[Congressional Record: May 24, 2011 (Senate)] [Page S3247-S3262] PATRIOT SUNSETS EXTENSION ACT OF 2011--Motion to Proceed The ACTING PRESIDENT pro tempore. Under the previous order, the Senate will resume consideration of the motion to proceed to S. 1038, which the clerk will report by title. The legislative clerk read as follows: Motion to proceed to the bill (S. 1038) to extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 until June 1, 2015, and for other purposes. schedule Mr. REID. Madam President, following any leader remarks, the Senate will resume consideration of the motion to proceed to S. 1038, the PATRIOT Act extension, postcloture. There will be a joint meeting of Congress at 11 a.m. with Israeli Prime Minister Netanyahu. Senators should gather in the Senate Chamber at 10:30 to proceed over to the House at about 10:40. We will proceed there as a body. Measures Placed on the Calendar--S. 1050, S.J. Res. 13, S.J. Res. 14 Mr. REID. Madam President, I understand there are three measures at the desk due for a second reading. The ACTING PRESIDENT pro tempore. The clerk will read the titles of the bills for a second time. The legislative clerk read as follows: A bill (S. 1050) to modify the Foreign Intelligence Surveillance Act of 1978 and to require judicial review of National Security Letters and Suspicious Activity Reports to prevent unreasonable searches, and for other purposes. A joint resolution (S.J. Res. 13) declaring that a state of war exists between the Government of Libya and the Government and the people of the United States, and making provision to prosecute the same. A joint resolution (S.J. Res. 14) declaring that the President has exceeded his authority under the War Powers Resolution as it pertains to the ongoing military engagement in Libya. Mr. REID. I would object to any further proceedings with respect to these bills en bloc. The ACTING PRESIDENT pro tempore. Objection is heard. The bills will be placed on the calendar. [...] Mr. LEAHY. Mr. President, nearly 10 years after the attacks of September 11, 2001, every one of us in the Senate knows America continues to face threats of terrorism. Our allies know this, as well. The President's dogged pursuit and success earlier this month against Osama bin Laden does not mean we can become complacent or less vigilant. We must remain vigilant and ensure the men and women of our law enforcement and intelligence agencies have all the appropriate tools necessary to protect our Nation and the American people. But as every Vermonter knows, tools are only useful if they are regularly checked and maintained. Otherwise they become blunt instruments that can do harm, rather than accomplish the job. Congress recognized this basic notion in 2001, when we first wrote the USA PATRIOT Act. I worked with the then-Republican House majority leader, Dick Armey to include sunsets on certain surveillance authorities in the bill. Even though we had vastly different political philosophies, we both agreed we had to have sunset provisions. In 2006, when Congress reauthorized the USA PATRIOT Act, I worked to ensure that certain sunsets were renewed, and added audits on the use of powers with the potential to unnecessarily intrude on the privacy of Americans. We should not give a blank check to anybody--whether it is a Republican or Democratic administration. We are, after all, Americans who believe in our individual liberties. Having granted the Government broad authority to gather vast amounts of information about the daily lives of Americans, I wanted to do what we could to ensure that unfettered information gathering did not occur at the expense of Americans' basic constitutional rights and civil liberties. The sunsets and audits provide Congress an opportunity to examine whether the PATRIOT Act tools are being used appropriately, and if not, to sharpen, refine, or restrain those tools accordingly. The audits we added in 2005 or 2006 proved to be very helpful because they identified that there were abuses in the way the PATRIOT Act was being used, specifically with respect to national security letters and the use of ``exigent letters.'' Without this oversight, we probably never would have found out about those abuses. But we found out about them and we worked with the FBI to correct those matters. That brings us to today. The Senate has the opportunity to reexamine and redefine key PATRIOT Act provisions, and I think we should take that opportunity to make improvements to our [[Page S3249]] current law. That is why I have led the Senate Judiciary Committee to diligently consider these matters through a series of hearings and meetings. The committee responded by reporting improvements, both last year and again this year, through bipartisan legislation. They are good measures, and we have worked to ensure that they would not compromise the effectiveness of our law enforcement and intelligence capabilities. In fact, much of the language was derived after consultation with the administration, including the intelligence community. The Attorney General and others have repeatedly assured us that the measures to enhance oversight and accountability--such as audits and public reporting--would not sacrifice ``the operational effectiveness and flexibility needed to protect our citizens from terrorism'' or undermine ``the collection of vital foreign intelligence and counterintelligence information.'' In fact, the Attorney General has consistently said the bill passed out by the Senate Judiciary Committee struck ``a good balance'' by extending the PATRIOT Act authorities while adding accountability and civil liberties protections. For additional detail and legislative history, I refer Senators to the Senate report on the bill reported by the Senate Judiciary Committee this year, Senate Report No. 112-13. I ask unanimous consent that a December 9, 2010, letter from the Attorney General to me making these points be printed in the Record, along with a February 19, 2010, letter from the Director of National Intelligence to House leaders. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.) Mr. LEAHY. Unfortunately, the bill now before the Senate merely extends the expiring authorities to June 1, 2015. Regrettably, these authorities have not been refined since 2006. If that remains the case through the extensions that are contemplated by this bill, it will amount to 9 years of this law without any legislative improvement. I think most of us understand that we can do better. The amendment I have filed seeks to change that by improving the PATRIOT Act. I appreciate the efforts made by the majority leader to craft a compromise. I am sorry that the Republican leadership in Congress has insisted on an extension of authorities without any improvements. The amendment I have filed and wish to offer along with Senators Paul, Cardin, Bingaman, Coons, Shaheen, Wyden, Franken, Gillibrand, Harkin, Durbin, Merkley, Boxer, and Akaka, makes significant improvements to current law, promotes transparency, and expands privacy and civil liberties safeguards. I ask unanimous consent to have a sectional analysis of the amendment printed in the Record. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 2.) Mr. LEAHY. One of the improvements Congress should make is to repair a constitutional infirmity in the current law. Three years ago, in Doe v. Mukasey, the U.S. Court of Appeals for the Second Circuit found that the nondisclosure provision of the statute authorizing issuance of national security letters was constitutionally defective. If we do not make a change, that constitutionally defective part of the national security letter provision would remain. As part of the comprehensive set of reforms in the bill reported favorably by the Judiciary Committee, I proposed a simple statutory fix that would enable the FBI to obtain the information it needs, while addressing the constitutional concerns. In fact, this proposal has never been controversial. In fact, during the last Congress, Senator Sessions and Senator Bond, the ranking Republicans on the Senate Judiciary and Intelligence Committees, cosponsored a bill incorporating the very legislative remedy I proposed. This is a straightforward matter that needs to be fixed. The underlying bill does not fix the problem; our amendment would. I trust Senators would not want to proceed to vote on an unconstitutional law, one that violates our fundamental charter as a nation and, of course, the liberty of all Americans. No one who claims to honor the Constitution should proceed in so cavalier a manner. If we are to restore the constitutional underpinning of the NSL authority, the Senate should adopt this needed improvement. I am also troubled by the refusal of the Republican leadership to agree on periodic audits on the use by the government of PATRIOT Act surveillance authorities. When I speak of the Republican position, I want to mention that this is not uniform within the Republican Party, as there are many Republicans who believe we should have these audits. Basic transparency and accountability are vital to ensuring that the government does not overstep its legal authority. We grant many authorities to our government, but we should do so with the confidence that if the Government oversteps its authority, Congress has the power to bring it back in line. In fact, it is only because of the audits that were mandated by the 2006 PATRIOT Act reauthorization bill that the American public became aware of some of the abuses and misuses of the national security letters, which were significant. Without that public accountability and congressional oversight, the FBI would not have made improvements to its system of tracking NSL issuance. Because of those audits, we are more confident today that FBI agents are following proper procedures for obtaining private information about Americans--rather than improperly using ``exigent letters'' to circumvent the rules, or using Post-it Notes to keep track of records. Yet the underlying bill omits audits and public reporting; our amendment includes important audit requirements and public reporting to provide accountability and protect Americans' rights. No one can seriously contend that audits by the inspector general of past operations present any operational concerns to law enforcement or intelligence gathering. Audits do not interfere; they provide accountability and ensure that government follows the rules. Mr. President, you and I and 98 other Members of this body have to follow the rules. Certainly, those in law enforcement should have to follow the rules, as well. These audits have been demonstrated to be vital oversight tools, and they should be incorporated into the law. The language in our amendment is the product of more than a year and a half of extensive negotiations with Republicans and Democrats, the intelligence community, the Department of Justice. This year, the Senate Judiciary Committee bill won the support of Senator Lee. Last Congress, a virtually identical bill received the votes of Senators Kyl and Cornyn and was reported favorably by the Senate Judiciary Committee to the Senate. The bipartisan amendment we seek to offer is a reasonable package of reforms that preserves the ability of the government to use the PATRIOT Act surveillance tools, while promoting transparency, accountability, and oversight. I have often said that the Senate should not shirk its duty to reexamine carefully and critically the provisions of the PATRIOT Act. We should consider ways to improve the law consistent with our core constitutional principles. That is what I have tried to do. That is what Vermonters expect. I intend to vigilantly guard Americans' privacy and civil liberties, while doing all I can to keep all Americans secure. That is what we expect in Vermont, and I must assume that is what we expect in the other 49 States. Without a single improvement or reform, without even a word that recognizes the importance of protecting the civil liberties and constitutional privacy rights of Americans, the underlying bill represents a missed opportunity. Let us provide our law enforcement and intelligence professionals with the tools they need and give these professionals the security and certainty they need to protect our Nation. But let us also at the same time faithfully perform our duty to protect the constitutional principles and civil liberties upon which this Nation was founded and on which the American people depend. The vast majority of the 300 million Americans in this great country are law-abiding, honest men and women. We should protect against arbitrarily lumping them all into the category of potential lawbreakers, or enabling the government to search homes or businesses without proper reason. We fought a revolution in this country to stop that from happening, and it is no different today. [[Page S3250]] One of the things that has kept us so strong as a nation is our ability to protect the individual rights of all Americans. We can go after the lawbreakers, just as we got Osama bin Laden, while at the same time protecting the principles of our country. We must not let the terrorists win by compromising our own rights and liberties in this country. The terrorists who seek to harm us would certainly take away from all of us--women and men alike--the constitutional rights we hold dear. We must not allow that. The American people expect us both to protect our rights and to keep us safe, and I believe our amendment does just that. That is why I hope all Senators will support the Leahy-Paul amendment. Exhibit 1 Washington, DC, December 9, 2010. Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Chairman Leahy: This responds to your letter of March 17, 2010, which asked the Department of Justice to consider implementing administratively certain enhanced civil liberties protections that were included in S. 1692, the USA PATRIOT Act Sunset Extension Act, as reported by the Senate Judiciary Committee. In my letter of November 9, 2009, I expressed strong support on behalf of the Department for the bill as reported, which would reauthorize several important Foreign Intelligence Surveillance Act (FISA) authorities while enhancing protections for civil liberties and privacy in the exercise of these essential national security tools. The bill would reauthorize section 206 of the USA PATRIOT Act, which provides authority for roving surveillance of targets who take steps that thwart FISA surveillance; section 215 of the USA PATRIOT Act, which provides authority to compel production of business records and other tangible things with the approval of the Foreign Intelligence Surveillance Court (the FISA Court); and section 6001 of the Intelligence Reform and Terrorism Prevention Act, which provides authority to target with FISA searches or surveillance non-United States persons who engage in international terrorist activities but are not necessarily associated with an identified terrorist group. Earlier this year, Congress acted to extend the expiring authorities until February 28, 2011. As that date approaches, I strongly urge that Congress again take action to ensure that these provisions remain in force. Assuming these authorities are reauthorized, the Department has determined that many of the privacy and civil liberties provisions of S. 1692 can be implemented without legislation. Indeed, in a number of instances, we have already taken steps to do so. I am confident that these measures will enhance standards, oversight, and accountability, especially with respect to how information about U.S. persons is retained and disseminated, without sacrificing the operational effectiveness and flexibility needed to protect our citizens from terrorism and facilitate the collection of vital foreign intelligence and counterintelligence information. National Security Letters Your letter seeks our response regarding several matters related to National Security Letters (NSLs): notification to recipients of NSLs of their opportunity to contest the nondisclosure requirement; issuance of procedures related to the collection, use and storage of information obtained in response to NSLs; retention of a statement of specific facts that the information sought is relevant to an authorized investigation; and increased public reporting on the use of NSLs. You will be pleased to know that as of February 2009, all NSLs are required to include a notice that informs recipients of the opportunity to contest the nondisclosure requirement through the government initiated judicial review. In most cases, this notice is automatically generated by the NSL subsystem. Domestic Investigations and Operations Guide (DIOG) 11.9.3.E. The FBI also will ensure that in any case in which a recipient challenges a nondisclosure order, the recipient is notified when compliance with the order is no longer required. Thus far, there have been only four challenges to the non-disclosure requirement, and in two of the challenges, the FBI permitted the recipient to disclose the fact that an NSL was received. If and when the volume of such requests becomes sufficiently large that solutions beyond ``one-off' notifications are required, the FBI will develop appropriate policies and procedures to notify the recipient when non-disclosure is no longer required. I also am pleased to report that I approved Procedures for the Collection, Use and Storage of Information Derived from. National Security Letters on October 1, 2010, and these procedures have been provided to the Judiciary and Intelligence Committees. The FBI's current practice is consistent with the procedures and the FBI is working on formal policy to implement them. In addition, DOJ and ODNI will shortly complete work on a joint report to Congress on NSL ``minimization'' as required by the PATRIOT Reauthorization Act of 2005. As to the information retained internally in connection with the issuance of NSLs, it is current policy for the FBI to retain a statement of specific facts showing that the information sought through NSLs is relevant to an authorized investigation. DIOG Sec. 11.9.3.C. The Department appreciates the desire of the Committee for enhanced public reporting on the use of NSLs. Accordingly, although the FBI cannot provide information regarding subcategories of NSLs in a public setting, it will continue to report publicly the aggregate numbers of NSLs on an annual basis and will evaluate whether any additional information can be publicly reported. Section 215 Orders Your letter also raises a number of matters related to section 215 orders. You seek assurances that the government will not rely on the conclusive presumption in section 215 and will present the FISA Court with a complete statement of facts sufficient to show relevance of the tangible things requested to an authorized investigation. It is current FBI practice to provide the Foreign Intelligence Surveillance Court with a complete statement of facts to support issuance of an order. The FBI is reviewing the DIOG to determine whether changes need to be made to reflect this practice. With respect to section 215 records that contain bookseller records, or are from a library and contain personally identifiable information about a patron of the library, we are prepared to require a statement of specific and articulable facts as would have been required under S. 1692, and to notify Congress should it become necessary to change that practice. You ask the Department to issue policy guidance providing that certifications accompanying applications for section 215 nondisclosure orders must include an appropriately thorough statement of facts that sets forth the need for nondisclosure. I am pleased to report that this is current FBI practice, and the FBI is reviewing the DIOG to determine whether revisions should be made to reflect this practice. You also ask the Department to institute guidelines to require court-approved minimization procedures for section 215 orders and pen register and trap and trace (PR/TT) devices. Minimization procedures are already required by statute in relation to section 215 orders. 50 USC 1861(b)(2)(B). The proposal to extend this requirement to PR/ TT orders is intended to apply only to certain intelligence collection activities. Procedures governing these operations are currently in effect, having been proposed by the government and approved by the FISA Court. Finally, you ask the Department to consider providing an annual unclassified report on the use of FISA authorities and the impact on privacy of United States persons. I believe that providing greater transparency regarding the U.S. government's exercise of FISA authorities is an important objective, and will show the care taken by officials to implement and comply with constitutional and statutory requirements to protect the privacy of United States persons. Although the Department has concerns that there may be little additional information that can be provided in an unclassified format and that such unclassified information could be unintentionally misleading, we are prepared to work with the committee and our partners in the Intelligence Community to determine whether there is a way to overcome these difficulties and make additional information publicly available regarding the use of these authorities. Taken together, I believe these measures will advance the goals of S. 1692 by enhancing the privacy and civil liberties our citizens enjoy without compromising our ability to keep our nation safe and secure. I hope this information is helpful. The Department stands ready to work with Congress to ensure that the expiring FISA authorities are reauthorized in a timely way. Sincerely, Eric H. Holder, Jr., Attorney General. ____ February 19, 2010. Hon. Harry Reid, Majority Leader, U.S. Senate, Washington, DC. Hon. Nancy Pelosi, Speaker, House of Representatives, Washington, DC. Dear Majority Leader Reid and Speaker Pelosi: Over the past several months, Congress has been considering the reauthorization of three important provisions of the Foreign Intelligence Surveillance Act (FISA), which are scheduled to expire on February 28, 2010: section 206 of the USA PATRIOT Act, which provides authority for roving surveillance of targets who take steps to thwart FISA surveillance; section 215 of the USA PATRIOT Act, which provides authority to compel production of business records and other tangible things with the approval of the FISA court; and section 6001 of the Intelligence Reform and Terrorism Prevention Act, which provides authority to target with FISA surveillance non-United States persons who engage in international terrorist activities but are not necessarily associated with an identified terrorist group. National security requires that these provisions reauthorized before they expire. As discussed in the Attorney General's November 9, 2009 letter, we believe that S. 1692. the USA PATRIOT Act Sunset Extension Act, as reported by the Senate Judiciary Committee, strikes the right balance by both reauthorizing these essential national security tools and enhancing statutory protections for civil liberties and privacy in the exercise of these and related authorities. We [[Page S3251]] were very pleased that the bill received bipartisan support in the Committee. Since the bill was reported, we have negotiated a number of specific changes with the sponsors of the bill which we support including in the final version of this legislation. Among these are several provisions derived from the bills reported by the House Judiciary Committee and introduced by House Permanent Select Committee on Intelligence Chairman Silvestre Reyes in November. We strongly support the prompt consideration of USA PATRIOT Act reauthorization legislation based on S. 1692, together with the changes to which our staffs have informally agreed. However, if Congress is unable to complete work on this measure before these authorities expire, it is imperative that Congress pass a temporary extension of sufficient length to ensure that there is no disruption to the availability of these vital tools in the fight against terrorists. As was previously noted in a September 14 letter from the Department of Justice to Senator Patrick Leahy, the business records authority has been used to support important and highly sensitive intelligence collection operations, of which both Senate and House leadership, as well as Members of the Intelligence and Judiciary Committees and their staffs are aware. We can provide additional information to Members concerning these and related operations in a classified setting. Finally, we remain committed to working with Congress to examine additional ways to enhance protection for civil liberties and privacy consistent with effective use of these important authorities. The Office of Management and Budget has advised us that there is no objection to this letter from the perspective of the Administration's program. Sincerely, Eric H. Holder, Jr. Dennis C. Blair. ____ Exhibit 2 Section-By-Section Summary of SA334 to S.1038 the Leahy-Paul-Cardin- Bingaman-Coons-Shaheen-Wyden-Franken-Gillibrand-Harkin-Durbin-Merkley- Boxer-Akaka Amendment (HEN11338) This amendment adds the following sections at the end of S.1038: Section 3. Additional Sunsets. This section establishes a new sunset of December 31, 2013, on the use of NSLs. This section also changes the sunset dates for provisions under the FISA Amendments Act of 2008 (Pub. L. No. 110-261) from December 31, 2012 to December 31, 2013. This section also makes conforming amendments to FISA and other applicable laws consistent with the sunsets. Section 4. Orders for Access to Certain Business Records and Tangible Things. This section modifies the standard for obtaining a court order for tangible things under FISA. Current law requires the Government to submit a statement of facts showing reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. However, current law states that the tangible things sought are presumptively relevant if the Government shows that they pertain to (a) a foreign power or an agent of a foreign power, (b) the activities of a suspected agent of a foreign power who is the subject of such an authorized investigation, or (c) an individual in contact with, or known to, an agent of a foreign power who is the subject of such authorized investigation. This section removes the presumption of relevance described above. It requires the Government to provide a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that the tangible things sought are relevant. This ensures that the Government is presenting a thorough statement of facts to the court and strengthens judicial oversight. The Department of Justice has indicated that it does not rely on this presumption, and that its current practice is to provide the Foreign Intelligence Surveillance Court with a complete statement of facts to support issuance of an order. Section 3(a)(2)(A) alters certain requirements with respect to applications made pursuant to 50 U.S.C. 1861. These changes are not intended to affect or restrict any activities approved by the FISA court under existing statutory authorities. Rather, this provision is intended to ensure that in applications made pursuant to 50 U.S.C. 1861, the Government must submit a statement of the facts it relies on to support its belief that the items or information sought are relevant to an authorized investigation and that such relevance is not to be presumed based on the presence of certain factors. To obtain bookseller records or library records that contain personally identifiable information, the Government must provide a statement of facts showing reasonable grounds to believe the tangible things are relevant to an authorized investigation and pertain to (a) an agent of a foreign power, (b) the activities of a suspected agent, or (c) an individual in contact with or known to a suspected agent of foreign power subject to the investigation. ``Bookseller records'' are defined as meaning any transactional records reflecting the purchase or rental of books, journals, or magazines, whether in digital or print form. The Department of Justice has already agreed to implement this requirement administratively. This section also requires court review of minimization procedures. Finally, this section includes transition procedures to ensure that any order in effect at the time of enactment remains in effect until the expiration of the order. Section 5. Orders for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes. Under current law, in order to obtain a FISA pen/trap, the Government must certify that the information sought is merely foreign intelligence information or is relevant to an investigation to protect against terrorism. The bill modifies the standard for obtaining a pen/trap to require the Government to provide a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that the information likely to be obtained is relevant. This ensures that the Government is presenting a thorough statement of facts to the court and strengthens judicial oversight. Section 4(a)(2)(A) alters certain requirements with respect to applications made pursuant to 50 U.S.C. 1842. These changes are not intended to affect or restrict any activities approved by the FISA court under existing statutory authorities. Rather, this provision is intended to ensure that in applications made pursuant to 50 U.S.C. 1842, the Government must submit a statement of the facts it relies on to support its belief that the items or information sought are relevant to an authorized investigation. This section also requires minimization procedures, which are not required under current law, and makes those procedures subject to court review. Section 4(b) governs procedures for minimization of the retention and dissemination of information obtained pursuant to 50 U.S.C. 1842 where appropriate in exceptional circumstances. This provision is intended to provide a statutory footing for the existing practice whereby specialized minimization procedures are implemented in certain limited circumstances under FISA court authorization and oversight. Finally, this section includes transition procedures to ensure that any order in effect at the time of enactment remains in effect until the expiration of the order. Section 6. Limitations on Disclosure of National Security Letters. This section authorizes the Government to prohibit disclosure of the receipt of an NSL (there are four different statutes that authorize NSLs) where a high level official certifies that disclosure may result in danger to the national security, interference with an investigation, or danger to the life or safety of a person. The FBI has stated that its current practice is to require such a certification to include an appropriately thorough statement of facts setting forth the need for nondisclosure. The recipient of an NSL nondisclosure order may challenge the nondisclosure at any time by notifying the Government of a desire to not comply. Section 7 (below) details the process for doing so. Section 7. Judicial Review of FISA Orders and NSL Nondisclosure Orders. This section allows the recipient of a section 215 order for tangible things to challenge the order itself and any nondisclosure order associated with it. Current law requires a recipient to wait a year before challenging a nondisclosure order. This section repeals that one-year mandated delay before a recipient of an order for tangible things can challenge such a nondisclosure order in court. It also repeals a provision added to the law in 2006 stating that a conclusive presumption in favor of the Government shall apply where a high level official certifies that disclosure of the order for tangible things would endanger national security or interfere with diplomatic relations. This section also corrects the constitutional defects in the issuance of nondisclosure orders on NSLs as found by the Second Circuit Court of Appeals in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), and adopts the concepts suggested by that court for a constitutionally sound process. Id. at 883-84. The bill allows the recipient of an NSL with a nondisclosure order to notify the Government at any time that it wishes to challenge the nondisclosure order. The Government then has 30 days to seek a court order in Federal district court to compel compliance with the nondisclosure order. The court has authority to set the terms of a nondisclosure order as appropriate to the circumstances, but must afford substantial weight to the Government's argument in favor of nondisclosure. According to current Department of Justice policy, all NSLs must include a notice that informs recipients of the opportunity to contest the nondisclosure requirement through the Government-initiated judicial review. This section states that the government's application for an NSL nondisclosure order may be filed either in the district within which the authorized investigation is conducted or in the jurisdiction where the recipient's business is located. This option will ease the burden on the recipient in challenging the nondisclosure order. This section requires the Government to notify any entity that challenges a nondisclosure order when the need for nondisclosure is terminated. The Department of Justice agreed to implement this measure administratively in December 2010; therefore, this section will codify current practice. The bill also requires FISA court approval of minimization procedures in relation to the issuance of a section 215 order for production of tangible things, similar to the [[Page S3252]] court approval required for other FISA authorities such as wiretaps, physical searches, and pen register and trap and trace devices. Section 8. Certification for Access to Telephone Toll and Transactional Records. This section codifies current FBI practice in issuing an NSL, and augments oversight and transparency. Current law requires only that an official certify that the information requested in the NSL is relevant to, or sought for, an authorized investigation to protect against international terrorism or clandestine intelligence activities, or for a law enforcement investigation, counterintelligence inquiry, or security determination. This section adds a requirement that the FBI retain a written statement of specific facts showing that there are reasonable grounds to believe that the information sought is relevant to such an authorized investigation. This statement of specific facts will not be included in the NSL itself, but will be available for internal review and Office of Inspector General audits. The Department of Justice has stated that it is current policy for the FBI to retain a statement of specific facts showing the information sought through NSLs is relevant to an authorized investigation. Section 9. Public Reporting on National Security Letters. This section requires reporting of aggregate numbers based upon the total number of all NSLs issued each year, as opposed to by individual NSL. This section ensures that the FBI can keep an accurate record of the information it must disclose by allowing it to report both on persons who are the subject of an authorized national security investigation, and on individuals who have been in contact with or otherwise directly linked to the subject of an authorized national security investigation. Section 10. Public Reporting on the Foreign Intelligence Surveillance Act. This section requires that the Government produce an annual unclassified report on how the authorities under FISA are used, including their impact on the privacy of United States persons. This report shall be easily accessible on the Internet. Section 11. Audits. This section requires the DOJ Office of Inspector General to conduct audits of the use of three surveillance tools: 1) orders for tangible things under section 215 of the 2001 Patriot Act, or section 501 of FISA; 2) pen registers and trap and trace devices under section 402 of FISA; and 3) the use of NSLs. The audits will cover the years 2007 through 2013. The scope of such audits includes a comprehensive analysis of the effectiveness and use of the investigative authorities provided to the Government, including any improper or illegal use of such authorities. This section also requires the Inspectors General of the Intelligence Community to submit separate reports that also review these three provisions. The audits covering the years 2007-2009 must be completed by March 31, 2012. The audits for the years 2010-2011 must be completed by March, 31, 2013. The audits for the years 2012-2013 must be completed by March, 31, 2015. These due dates ensure that Congress will have time to fully consider the findings of the audits prior to the June 1, 2015 sunsets in the underlying bill. Section 12. Delayed Notice Search Warrants. Current law requires notification of a delayed notice search warrant within 30 days. This section requires notification of a delayed notice search warrant within seven days, or a longer period if justified. Section 13. NSL Procedures. Current law does not require minimization procedures be established, but on October 1, 2010, the Attorney General adopted procedures concerning the collection, use, and storage of information obtained in response to NSLs. This section requires that the Attorney General periodically review, and revise as necessary, those procedures, and to give due consideration to the privacy interests of individuals and the need to protect national security. If the Attorney General makes any significant changes to these NSL procedures, the Attorney General is required under this section to notify Congress, and to submit a copy of the changes. Section 14. Severability. This section includes a severability clause that will ensure that in the event any part of the bill or any amendment to the bill is found to be unconstitutional the remainder of the bill will not be affected. Section 15. Offset. This section includes a $9,000,000 offset from the Department of Justice Assets Forfeiture Fund for any direct spending that could be incurred by the provisions of the bill. Section 16. Electronic Surveillance. This section is intended to amend the FISA wiretap statute (50 U.S.C. 1805(c)(1)(A)) so as to require law enforcement to identify ``with particularity'' the target of a wiretap request under FISA. The Department of Justice has testified that, in applications to the FISA court for ``roving'' wiretaps, it must provide the court sufficient detail to identify the target with particularity. Section 17. Effective Date. This section includes an effective date of 120 days from the date of enactment for the statutory revisions made by this legislation to take effect. This period of time will provide the Government an appropriate amount of time to implement the new procedures required by the legislation. Mr. LEAHY. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mrs. BOXER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mrs. BOXER. Mr. President, I am going to speak a little bit about the PATRIOT Act, and then do I have to have consent to do anything else other than that? The PRESIDING OFFICER. Yes. Mrs. BOXER. OK. I ask unanimous consent that I be able to speak about two issues. The PRESIDING OFFICER. Without objection, it is so ordered. Mrs. BOXER. I just want to acknowledge the hard work of the chairman of the Intelligence Committee and the chairman of the Judiciary Committee on the PATRIOT Act and to state I am on an amendment Senator Leahy has authored which has bipartisan support. I think Senator Leahy's amendment puts a couple of checks and balances in this bill that I think are essential. But I hope we do not have delays because delays would cause trouble for law enforcement people and for the work we are doing to make sure we continue making progress against those who would harm this country. I fully agree with the statements we have the balance of security and liberty, and I think the Leahy amendment goes a long way toward that. But, again, we need to give law enforcement the tools they need. [...] Mr. UDALL of Colorado. Mr. President, I rise today to speak in opposition to the proposed reauthorization of the expiring provisions of the PATRIOT Act incorporated in S. 1038. I have to tell you, I find reauthorization especially troubling since we have waited until the last minute and are now being told we must rush this bill through the Senate of the United States. There are a number of PATRIOT Act provisions that are permanent, and they remain in place to give our intelligence community important tools to fight terrorism. But there are three controversial provisions we are debating, commonly known as roving wiretap, lone wolf, and business records. I have to tell you, at least from my point of view--and I think there are other Senators here who agree with me--they are ripe for abuse, and they threaten Americans' constitutional freedoms. As I start my remarks at the onset, I want to state that I firmly believe, as we all do, that terrorism is a serious threat to our great country, the United States, and we have to be focused like no other time in our history in seeking to protect our people, the American people. I sit on the Senate Armed Services Committee and the Senate Intelligence Committee. On those two committees, much of my attention is centered on keeping Americans safe, both here and abroad. I recognize that despite bin Laden's death--which we all celebrate because justice was delivered--we still live in a world where terrorism is a serious threat to our country, our economy, and to American lives. Our government does need the appropriate surveillance and antiterrorism tools to achieve these important goals--indeed, many of the PATRIOT Act's provisions which I support and have made our Nation safer since those devastating attacks on that day we will always remember, on 9/11, we know that for a fact. But the problem we confront today is there are three provisions we are debating that fail to strike the right balance between keeping us safe, while protecting the privacy rights of Coloradans and all Americans. Instead, these three provisions are far too susceptible to abuse by the Federal Government, even in the name of keeping us safe from terrorism. I do not say this lightly, but my concerns about some of these provisions have only grown since I have been briefed on their interpretation and their implementation as a member of the Intelligence Committee. [[Page S3258]] Let me share some examples. Currently, the intelligence community can place wide-ranging wiretaps on Americans without even identifying the target or the location of such surveillance. That is one concern. Second concern. The intelligence community can target individuals who have no connection to terrorist organizations. A third concern I have is they can collect business records on law-abiding Americans who have no connection to terrorism. We ought to be able to at least agree that the source of an investigation under the PATRIOT Act should have a terrorist-related focus. If we cannot limit investigations to terrorism, my concern is, where do they end? Is there no amount of information our government can collect that should be off-limits? I know Coloradans are demanding that we at least place commonsense limits on government investigations and link data collection to terrorist- related activities. If we pass this bill to extend the PATRIOT Act until 2015, it would mean that for 4 more years the Federal Government will continue to have unrestrained access to private information about Americans who have no connection to terrorism, with little to no accountability as to how these powers are used. Again, I wish to go back because we all agree the intelligence community needs effective tools to combat terrorism. But we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency democracy demands. The three controversial provisions I have mentioned can be much better balanced to protect our people. Yet it seems to me that many of my colleagues, many of our colleagues, oppose any changes. By making the PATRIOT Act provisions I have outlined permanent, we would be, in effect, preventing debate on them ever again. To travel that path would be to threaten constitutional and civil liberties we hold dear in this country. That is not the right path. Let me be clear. I do not oppose the reauthorization of these three provisions of the PATRIOT Act, but I do aim to bring forward some commonsense reforms that will allow us to strike an important balance between keeping our Nation safe, on the one hand, while also protecting privacy and civil liberties. Toward that goal, I have worked side by side with my colleagues in coming up with commonsense fixes that could receive bipartisan support. Senator Wyden from Oregon has filed an amendment, which I have cosponsored, that would require the Department of Justice disclose to Congress the official legal interpretation of the provisions of the PATRIOT Act. While I believe our intelligence practices should be kept secret, I do not believe the government's official interpretation of these laws should be kept secret. I have also filed my own amendments to address some of the problems I see with the three expiring provisions. The first amendment I have filed is bipartisan with Senator Paul of Kentucky, who is on the floor, and Senator Wyden, who has joined as well. Our amendment would modify the roving wiretap authority under section 206 of the PATRIOT Act. Specifically, our bipartisan amendment would require intelligence agencies to identify either the target or the place to be wiretapped. They currently do not have to do so. I believe that when seeking to collect intelligence, law enforcement should at least have to identify who is being targeted. I have also filed an amendment to address the so-called ``lone wolf'' provision which currently allows the government to conduct wiretap surveillance on individuals, even when that person has no connection to a government or a terrorist organization. This amendment would simply require that should the intelligence community use the ``lone wolf'' provision, that Congress simply be notified--again, a safeguard that is not in place as we stand here today. Without safeguards like that, how do we in this body conduct our constitutional duties of oversight? Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of business record materials that can be collected under section 215 of the PATRIOT Act. This amendment would still allow law enforcement to use the PATRIOT Act to obtain such records but would require these entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities. Right now, law enforcement can currently obtain any kind of records. In fact, the PATRIOT Act's only limitation states that such information has to be related to any tangible thing. That is right. As long as these business records are related to any tangible thing, the U.S. Government can require businesses to turn over information on all their customers, whether or not there is any link to terrorism. Mr. WYDEN. Would my colleague yield for a question? Mr. UDALL of Colorado. Yes. Mr. WYDEN. It seems to me the Senator has laid out the case for why there needs to be a thoughtful debate about the PATRIOT Act and what is necessary to strike the key balance between fighting terrorism ferociously and protecting our liberties. I am interested in what my colleague thinks about the proposition of how you have a thoughtful debate on these issues, when there is secret law where, in effect, the interpretation of the law, as it stands today, is kept secret. So here we are, Senators on the floor, and we have colleagues of both political parties wanting to participate. Certainly, if you are an American, you are in Oregon or Colorado, you are listening in, you want to be part of this discussion. But yet the executive branch keeps secret how they are interpreting the law. What is the Senator's sense about how we have a thoughtful debate if that continues? Mr. UDALL of Colorado. The Senator from Oregon has put his finger on why it is so important to have a debate on the floor and not rush these provisions to the House because of a deadline that I think we can push back. We can, as you know, extend the PATRIOT Act in its present form a number of other days or a number of weeks in order to get this right. But the Senator from Oregon makes the powerful point that the law should not be classified--as far as its interpretation goes. Of course, we can protect sources and methods and operations, as we well should. Both of us serve on the Intelligence Committee. We are privy to some information that should be classified. But we have come to the floor to make this case because of what we have learned on the Intelligence Committee. Mr. WYDEN. Well said. Mr. UDALL of Colorado. I thank the Senator for his question. I look forward to his comments in a few minutes. The Senator from Oregon, in effect, points out that these are just a few of the reform ideas we could debate. But without further debate on any of these issues, this or any other administration can abuse the PATRIOT Act and could actually deny us, as Members of Congress, whether in this Congress or future Congresses, the opportunity to fulfill our oversight responsibilities on behalf of the American people. I voted against the original passage of the PATRIOT Act in 2001, and I plan to vote against the reauthorization of the expiring provisions this week, unless we implement some reforms that will sensibly restrain these overly broad provisions. Simply put--again, to make the point that the Senator from Oregon made so importantly--I believe Congress is granting powers to the executive branch that lead to abuse and, frankly, shield the executive branch from accountability. It has been 10 years since we first passed this law, and there has been very little opportunity to improve the law. I resist this rush to again rubberstamp policies that threaten the very liberty we hold dear. I recently supported a short-term extensions of the expiring provisions before us as a bridge to take time and debate and amend the PATRIOT Act and its controversial provisions. But we were notified--unfortunately, a few days ago--that we would be voting on a 4-year extension of these expiring provisions. That is not the way to assure Americans that we are diligently considering these important public decisions. In Federalist 51, James Madison, whom we venerate, who was the author of many of the documents that structure the way in which we organize and operate our democracy, wrote: ``In [[Page S3259]] framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.'' The bill before us does not live up to that standard. I believe it seriously risks the constitutional freedoms of our people. We need to strike a better balance between giving our national security and law enforcement officials the tools necessary to keep us safe, while not damaging the very Constitution we have sworn to support and defend. By passing an unamended reauthorization, we are assuring that Americans will live with the status quo for 4 more long years. I believe this bill may well be a lost opportunity to improve the balance between our security and our civil liberties. That is not the result that our Founding Fathers envisioned, and it is not a result that our constituents want. For these reasons, if the PATRIOT Act provisions are not amended, I plan to vote no on the motion to invoke cloture and on passage of S. 1038. Before I yield the floor, I wish to make one last historical reference. Ben Franklin, one of our Founding Fathers, said, compellingly and presciently: ``A society that would sacrifice essential liberties for short-term security deserves neither.'' I think that is the question before us. There is a way forward. There is a way to keep the PATRIOT Act in place to protect our national security but also to protect our essential liberties. But in order to do that, we have to have a chance to debate and pass these important amendments. I yield the floor. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, before my colleague leaves the Chamber, I wished to tell him what a welcome addition he has been to the Intelligence Committee. I have served on that committee for 10 years. We have had excellent chairs--first, Senator Roberts, then Senator Rockefeller, Senator Feinstein. So we continue to try to look for bipartisan support for trying to strike that balance between collective security and individual liberty. I am struck both by the clarity of your statement and the fact that those who are going to vote on these amendments and the American people who are listening in tonight ought to be able to get, in a straightforward, easy-to-access fashion, how the executive branch is currently interpreting the PATRIOT Act. The fact is, law professors give assignments to their students to write analyses of the PATRIOT Act. The Congressional Research Service actually has an analysis out. But it is not possible to get the official interpretation of how the U.S. Government frames this law as far as the operations are so essential for our country. The Senator has laid it out very well. It is a pleasure to serve with him on the Intelligence Committee. Mr. President, let me sum up with what this issue has come down to, to me. These are dangerous times. If you go into the Intelligence Committee several times a week, as Senator Udall and I do, you come away with the indisputable judgment that there are threats to the well-being of this country, that there are people who do not wish our citizens well. In these dangerous times, the sources and methods of our antiterror operations absolutely must be kept secret. That is fundamental to the work of the intelligence community--keeping the sources and methods of those who serve us so gallantly secret and ensuring that they are as safe as possible. But while we protect those sources and methods, the laws that authorize them should not be kept secret from the American people. That is what this is all about--whether the laws that authorize the operations that are so essential, which have been passed by the Congress--that their interpretation should be kept secret from the American people. I call it ``secret law.'' I want to say to this body, yes, we need secret operations, but secret law is bad for our democracy. It will undermine the confidence the American people have in our intelligence operations. You might recall that it was only a few years ago, during the Bush administration, that they secretly reinterpreted the warrantless wiretapping statutes to say that it was possible to wiretap our people without a warrant. When it came out, it took years to sort that out, with the executive branch and the Congress working together. I don't want to see that happen again. So that is why I have joined Senator Udall in these amendments, and we hope we can get bipartisan support for what we are trying to do and especially ensure that the official interpretation of the PATRIOT Act, an important intelligent statute, is made public to the American people, and I think it can be done in a way without jeopardizing our sources and methods. One of the reasons Senator Udall, I, and others feel so strongly about this is--and Senator Udall touched on this--that this is a time when Congress should finally say we are not just going to keep kicking the can down the road. That is what has been done again and again over the last decade. The PATRIOT Act was passed a decade ago, during a period of understandable fear, having suffered in our Nation the greatest terrorist attack in our history. So the PATRIOT Act was born out of those great fears. It seems to me that now is the time to revisit that and ensure that a better job is done of striking the balance between fighting terror and protecting individual liberty. Unfortunately, every time over the last decade there has been an effort to do just that--revisit this and strike a better balance--we have had the same pattern; we have said we just have to get it done quickly and we really don't have any time to consider, for example, the thoughtful ideas Senator Udall has mentioned. I just don't think it is time now to once again put off a real debate on the PATRIOT Act for yet another always-distant day. There is an irony about what this is all about, and that is that Senators are going to want to consider the amendments of Senator Udall--and I believe Senator Paul is here, and others who care strongly about this. It is awfully hard to have a thoughtful debate on these specific amendments, whether it is the Leahy amendment, the Paul amendment, the Udall amendment, or the ones we have together, if, in fact, you cannot figure out how the executive branch is interpreting the law. An open and informed debate on the PATRIOT Act requires that we get beyond the fact that the executive branch relies on the secret legal interpretations to support their work, and Members of the Senate try to figure out what those interpretations are. Here are the rules. If a U.S. Senator wants to go to the Intelligence Committee--and I think Senator Udall touched on this--the Senator can go there and get a briefing. Many Members of Congress, however, don't have staff members who are cleared for those kinds of briefings. Under Senate rules, it is not possible for Senators to come down here and discuss what they may have picked up in one of those classified briefings. I just don't think, with respect to the legal interpretation, that is what the American people believe we ought to be doing. The American people want secret operations protected. They understand what sources and methods are all about and that we have to have secrecy, for example, for those in the intelligence community to get the information we need about sleeper cells and terrorist groups and threats we learn about in the Intelligence Committee. But that is very different from keeping these legal interpretations secret. In my view, the current situation is simply unacceptable. The American people recognize that their government can better protect national security if it sometimes is allowed to operate in secrecy. They certainly don't expect the executive branch to publish every detail about how intelligence is collected. Certainly, Americans never expected George Washington to tell them about his plans for observing troop movement at Yorktown. But Americans have always expected their government to operate within the boundaries of publicly understood law. As voters, they certainly have a right to know how the law is being interpreted so that the American people can ratify or reject decisions made on their behalf. To put it another way, Americans know their government will sometimes conduct secret operations, but they [[Page S3260]] don't believe the government ought to be writing secret law. The reason we have felt so strongly about this issue of secret law is that it violates the trust Americans place in their government and it undermines public confidence in government agencies and institutions, making it harder to operate effectively. I was on the Intelligence Committee, before Senator Udall joined us, when Americans were pretty much stunned to learn the Bush administration had been secretly claiming for years that warrantless wiretapping was legal. My own view was that disclosure significantly undermined the public trust in the Department of Justice and our national intelligence agencies. Our phones were ringing off the hook for days when the American people learned about it. The Congress and executive branch had to retrench and figure out how to sort it out. I certainly believe the public will be surprised again when they learn about some of the interpretations of the PATRIOT Act. Government officials cannot hope to indefinitely prevent the American people from learning the truth. This is going to come out, colleagues. It is going to come out at some point, just as it came out during the Bush administration about warrantless wiretapping. It is going to come out. It is not going to be helpful to the kind of dialog we want to have with the American people, an open and honest dialog, to just continue this practice of secret law. The reason I am offering or seeking to offer this amendment with Senator Udall, Senator Merkley, and other colleagues with respect to changing the practice of secret law is that we have raised this issue numerous times--on the Senate floor, in correspondence, in meetings with senior administration officials--and I have been joined in the past by other Senators, and we talked about it with respect to the problem in the news media. But the problem persists and the gap between the public's understanding of the PATRIOT Act and the government's secret interpretation of it remains today. Once information has been labeled ``secret,'' there is a strong bureaucratic tendency--it almost gets in the bureaucratic chromosomes to keep it secret and not revisit the original decision. So what Senator Udall and I and colleagues seek to do is correct this problem. We seek to offer an amendment that states that it is entirely appropriate for particular intelligence collection techniques to be kept secret but that the laws that authorize these techniques should not be kept secret and should instead be transparent to the public. We seek to offer an amendment that states that U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public's understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public. So under this proposal, the Attorney General and Director of National Intelligence would--and we note this--provide a classified report to the congressional intelligence committees. It makes it clear that intelligence collection continues to go forward, and our amendment would simply require the Attorney General to publicly lay out the legal basis for the intelligence activities described in the report. The amendment specifically directs the Attorney General not to describe specific collection, programs, or activities, but simply to fully describe the legal interpretations and analyses necessary to understand the government's official interpretation of the law. Let me close--I see colleagues waiting to speak--and say that we can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used, but I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means. All that Senator Udall and I seek to do, along with other colleagues, is to restore some of that openness and honesty in an area where it is now needed. I hope colleagues on the floor of the Senate and in the Obama administration will join in that effort. Mr. PRYOR. Mr. President, I want to briefly comment on yesterday's cloture vote on the motion to proceed to S.1038, the extension of the amendments to the Foreign Intelligence Surveillance Act. Unfortunately, yesterday I was attending the funeral of a very close family friend who passed away on Friday. However, I wish to express my support for the motion to proceed and the extensions themselves. I believe these extensions, section 6001 (a) of the Intelligence Reform and Terrorism Prevention Act, and sections 206 and 215 of the USA PATRIOT Act, continue to provide the right balance between safety and individual rights. I understand those with concerns about the breadth and scope of this law and believe it is important to continue to ask these questions and examine the limits and extent of these amendments as well as other aspects of the law. In the wake of bin Laden's recent killing, the importance and significance of our intelligence resources are without question. Our intelligence community must have the necessary tools at its disposal to protect us from the threat of terrorism. This legislation helps clarify what is legal and proper, and I believe strikes a balance between prioritizing our safety without trampling individual rights. Mr. BROWN of Ohio. Mr. President, yesterday the Senate conducted a procedural vote on whether it would begin deliberation on S. 1038, the PATRIOT Sunsets Extension Act of 2011. Due to inclement weather, my flight from Cleveland returned to Cleveland, and I was unable to make this vote. However, if I had been in attendance, I would have voted ``yea.'' I have long expressed concerns about the PATRIOT Act, specifically about its scope and effectiveness. For too long, Americans have been asked to cede their constitutional rights in the name of national security. There is no question that our law enforcement authorities need the tools to fight terrorism and keep Americans safe, but security is not a zero sum game. Indeed, it is certainly possible to extend the PATRIOT Act while building in some additional checks and balances. But this extension does not include them. Despite my misgivings about this extension, I believe that it is important that the Senate directly address this legislation that is important to both our Nation's security and well as our civil liberties. Mr. WHITEHOUSE. Mr. President, on May 23, 2011, due to my daughter's college graduation, I was absent for vote No. 75, a motion to invoke cloture on the motion to proceed to S. 1038, the USA PATRIOT Sunset Extension Act of 2011. Had I been present, I would have voted ``yea.'' Mr. BROWN of Massachusetts. Mr. President, on May 23 the Senate voted on a motion to invoke cloture on the motion to proceed to the USA PATRIOT Act Sunset Extension Act of 2011, S. 193. I was necessarily absent for this vote. Had I been able to vote, I would have voted ``aye.'' The act will extend sections 206 and 215 of the Patriot Act and section 6001 of the Intelligence Reform and Terrorism Prevention Act, IRTPA, for 4 more years before they expire on May 27. The PATRIOT Act, with these provisions, has provided vital tools and resources to our counterterrorism professionals that have enabled them to disrupt dozens of active terrorist plots. By empowering our counterterrorism professionals to do their jobs, we can continue to disrupt and prevent terrorist attacks in the homeland and abroad. I voted for the 90-day extension of these three provisions in February and I look forward to voting on final passage of the long-term extension this week. I yield the floor and suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. MORAN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. [...] Mr. REID. Mr. President, we have been working for several days--I have been working on it for a lot longer than several days--but for several days publicly on a process to move forward with the PATRIOT Act. We have worked over the last several days to work something out that is an excellent compromise. Is this bill something everybody in the Senate likes or everybody in the House likes? The answer is no. But we all know how important it is that we continue this legislation. So Senator McConnell and I and Speaker Boehner have agreed on a way to move forward. The alternative is to have a long long-term extension that the House would send us and I don't think that would be to anyone's benefit, so we are moving forward. I have tried to do it with the bill that we invoked cloture on yesterday. I have had many conversations with Senator Paul and others, but principally him, and tried to come up with a process to allow Senator Paul to offer amendments--and others to offer amendments; it is not just him. I have been unsuccessful. I understand Senator Paul's exasperation because this is something that is extremely important to him and there was every desire, from my perspective and I think that of this body, to have a full and complete debate on the PATRIOT Act. But the Senate does not always work that way. There have been a lot of things that have gotten in the way and the time is suddenly upon us. We have to complete this legislation by midnight on Thursday. We cannot let the PATRIOT Act expire. I have a responsibility to try to get this bill done as soon as possible, in spite of the fact that some of my Senators and some Republican Senators would rather I did it some other way at some other time. But I can't do that. I have to get this done. We know, since bin Laden was killed, that there has been a lot of information discovered from him about what he did. One thing that is very clear is that he had instructed all of his lieutenants to focus all of their attention on the United States and its assets. So we cannot let this expire and I am going to do everything I can to make sure this does not happen. Senator Paul and I have tried to work out something. He feels strongly about at least three of his amendments. I say, even though he and I disagree on a number of things politically, I have found in his time here in the Senate, as it relates to me, he is a very pleasant man with strong feelings. I have only the highest regard for him and I am sorry I cannot make this system we have in the Senate more in keeping with his desires to get things done. But as he will learn over the years, it is always difficult to get what you want in the Senate. It doesn't mean you won't get it, but sometimes you have to wait and get it done at some subsequent time. Senator Paul has been very upfront with me. He has never hidden a punch. [[Page S3262]] He said: I feel strongly about a number of these amendments and I am not going to agree to let this go forward unless I have these amendments, and he has been very reasonable. He has brought his number down from 11 to 3 or 4 and I appreciate that. But the time has come for me to take some action. Again, I repeat, I do not have the luxury of waiting for a better time. However, I would like to be able to allow the Senator from Kentucky to give a few of his stem-winding speeches. He does a very good job presenting himself. But in order to expedite what I think is so important to continue the country's intelligence operations, I am going to move to table the pending motion to proceed to S. 1038. Following that vote, I am going to ask the Senate to proceed to a message received from the House earlier today. I will then move to concur with the amendment which will be the extension of the PATRIOT Act and I will file cloture on that motion. Mr. President, I move to table and I ask for the yeas and nays. The PRESIDING OFFICER. The question is on agreeing to the motion. Is there a sufficient second? There is a sufficient second. The clerk will call the roll. The legislative clerk called the roll. Mr. PAUL (when his name was called). Present. Mr. DURBIN. I announce that the Senator from Delaware (Mr. Carper), the Senator from California (Mrs. Feinstein), the Senator from North Carolina (Mrs. Hagan), the Senator from South Dakota (Mr. Johnson), the Senator from Louisiana (Mrs. Landrieu), the Senator from Vermont (Mr. Leahy), the Senator from Connecticut (Mr. Lieberman), the Senator from Missouri (Mrs. McCaskill), and the Senator from New York (Mr. Schumer) are necessarily absent. I further announce that, if present and voting, the Senator from Vermont (Mr. Leahy) would vote ``nay.'' Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Blunt), the Senator from Texas (Mrs. Hutchison), and the Senator from Kansas (Mr. Roberts). The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote? The result was announced--yeas 74, nays 13, as follows: [Rollcall Vote No. 76 Leg.] YEAS--74 Akaka Alexander Ayotte Barrasso Baucus Bennet Blumenthal Boozman Boxer Brown (MA) Brown (OH) Burr Cardin Casey Chambliss Coats Coburn Cochran Collins Conrad Coons Corker Cornyn Crapo DeMint Durbin Enzi Franken Gillibrand Graham Grassley Harkin Hatch Hoeven Inhofe Inouye Isakson Johanns Johnson (WI) Kerry Kirk Klobuchar Kohl Kyl Lautenberg Levin Lugar Manchin McCain McConnell Menendez Mikulski Moran Murray Nelson (NE) Nelson (FL) Portman Pryor Reed Reid Risch Rockefeller Rubio Sessions Shelby Snowe Stabenow Thune Toomey Vitter Warner Webb Whitehouse Wicker NAYS--13 Begich Bingaman Cantwell Heller Lee Merkley Murkowski Sanders Shaheen Tester Udall (CO) Udall (NM) Wyden ANSWERED ``PRESENT''--1 Paul NOT VOTING--12 Blunt Carper Feinstein Hagan Hutchison Johnson (SD) Landrieu Leahy Lieberman McCaskill Roberts Schumer The motion was agreed to. The PRESIDING OFFICER. The majority leader is recognized. ____________________ [Congressional Record: May 24, 2011 (Senate)] [Page S3263-S3265] PATRIOT SUNSETS EXTENSION ACT Mr. MERKLEY. Mr. President, I rise to address the 4-year extension of the PATRIOT Act and to oppose that extension if the bill is not modified. I want to take us back to the principles on which our Nation was founded and, indeed, before our Declaration of Independence and before our Constitution when there was a deep tradition of the right of privacy. Let's take William Pitt's declaration in 1763. He said: The poorest may, in his cottage, bid his defiance to all the forces of the Crown . . . the storm may enter; the rain may enter. . . . But the King of England may not enter. It is the philosophy embedded in William Pitt's declaration of the sanctity of a man's home that underwrote the principle of the fourth amendment. That reads as follows: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The fourth amendment is powerful protection of personal privacy from the overreach of government. How does that compare in contrast to the PATRIOT Act that is before us? Let me tell you the standard that is in the PATRIOT Act for the government to seize your papers, to search your papers, and that standard is simply ``relevant'' to an ``investigation.'' Relevant to an investigation? That is the legal standard set out in the PATRIOT Act. That is a standard that was written to be as broad and low as possible. What does it mean to be ``relevant'' to an investigation? It certainly isn't something as strong as probable cause, which is in the fourth amendment. It certainly isn't describing the place to be searched, the persons and things to be seized. Indeed, the word ``relevant'' doesn't have a foundation of legal tradition that provides any boundaries at all. Let's take the term ``investigation.'' ``Investigation'' is in the eye of the beholder. I want to look into something, so that is an investigation. What happens to these words in the PATRIOT Act, in the section of the PATRIOT Act that addresses the sweeping powers to investigate Americans down to the books they check out, their medical records, and their private communications? Quite simply, there is a process in theory in which a court, known as the FISA Court, makes a determination, but they make the determination upon this standard--that this standard is ``relevant to an investigation.'' Now, the interpretation of that clause is done in secret. I would defy you to show me a circumstance where a secret interpretation of a very minimal standard is tightened in that secret process. But we don't know because we are not being told. This is why I support Senator Wyden's amendment. Senator Wyden has said we should not have secret law--secret interpretation of clauses that may result in the opposite of what we believe is being done. That is a very important amendment. But that amendment will not be debated on the floor of the Senate. It won't be debated because a very clever mechanism has just been put into play to prevent amendments from being offered and debated on the floor of the Senate on the 4-year extension of the PATRIOT Act. Quite frankly, I am very disturbed by that mechanism--a parliamentary move in which a House message is brought over and the regular bill is tabled, and that message will then have the regular PATRIOT Act put into it as a privileged motion, and it will be returned to the House. The effect therein is, because the tree has been filled, which is parliamentary-speak for ``no amendments will be allowed,'' we won't get to debate Senator Wyden's amendment. There are a number of Senators who have proposed to change this standard--the standard ``relevant to an investigation''--to make it a legally significant standard and make sure it is not being secretly interpreted to mean almost nothing. But we won't have a [[Page S3264]] debate in this Senate over changing that low and insignificant standard into a meaningful legal standard with teeth in it, that has court cases behind what it means and interpretations that will protect us. There is no question that every Member of this Chamber has an enormous sense of responsibility in the security of our Nation. In that sense, there is significant feeling on every person's part that we need to enable our intelligence services, our military, to do the necessary work to protect our Nation. But that does not mean we should avoid having a debate about whether the PATRIOT Act, as written today, without an amendment, rolls over the top of the fourth amendment of the Constitution of the United States of America. We can have both personal privacy and a high standard, as set out in the fourth amendment, for the seizure of papers and security. Those two things are not at war with each other. We have had two centuries in this Nation of embracing the twins of personal privacy and security. We have made that work. We can continue to make it work. I rise in protest about the process unfolding in the Senate in which amendments will not be presented and will not be debated. I rise to say the fourth amendment matters; that it sets a significant standard against unreasonable seizures and searches, and that the PATRIOT Act, as written, does not provide a clear implementation of the fourth amendment, a clear protection of the fourth amendment. I will close by noting it has been nearly 250 years since William Pitt declared: The poorest may, in his cottage, bid his defiance to all the forces of the Crown . . . the storm may enter; the rain may enter . . . but the King of England may not enter. Let us have a debate in this Chamber about modifications that protect our security but that hold faith with the principle William Pitt enunciated and with the principles we have adopted in the fourth amendment to the Constitution; that the right of the people against unreasonable searches and seizures shall not be violated. I yield the floor, and I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. DURBIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so ordered.