Statement on the Reauthorization of the Patriot Act

Statement on the Reauthorization of the Patriot Act
By Senator Russ Feingold
t r u t h o u t | Statement

Wednesday 14 December 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 new information became available about the 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 after these revelations that a sunset provision should apply to NSLs. 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 US v. Villegas and the Ninth Circuit in US 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 Service Intelligence 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. Sun-setting 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 sun-setted 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.

Go to Original

400th Resolution Challenges Patriot Act Reauthorization
Bill of Rights Defense Committee

Thursday 15 December 2005

As Congress considers making parts of the USA Patriot Act permanent, the Bill of Rights Defense Committee hails the passage of the 400th resolution upholding its residents' essential liberties guaranteed by the Bill of Rights. On Tuesday, Coupeville, Washington, joined seven states and 392 cities and counties that have taken stands against the Patriot Act's infringements on the US Constitution. The Coupeville Town Council's vote was unanimous.

Residents of Coupeville join more than 62 million US residents in "civil liberties safe zones," towns, cities, counties and states that have passed resolutions to protect and affirm civil liberties in the face of a broad expansion of government surveillance powers post-9/11. "There was an urgency to get this resolution passed before the year ends," said Che Gilliland, of Coupeville Peace and Reconciliation. "We wanted to show Congress how serious we are about protecting our liberties, especially with both the Patriot Act vote and the Bill of Rights anniversary coming up this week."

New resolutions are not the only front in this grassroots campaign to stop or at least slow down the Patriot Act reauthorization. "Millions of people are phoning and faxing their members of Congress, urging them to support plans for a filibuster and a three-month continuing resolution in order to stop the runaway reauthorization process," said Nancy Talanian, executive director of the Bill of Rights Defense Committee, a national group that educates the American public about threats to liberties and helps people convert their concerns into meaningful action.

Talanian reports that the resolutions passed in small towns and large cities, including New York City, Los Angeles, Chicago, Dallas, and Philadelphia, represent a cross-section of ordinary Americans who value freedom, including conservatives and gun owners. "The passage of 400 resolutions representing 62 million people is the result of people across the political spectrum joining together within their communities to reaffirm the Bill of Rights."

Since the BORDC formed in November 2001, community-based organizations have used BORDC's strategies, organizing assistance, community networking, and web-based resources to pass 400 resolutions and ordinances in 43 states, including statewide resolutions in Alaska, Colorado, Hawaii, Idaho, Maine, Montana, and Vermont.