Statement of U.S. Senator Russ Feingold
On Stopping the Bad Patriot Act Deal
As Prepared for Delivery from the Senate Floor
February 16, 2006
Mr. President, the upcoming cloture vote on the motion to proceed to
S. 2271, introduced by my friend Senator Sununu, is the first opportunity
for my colleagues to go on record on whether they will accept the White
House deal on Patriot Act reauthorization. Back in December, 46 Senators
voted against cloture on the conference report. I think it’s clear
by now that the deal makes only minor changes to that conference report.
The Senator from Pennsylvania, Chairman of the Judiciary Committee and
primary proponent of the conference report in this body, was quoted
yesterday as saying that the changes that the White House agreed to
were “cosmetic.” And then he said, according to the AP,
“But sometimes cosmetics will make a beauty out of a beast and
provide enough cover for senators to change their vote.”
The Senator from Alabama said on the floor yesterday: “They’re
not large changes, but it made the Senators happy and they feel comfortable
voting for the bill today.” I agree with both of my adversaries
on this bill that the changes were minor and cosmetic. I explained that
at length yesterday, and no one else other than Senator Sununu came
down to the floor to defend the deal.
Some of my colleagues have been arguing, however, that we should go
along with this deal because the conference report, as amended by the
Sununu bill, improves the Patriot Act that we passed four and a half
years ago.
It’s hard for me to understand how Senators who blocked the conference
report in December can now say that it’s such a great deal. It’s
not a great deal – the conference report is just as flawed as
it was two months ago. No amount of cosmetics is going to make this
beast look any prettier.
That said, let me walk through some of the provisions of the conference
report that are being touted as improvements to the original Patriot
Act.
First, there’s the issue that was the lynchpin of the bill the
Senate passed without objection in July of last year: the standard for
obtaining business records under Section 215. Section 215 gives the
government extremely broad powers to secretly obtain people’s
business records. The Senate bill would have required that the government
prove to a judge that the records it sought had some link to suspected
terrorists or spies or their activities. The conference report does
not include this requirement. Now, the conference report does contain
some improvements to Section 215, at least around the edges. It contains
minimization requirements, meaning that the executive branch has to
set rules for whether and how to retain and share information about
U.S. citizens and permanent residents obtained from the records. And
it requires clearance from a senior FBI official before the government
can seek to obtain particularly sensitive records like library, gun
and medical records. But the core issue with Section 215 is the standard
for obtaining these records in the first place.
Neither the minimization procedures nor the high level signoff changes
the fact that the government can still obtain sensitive business records
of innocent, law-abiding Americans. The standard in the conference report
– “relevance” -- will still allow government fishing
expeditions. That is unacceptable. And the Sununu bill does not change
that.
Next, let me turn to judicial review of these Section 215 orders. After
all, if we’re going to give the government such intrusive powers,
we should at least people go to a judge to challenge the order. The
conference report does provide for this judicial review. But it would
require that the judicial review be conducted in secret, and that government
submissions not be shared with the challenger under any circumstances,
without regard for whether there are national security concerns in any
particular case. This would make it very difficult for a challenger
to get meaningful judicial review that comports with due process. And
the Sununu bill does not address this problem.
So, what we have are very intrusive powers, very limited judicial review
– and then, on top of it, anyone who gets a Section 215 order
can’t even talk about it. That’s right – they come
complete with an automatic, indefinite gag order. The new “deal”
supposedly allows judicial review of these gag orders, but that’s
just more cosmetics. As I explained yesterday, the deal that was struck
does not permit meaningful judicial review of these gag orders. No judicial
review is available for the first year after the 215 order has been
issued. Even when the right to judicial review does finally kick in,
the challenger has to prove that the government acted in bad faith.
That is a virtually impossible standard to meet.
The last point on Section 215 is that the conference report, as amended
by the Sununu bill, now explicitly permits recipients of these orders
to consult with attorneys, and without having to inform the FBI that
they have done so. It does the same thing with respect to National Security
Letters. This is an important clarification, but keep in mind that the
Justice Department had already argued in litigation that the provision
in the NSL statute actually did permit recipients to consult with lawyers.
So this isn’t much of a victory at all. Making sure that recipients
don’t have to tell the FBI if they consult a lawyer is an improvement,
but it is a minor one.
Next let’s turn to National Security Letters, or NSLs. These
are the letters that the FBI can issue to obtain certain types of business
records, with no prior court approval at all. The conference report
does provide for judicial review of NSLs, but it also gives the government
the explicit right to enforce NSLs and hold people in contempt for failing
to comply, which was not previously laid out in the statute. And, in
stark contrast to the Senate bill, the conference report also would
require that judicial review be conducted in secret, and that government
submissions not be shared with the challenger under any circumstances,
without regard for whether there are national security concerns in any
particular case. Just like with the Section 215 judicial review provisions,
this will make it very difficult for challengers to be successful. And
the Sununu bill does not address this problem.
Of course, NSLs come with gag orders, too. The conference report addresses
judicial review of these gag orders but it has the same flaw as the
Sununu bill does with regard to judicial review of the Section 215 gag
rule. In order to prevail, you have to prove that the government acted
in bad faith, which will be virtually impossible. And the Sununu bill
does not modify these provisions at all.
Let me make just one last point on NSLs. The Sununu bill contains a
provision that states that libraries cannot receive an NSL for Internet
records unless the libraries provide “electronic communications
services” as defined by statute. But that NSL statute already
applies only to entities that satisfy that definition, so this provision
essentially restates existing law. It is no improvement at all. Those
cosmetics start to wear pretty thin once you look closely at this deal.
Let’s turn next to sneak and peek search warrants. As I laid
out in detail yesterday, the conference report takes a significant step
back from the Senate bill by presumptively allowing the government to
wait an entire month to either notify someone that agents secretly searched
their home, or get approval from a judge to delay the notification even
longer. The Senate bill said the presumption should be one week, and
I have yet to hear any argument, much less a persuasive argument, why
that amount of time is insufficient. Core Fourth Amendments protections
are at stake here. And once again, the Sununu bill does nothing to address
this issue.
Now let me talk briefly about roving intelligence wiretaps under Section
206 of the Patriot Act. We haven’t discussed this issue much,
in part because the conference report does partially address the concerns
that had been raised about this provision. But the conference report
language is still not as good as the Senate bill was on this issue.
Unlike the Senate bill, the conference report does not require that
a roving wiretap include sufficient information to describe the specific
person to be wiretapped with particularity. The Sununu bill does not
address this problem.
Supporters of the conference report say that it contains new four-year
sunsets for three provisions: Section 206, Section 215 and the “lone
wolf” expansion of the Foreign Intelligence Surveillance Act that
passed as part of the Intelligence Reform bill in 2004. But sunsets
are not enough. This reauthorization process is our opportunity to fix
the problems with the Patriot Act. Just sunsetting bad law – again
-- is hardly an improvement. And of course, neither the conference report
nor the Sununu bill contains a sunset for the highly controversial National
Security Letter authorities that were expanded by the Patriot Act, even
though many of us said back in December that was an important change
we wanted to see made.
I have the same response to those who point to the valuable new reporting
provisions in the conference report. We must make substantive changes
to the law, not just improve oversight.
I have laid out at length the many substantive reasons to oppose the
deal. But there’s an additional reason to oppose cloture on the
motion to proceed, and that’s because it appears the Majority
Leader is planning to prevent Senators from offering and getting votes
on amendments to the bill. I was on the floor for nine hours yesterday.
I wasn’t asking for much – just a guarantee that I could
offer and get votes on a handful of amendments relevant to the bill.
There was a time when Senators didn’t have to camp out on the
floor to plead for the opportunity to offer amendments. In fact, offering,
debating and voting on amendments is what the Senate is supposed to
be all about – that’s how we craft legislation. But my offer
was rejected, and it appears the other side may try to ram this deal
through without a real amending process.
I hope that even colleagues who may support the deal will oppose such
a sham process. It makes no sense to agree to go forward without a guarantee
that we will be allowed to actually try to improve the bill. And it
is a discourtesy to all Senators, not just me, to try to ram through
controversial legislation without the chance to improve it.
In sum, Mr. President, I oppose the sham legislative process that the
Senate is facing here. And I oppose the flawed deal we are being asked
to ratify. Notwithstanding the improvements achieved in the conference
report, we still have not adequately addressed some of the most significant
problems with the Patriot Act. So I must oppose proceeding to this bill,
which will allow the deal to go forward. I cannot understand how anyone
who opposed the conference report back in December can justify supporting
it now. This deal was a beast two months ago and it hasn’t gotten
any better-looking since then. I urge my colleagues to vote No on cloture.
| 