
is seeking to take up. But first I want to clear up one frequent 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 reasonable.
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.
Whenever we start debating the Patriot Act, we hear 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.
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 toward the end of last year 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 some
in this body have done – to their credit – during this reauthorization
process, 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.
We don’t have to accept bad provisions to make sure the good provisions
become law.
Mr. President, today I do want to advance the debate. I want to spend
some time explaining my specific concerns with the conference report
and the deal that was struck to make a few minor changes to it. It is
very unfortunate that the whole Congress could not come together as
the Senate did around the Senate’s 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
as slightly modified by this deal, unfortunately, does not contain many
important reforms to the Patriot Act that we passed here in the Senate.
So I cannot support it. And I will fight it.
I want to remind my colleagues of the serious problems with the Patriot
Act that we have been discussing for several years. 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, more than 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 has repeatedly made that same argument, and he did
so again in December in an op-ed in the Washington Post when he dismissed
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.” First of all, 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.
But even more importantly, the claim about lack of abuses just isn’t
credible given what we now know about how this Administration views
the surveillance laws that this body writes. We now know that for the
past four-plus years, the government has been wiretapping the international
communications of Americans inside the United States, without obtaining
the wiretap orders required by statute. You want to talk about abuses?
I can’t imagine a more shocking example of an abuse of power,
than to violate the law by eavesdropping on American citizens without
first getting a court order based on some evidence that they are possibly
criminals, terrorists or spies. So I don’t want to hear again
from the Attorney General or anyone on this floor that this government
has shown it can be trusted to use the power we give it with restraint
and care.
The government should not have the kind of broad, intrusive powers
in Section 215 – not this government, not any government. 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 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 those orders and the accompanying gag
orders in court. These provisions passed the Senate Judiciary Committee
unanimously after tough negotiations late into the night. As anyone
familiar with the Judiciary Committee knows, that’s no easy feat.
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 report 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.
This issue was perhaps the most significant reason that I and others
objected to the conference report. So how was this issue addressed by
the White House deal to get the support of some Senators? It wasn’t.
Not one change was made on the standard for obtaining Section 215 orders.
That is a grave disappointment. The White House refused to make any
changes at all. Not only would it not accept the Senate version of Section
215, which no member of this body objected to back in July, it wouldn’t
make any change in the conference report on this issue at all.
Another significant problem with the conference report that was rejected
back in December was that it 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.
Now, this question of judicial review of the Section 215 gag order
is one issue that actually is addressed by the White House deal. Addressed,
but not solved. Far from it. Under the deal, there is judicial review
of Section 215 gag orders, but it can only take place after a year has
passed and can only be successful if the recipient of the Section 215
order proves that that government has acted in bad faith. As many of
us have argued in the context of National Security Letters, that is
a virtually impossible standard to meet. We need meaningful judicial
review of these gag orders, not just the illusion of it.
I do want to acknowledge one change made by the White House deal that
I think is an improvement over the conference report. The conference
report clarifies that recipients of both Section 215 orders and National
Security Letters – which I will talk about in detail in a moment
– can consult an attorney. But it also includes a provision that
appears to require the recipients of these letters to notify the FBI
if they consult with an attorney and to identify the attorney to the
FBI. Obviously, this could have a significant chilling effect on the
right to counsel. The deal struck with the White House makes clear that
recipients of Section 215 orders and National Security Letters would
not have to tell the FBI if they consult with an attorney. That is an
improvement over the conference report, but unfortunately it is only
one relatively minor change.
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 year on the use of these authorities.
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 FBI headquarters 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. 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 of being 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.
Does the White House deal address these problems? It does not. In fact,
as I have already discussed, it expands that same very troubling standard
of review to judicial review of Section 215 gag orders.
The modifications to the conference report agreed to by the White House
do contain one other purported change to one of the NSL statutes. This
modification states that the FBI cannot issue an NSL for transactional
and subscriber information about telephone and Internet usage to a library
unless the library is offering “electronic communication services”
as defined in the statute. But that just restates the existing requirements
of the NSL statute, which currently applies only to entities –
libraries or otherwise – that provide “electronic communication
services.” So that provision has no real legal effect whatsoever.
Perhaps that explains why the American Library Association issued a
statement calling this provision a “fig leaf” and expressing
disappointment that so many Senators have agreed to this deal.
I also want to take a moment to address, again, an argument that has
been made about the NSL provisions of the conference report. It has
been 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, 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 has been made 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 about the 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 a sunset of
the NSL authorities would be justified to ensure that Congress has the
opportunity to take a close look at such a broad power. But the conferees
and the White House refused to make that change. Nor would they budge
at all on the absurdly difficult standard of review, the so-called conclusive
presumption; in fact, the White House insisted on repeating it in the
context of judicial review of Section 215 gag orders.
This points out a real problem I have with the White House deal. In
our letter in December, my colleagues and I, Democratic and Republican,
complained about the unfair standard for judicial review of the gag
order in connection to NSLs. So how can the supporters of this deal
argue that applying that same standard to challenges to the gag rule
for Section 215 orders is an improvement? A standard that was unacceptable
in December has somehow miraculously been transformed into a meaningful
concession. That is just spin Mr. President. It doesn’t pass the
laugh test.
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, I next want to address “sneak and peek”
searches. This is another area where the conference report departs from
the Senate’s compromise language, another area where the White
House deal makes no changes whatsoever, and another reason that I must
oppose the conference report.
When we debated the Patriot Act in December, the senior Senator from
Pennsylvania made what seems on the surface to be an appealing argument.
He said 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 after
the search 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.
Critics of the sneak and peek provision worked to fix both of the problems
when they introduced the SAFE Act. First, in that bill, we 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, we 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 within 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. I have pointed this out repeatedly, and no one has ever come
forward and explained why the government can’t come back to the
court within seven days of executing the search. Instead, they let the
House get away with a negotiating tactic – by starting with 180
days, they can argue that 30 days is a big concession. But it wasn’t.
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. And the fact that this so-called deal with the White
House does not address this issue is yet another reason why I see no
reason why I, or anyone, should change their position on this.
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 applies in whatever kinds of criminal investigations 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, and the ways in which the deal
struck with the White House does not address those problems with the
conference report. But to be fair, I should mention one aspect of the
conference report that was better than a draft that circulated prior
to the final signing of that report. The conference report 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, as it would be modified
by S. 2271, 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.
Mr. President, trust of government cannot be demanded, or asserted,
or assumed; it must be earned. And this Administration 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. We know now that
it has even authorized illegal wiretaps and is making misleading legal
arguments to try to justify them. 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, even with the few White House modifications,
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. It appears that
is now an inevitable outcome. But I am prepared to keep fighting for
as long as it takes to get this right. For now, I urge my colleagues
to oppose the motion to proceed to this legislation to implement the
White House deal. We can do better than these minor cosmetic changes.
I yield the floor.
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