Congressional Record: February 15, 2006 (Senate)
Page S1325-S1344

                               TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to S. 2271, which the 
clerk will report.
  The assistant legislative clerk read as follows:

       Motion to proceed to consider S. 2271, a bill to clarify 
     that individuals who receive FISA orders can challenge 
     nondisclosure requirements, that individuals who receive 
     national security letters are not required to disclose the 
     name of their attorney, that libraries are not wire or 
     electronic communication service providers unless they 
     provide specific services, and for other purposes.

  The PRESIDING OFFICER. Who seeks time?
  The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, I rise today to speak in support of the 
motion to proceed and in support of the underlying legislation itself. 
This bill was introduced to make changes, changes to the PATRIOT Act 
conference report that was delayed at the end of last year, just as we 
were ready to adjourn for the holidays.
  That conference report had some flaws and weaknesses. I began 
focusing on and working on reauthorization of the PATRIOT Act well over 
a year and a half ago, recognizing that we could do more to improve the 
original Act, we could make this bill more balanced by adding better 
protections for civil liberties even as we reauthorized the law 
enforcement tools in the PATRIOT Act to give law enforcement power to 
conduct terrorism investigations.
  I don't think there is anyone in this Chamber who believes we should 
not provide law enforcement with tools necessary to deal with the 
threat of terrorism, both domestically and overseas. But whenever we 
give law enforcement new tools, new powers, we want to make sure they 
are balanced, balanced by the ability of individuals who think they 
have been singled out unfairly to raise objections in court, balanced 
by the ability of individuals to seek legal advice, balanced by 
restricting the use of these tools to ensure they are only used in 
appropriate circumstances. That is what protecting civil liberties is 
all about.
  As the process of reauthorizing the PATRIOT Act began well over a 
year and a half ago, a bipartisan group of Senators, including myself, 
joined to highlight a number of areas where we felt the legislation 
could and should be improved and strengthened to provide the kinds of 
protections I mentioned.
  We spoke with Justice Department officials, not a month or 2 months 
before this process began, but, as I've said, over a year and a half 
ago, raising our concerns in a clear, articulate fashion, trying to 
make certain that DOJ knew full well that there was a bipartisan group 
that would push to make changes to improve the PATRIOT Act and that we 
would be willing to stand up for those changes and stand up on 
  Unfortunately, the people who should have been engaged in this 
discussion process early on simply were not and much of the work was 
left to the very end of the process, and continued after the law was 
originally set to expire at the end of last year. As a result, changes 
that should have been made early were not, and we found ourselves

[[Page S1326]]

with reauthorization legislation that could not win enough bipartisan 
votes to gain passage at the end of December.
  What I wish to do today is to talk about the changes that were made 
to the PATRIOT Act earlier in the reauthorization process that better 
safeguard civil liberties, and the changes that are in this underlying 
legislation that I think will allow us to move forward with some 
confidence that we have made additional improvements since the cloture 
vote in December.
  In the conference report that was delayed, I certainly agree that 
there were many significant improvements made to the original PATRIOT 
Act. For example, improvements were made to add clarity to a roving 
wiretap order to require more specificity as to the target or location 
of the surveillance to be conducted. Improvement was made to add 
clarity to delayed notification search warrants, which are search 
warrants that are conducted without immediately telling the targets of 
the search.
  I think delayed notice search warrants are appropriate tools for law 
enforcement, but at a certain point law enforcement either needs to 
inform the target of the search or get agreement from a judge to 
further delay the notification. In the delayed conference report we 
added clarity. We added a requirement that a target must be notified of 
a search within 30 days unless a judge agrees to continue delaying the 
  We were successful when we took a stand at the end of last year in 
moving the sunset period in the draft conference report from a 7-year 
sunset on the most controversial provisions of the PATRIOT Act to a 4-
year sunset period, so that 215 subpoena power, a very significant 
subpoena power for law enforcement to access the most sensitive of 
records, the lone wolf provisions and the roving wiretap provisions I 
mentioned, would have to be reviewed four years from now.

  All of these were improvements to the PATRIOT Act. But a number of us 
still had many concerns, concerns in three particular areas.
  First, our most significant concern was and is the breadth of the 
standard for obtaining a 215 subpoena. We felt--and we still feel--it 
is unnecessarily broad. It could result in the gathering of information 
that is not only extraneous, but pertains to innocent Americans. We 
think that standard should be more narrow so that there be shown that 
an individual who is a target of this subpoena be connected to a 
suspected terrorist or suspected spy. The current standard of mere 
relevance to a terrorist investigations is unnecessarily broad.
  Second, we feel there should be a clear judicial review, a review 
before a judge, of the gag order associated with the 215 subpoena. If 
you are the recipient of one of these subpoenas, that subpoena comes 
with a restriction on your ability to tell anyone about the subpoena. 
But you ought to be able to challenge that gag order before a judge.
  Third, we feel the provision in the conference report that required 
the recipient of a national security letter to disclose the name of 
their attorney to the FBI was punitive and might have the result of 
discouraging an individual from seeking legal advice. Over the last 6 
weeks, I have worked with a number of my colleagues, Democrats and 
Republicans, on changes to the PATRIOT Act, negotiating with the 
Justice Department, making Members of the House aware of what we were 
pursuing, working with Chairman Arlen Specter, who has been very 
helpful throughout this whole process. Senator Leahy, Senator Durbin, 
Senator Feingold have all been part of these discussions and I have 
worked to share with them the concepts we were working on, the language 
we were working on in the areas where there were still differences, 
differences between those who wanted to pass the conference report as 
it was and those of us who felt we could strike a better balance.
  In the end, we have worked out an agreement on language that has 
received bipartisan support and makes changes to the conference report 
in three areas.
  First, we add a clear, explicit judicial review process for the 215 
subpoena gag order. It is a judicial review process that is very 
similar to the judicial review process for the National Security Letter 
gag order set forth in the conference report. I think it is important 
that we stand for the principle that a restriction on free speech such 
as a gag order can be objected to in a court of law before a judge. You 
can at least have your case heard. That does not mean you will win, 
necessarily, but you can at least have your case heard.
  Second, we were able to get language striking the requirement that 
the recipient of a National Security Letter disclose the name of their 
attorney to the FBI. Again this is a punitive provision, and it could 
have the unintended effect of discouraging people from seeking legal 
  Third, we added clarification to National Security Letters as they 
pertain to libraries. Our agreement adds a provision that makes very 
clear that libraries operating in their traditional role, including the 
lending of books, including making books available in digital form, 
including providing basic Internet access, are not subject to National 
Security Letters.
  These are three areas that were highlighted as being of concern at 
the end of last year. I did--and I think the others would agree--we all 
did everything possible to stay focused on these areas of concern. We 
made improvements in each of these three areas. I think we ought to be 
able to move forward now with the reauthorization, knowing full well 
that in an effort such as this, no party ever gets everything they 
want. But having shown that there is a bipartisan group of Members of 
the Senate and I believe Members of the House as well who will look 
carefully at these measures, who will push hard for improvements, I 
think the oversight of the PATRIOT Act will be improved. I know that 
the reporting to Congress as to how this act is used will be improved. 
Requirements to report on the use of 215 subpoenas and the minimization 
procedures used to get rid of data and information on innocent 
Americans collected through 215 subpoenas and National Security Letters 
are improvements.
  So I feel confident we have legislation that is a vast improvement 
over current law in terms of protecting civil liberties. We have 
oversight that is improved and, frankly, we have a strong coalition 
within Congress that is committed to doing an effective job in making 
sure these important law enforcement tools are used effectively but 
also used fairly.
  I know not all my colleagues will support this final package. I know 
in particular Senator Feingold, who has worked extremely hard on this 
issue, is not able to support this final package. He will speak more 
eloquently than I can as to the concerns that remain, but among his 
concerns is the breadth of the 215 standard and the feeling that we 
ought to be able to agree on and work toward a standard that will 
prevent fishing expeditions, that will better protect civil liberties 
but still enable law enforcement to do their job. I share that concern 
and that goal, but I at the same time recognize we have an obligation 
to take the many gains we received throughout the reauthorization 
process and reauthorize this legislation so we can move forward, focus 
on our outstanding concerns, and focus on the agenda that still sits 
before Congress.
  I thank the President for the time and the opportunity to lay out the 
improvements that are in the package before us. I look forward to the 
debate and the discussion, but I do hope we can, in a deliberate 
fashion, complete work on this legislation that now has gained 
bipartisan support, has gained additional votes from Republicans, 
including Senator Craig, Senator Hagel, Senator Murkowski, who have 
raised concerns, Senator Durbin, Senator Feinstein, and others on the 
Democratic side who have stood with us too since the end of last year 
in the hopes of improving the balance of the conference report. I think 
we do the country a service by enacting this legislation now with a 
commitment to continue to try to improve it wherever we can.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, 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.

[[Page S1327]]

  Mr. SUNUNU. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  Mr. FEINGOLD. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator cannot reserve the right to 
  Is there objection?
  Mr. SUNUNU. I ask consent that the Senator be allowed to make his 
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, I object to raising the quorum call.
  The PRESIDING OFFICER. Without objection, the quorum call is 
terminated, and the Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, I ask unanimous--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. FEINGOLD. 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. FEINGOLD. Mr. President, I ask unanimous consent that I be 
recognized to speak at 11 a.m. on the motion to proceed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. 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. Feingold. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Graham). Without objection, it is so 
  Mr. FEINGOLD. Mr. President, it will come as no surprise that I would 
like to talk about the PATRIOT Act today, and certainly I listened to 
the remarks of the Senator from New Hampshire and have greatly enjoyed 
the experience of working with him on this issue for the last couple of 
  I, of course, come to a very different conclusion about the matters 
before us. I strongly oppose proceeding to the consideration of S. 
2271, which is legislation introduced by some of my friends and 
colleagues to implement the deal on the PATRIOT Act that was struck by 
the White House last week.
  Some may argue that there is no harm in passing a bill that could 
charitably be described as trivial. But protecting the rights of law-
abiding Americans is not trivial, and passage of S. 2271 is the first 
step toward passage of the flawed PATRIOT Act conference report.
  I will oppose both measures, and I am prepared to discuss at length 
my reasons for doing so. I do greatly respect the Senators who 
negotiated this deal, but I am gravely disappointed in the outcome. The 
White House would agree to only a few very minor changes to the same 
PATRIOT Act conference report that could not get through the Senate 
just back in this past December. These changes do not address the major 
problems with the PATRIOT Act that the bipartisan coalition has been 
trying to fix for the past several years.
  In fact, the Senator from New Hampshire described the issues that 
brought us together, the points that brought us together. This 
agreement doesn't relate, in any significant way, to the provisions 
that we were concerned about that brought us together in a bipartisan 
  What came out of this agreement is, quite frankly, a figleaf to allow 
those who were fighting hard to improve the act to step down, claim 
victory, and move on. What a hollow victory that would be and what a 
complete reversal of the strong, bipartisan consensus that we saw in 
this body a couple months ago.
  What we are seeing, I regret to say, is quite simply a capitulation 
on the intransigent and misleading rhetoric of the White House that 
sees any effort to protect civil liberties as a sign of weakness. 
Protecting American values is not weakness. Standing on principle is 
not weakness. Committing to fight terrorism aggressively without 
compromising the rights and freedoms this country was founded upon is 
not weakness either.
  We have come too far and fought too hard to agree to reauthorize the 
PATRIOT Act without fixing any of the major problems with the act. A 
few insignificant face-saving changes don't cut it. So I cannot support 
this deal. I strongly oppose proceeding to legislation that would 
implement it.
  I understand the pressure my colleagues have been under on this 
issue, and I again want to say I appreciate all the hard work they have 
done on the PATRIOT Act. It has been very gratifying to work on a 
bipartisan basis on this issue. It is unfortunate the White House is so 
obviously trying to make this into a partisan issue because it sees 
some political advantage in doing so. But whether the White House likes 
it, this will continue to be an issue where both Democrats and 
Republicans have concerns, and we will continue to work together for 
changes in the law. I am sure of that. But I will also continue to 
strongly oppose any reauthorization of the PATRIOT Act that doesn't 
protect the rights and freedoms of law-abiding Americans who have 
absolutely no connection whatsoever to terrorism.
  This deal does not meet that standard. Frankly, Mr. President, it 
doesn't even come close. I urge my colleagues to oppose it and I, 
therefore, ask that they oppose even proceeding to this legislation.
  I wanted to take some time to lay out the background and context for 
this ongoing debate over the PATRIOT Act, a debate that will not end 
with the reauthorization of the 16 provisions that are now set to 
expire March 10. And I want to discuss my concerns about this 
reauthorization deal with some specificity.
  Mr. President, because I was the only Senator to vote against the 
PATRIOT Act in 2001, I want to be very clear from the start. I am not 
opposed to reauthorization of the PATRIOT Act. I supported the 
bipartisan compromise, the reauthorization bill the Senate passed last 
July without a single Senator objecting. I believe that bill should 
become law.
  The Senate reauthorization bill is not a perfect bill, but it is 
actually a good bill. If that were the bill we considered back in 
December or the bill we were considering today, I would be speaking in 
support of it. In fact, we could have completed the process of 
reauthorizing the PATRIOT Act months ago if the House had taken up the 
bill that the Senate approved without any objection from any Senator on 
either side of the aisle.
  I also want to respond to those who argue that any people who are 
continuing to call for a better reauthorization package want to let the 
PATRIOT Act expire. That is nonsense. Not a single Member of this body 
is calling for any provision--not only that the bill should not be 
reauthorized, but no Senator is calling for even one provision at all 
to actually expire. There are any number of ways we can reauthorize the 
act, while amending its most problematic provisions, and I am not 
prepared to support reauthorization without adequate reform.

  Let me also be clear about how this process fell apart at the end of 
last year and how we ended up having to extend the PATRIOT Act 
temporarily past the end of 2005. In December, this body, in one of its 
prouder moments in recent years, refused to let through a badly flawed 
conference report. A bipartisan group of Senators stood together and 
demanded further changes. We made very clear what we were asking for. 
We laid out five issues that needed to be addressed to get our support.
  Let me quickly read excerpts from a letter that we sent out 
explaining our concerns:

       The draft conference report would allow the Government to 
     obtain sensitive personal information on a mere showing of 
     relevance. This would allow Government fishing expeditions. 
     As business groups like the U.S. Chamber of Commerce have 
     argued, the Government should be required to convince a judge 
     that the records they are seeking have some connection to a 
     suspected terrorist or spy.
       The draft conference report does not permit the recipient 
     of a section 215 order to challenge its automatic, permanent 
     gag order. Courts have held that similar restrictions violate 
     the First Amendment. The recipient of a section 215 order is 
     entitled to meaningful judicial review of the gag order.
       The draft conference report doesn't provide meaningful 
     judicial review of a national security letter's gag order. It 
     requires the court to accept as conclusive the Government's 
     assertion that a gag order should not be lifted, unless the 
     court determines the

[[Page S1328]]

     Government is acting in bad faith. The recipients of NSLs are 
     entitled to meaningful judicial review of a gag order.
       The draft conference report does not sunset the NSL 
     authority. In light of recent revelations about possible 
     abuses of NSLs, the NSL provision should sunset in no more 
     than four years so that Congress will have an opportunity to 
     review the use of this power.
       The draft conference report requires the Government to 
     notify the target of a ``sneak and peek'' search no earlier 
     than 30 days after the search, rather than within seven days, 
     as the Senate bill provides and as pre-PATRIOT Act judicial 
     decisions required. The conference report should include a 
     presumption that notice will be provided within a 
     significantly shorter period in order to better protect 
     Fourth Amendment rights. The availability of additional 90-
     day extensions means that a shorter initial timeframe should 
     not be a hardship on the Government.

  Those are the key parts of the letter that we sent late last year. 
Now, you might ask, in this newly announced deal on the PATRIOT Act, 
have any of these problems been solved? Have any of the five problems 
identified by the SAFE Act authors been solved?
  The answer is simple, Mr. President. The answer is: No, not a single 
one. Only one of these issues has been even partially addressed by this 
deal. The White House applied immense pressure and pulled out its usual 
scare tactics and succeeded in somehow convincing people to accept a 
deal that makes only a tiny substantive improvement to a bill that was 
actually rejected in December. This is simply not acceptable.
  I want to explain in detail my biggest concerns with the conference 
report, as modified by S. 2271, the legislation that the majority 
leader is seeking to take up. First, I want to clear up one frequent 
misconception. I have never advocated repeal of any portion of the 
PATRIOT Act. In fact, as I have said repeatedly over the past 4 years, 
I supported most of that bill. There were 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, such as the sabotage of the 
Nation's financial sector; it established a counterterrorism fund to 
allow the Justice Department offices, disabled in terrorist attacks, to 
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 
  Even some of the act's surveillance sections were reasonable. One 
provision authorized the FBI to expedite the hiring of translators. 
Another added terrorism and computer crimes to the list of crimes for 
which criminal wiretap orders could be sought. And some provisions 
helped to bring down what has been called frequently ``the wall''--the 
wall that had been built up between intelligence and law enforcement 
  Whenever we start debating the PATRIOT Act, we hear a lot of people 
saying we must reauthorize the PATRIOT Act in order to ensure that the 
wall doesn't go back up. So let me make it clear. I supported the 
information-sharing provisions of the PATRIOT Act. One of the key 
lessons we learned in the wake of September 11 was that our 
intelligence and law enforcement agencies were not sharing information 
with each other, even where the statutes permitted it.
  Unfortunately, the wall was not so much a legal problem as it was a 
problem of culture. That is not just my conclusion. The report of the 
9/11 Commission made that very clear. I am sorry to report we have not 
made as much progress as we should have in bringing down those very 
significant cultural barriers to information sharing among our 
agencies. The 9/11 Commission report card that was issued toward the 
end of last year gave the Government a ``D'' for information sharing 
because our agencies' cultures have not changed enough. A 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, apparently, our 
Government has not met that 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 on this issue of renewing or revising the PATRIOT Act. Rather than 
engage in a true debate on the controversial parts of the PATRIOT Act, 
as some in this body have done--to their credit--during this 
reauthorization process, many proponents of the PATRIOT Act point to 
the noncontroversial provisions of the act and talk about how important 
they are. They say this bill must be passed because it reauthorizes 
those noncontroversial provisions. But, that doesn't advance the 
debate; it muddies the waters because we all agree that those 
provisions should be continued.
  The point is we don't have to accept bad provisions to make sure the 
good provisions become law, or continue to be law.
  I hope I actually advance the debate. I want to spend some time 
explaining my specific concerns with the conference report and the deal 
that was struck to make a few minor changes to it. It is unfortunate 
the whole Congress could not come together, as the Senate did around 
the Senate's bipartisan compromise reauthorization bill. 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 entirely easy for me to support the Senate bill, 
which fell short of the improvements contained in the bipartisan SAFE 
Act. But at the end of the day, the Senate bill actually contained 
meaningful changes to some of the most problematic provisions in the 
PATRIOT Act--provisions I have been trying to fix since October 2001--
so I decided to support it. I made it very clear at the time, however, 
that I viewed the 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.'' Obviously, I meant it, but it appears that people either were 
not listening or weren't taking me seriously. This conference report, 
as slightly modified by this deal, unfortunately does not contain many 
important reforms to the PATRIOT Act we passed in the Senate, so I 
cannot support it. And I will fight.
  I wish to remind my colleagues of the serious problems with the 
PATRIOT Act which we have been discussing for several years now. Let me 
start with section 215, the so-called library provision, which has 
received probably the most public attention of any one of the 
controversial provisions. 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 concerns about this 
provision of the PATRIOT Act, section 215. 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. And that was really an 
extraordinary moment. It was a moment that was very slow in coming, and 
it was long overdue.
  I give credit to the Senator from Pennsylvania because it allowed us 
to start having a real debate on the PATRIOT Act. 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.
  My colleagues know as well as I do that these voices came from the 
left and the right, from big cities and small towns across America. So 
far, more than 400 State and local governmental 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, and there 
are a lot of them. 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 the floor in October of 2001. So it makes sense to start my 
discussion of the specific problems I have with the conference report 
with the infamous ``library'' provision.

[[Page S1329]]

  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 is all they 
had to say. That is 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 a 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--no discretion 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.
  Some in the administration and even in this body took the position 
that people shouldn't be able to criticize these provisions until they 
could come up with a specific example of ``abuse.'' The Attorney 
General has repeatedly made that same argument, and he did so again in 
December in an op-ed in the Washington Post when he dismissed concerns 
about the PATRIOT Act by saying that ``there have been no verified 
civil liberty abuses in the 4 years of the Act's existence.''
  First of all, that has always struck me as a strange argument since 
215 orders are issued by a secret court and people who receive them are 
prohibited by law from discussing them. In other words, the law is 
designed--it is actually designed--so that it is almost impossible for 
you to know if abuses have occurred. But even more importantly, the 
claim about lack of abuse just isn't credible anymore, given what we 
now know about how this administration views the surveillance laws that 
this body, this Congress, writes. We now know that for the past 4-plus 
years, the Government has been wiretapping the international 
communications of Americans inside the United States without obtaining 
the wiretap orders required by statute.
  If we want to talk about abuses, I can't imagine a more shocking 
example of an abuse of power than to violate the law by eavesdropping 
on American citizens without first getting a court order based on some 
evidence, some evidence that they are possibly criminals or terrorists 
or spies. So I don't want to hear again from the Attorney General or 
anyone on this floor that this Government has shown it can be trusted 
to use the power we give it with restraint and care.
  The Government should not have those kinds of broad, intrusive powers 
in section 215--not this Government, not any government. The American 
people shouldn't have to live with a poorly drafted provision which 
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 could easily be written into the law--easily be written into 
the law--without compromising their usefulness as a law enforcement or 
antiterrorist 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. When I 
say ``some connection,'' that is what I mean. The Senate bill's 
standard is the following: No. 1, that the records pertain to a 
terrorist or spy; No. 2, that the records pertain to an individual in 
contact with or known to a suspected terrorist or spy; or No. 3, that 
the records are relevant to the activities of a suspected terrorist or 
spy. That is the three-prong test in the Senate bill, and I believe it 
is more than adequate to give law enforcement the power it needs to 
conduct investigations while also sufficiently protecting the rights of 
innocent Americans. It would not limit the types of records the 
Government could obtain, and it does not go as far to protect law-
abiding Americans as I would prefer, but it would make sure the 
Government cannot go on fishing expeditions into the records of 
completely innocent people.

  The Senate bill would also give recipients of the 215 order an 
explicit, meaningful right to challenge those orders and the 
accompanying gag orders in court. These provisions passed the Senate 
Judiciary Committee unanimously after tough negotiations late into the 
night, and as anyone familiar with the Judiciary Committee knows, 
including the Chair, that is no mean feat, to get that done in the 
Judiciary Committee on any issue.
  The conference report did away with this delicate provision. First 
and most importantly, it does not contain the critical modifications to 
the standard for section 215 orders. The Senate permits the Government 
to obtain business records only if it can satisfy one or more of the 
prongs of the three-prong test I just described. This is a broad 
standard, and it has a lot of flexibility. But it retains the core 
protection--the core protection--that the Government cannot go after 
someone who has no connection whatsoever to a terrorist or spy or their 
  The conference replaces the three-prong test with a simple relevance 
standard. It then provides a presumption of relevance that 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 just relevant to an authorized intelligence 
investigation--that is all--just relevant to an authorized intelligence 
investigation. Relevance is a very broad standard that could arguably 
justify the collection of all kinds of information about all kinds of 
law-abiding Americans. The three prongs 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. The exception basically destroys the meaning of the carefully 
considered three-prong test we all supported in the Senate.
  I will 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. But the conference report says that the Government only is 
required to satisfy a new fourth test, and that test is only relevance 
and which does not require a connection between the records and a 
suspect. So the other three tests no longer provide any protections at 
  This issue was perhaps the most significant reason I and others 
objected to the conference report. So, naturally, the question today 
is, How was this issue addressed by the White House deal to get the 
support of some Senators? The answer is, It wasn't. Not one change was 
made on the standard for obtaining section 215 orders, and that is a 
grave disappointment. The White House refused to make any changes at 
all. Not only would it not accept the Senate version of section 215, 
which no Member of this body objected to back in July, it wouldn't make 
any change in the conference report on this issue at all.
  Another significant problem with the conference report that was 
rejected back in December is that it does not authorize judicial review 
of the gag order that comes with a section 215 order. While some have 
argued that the review by the FISA Court of a Government application 
for a section 215 order is equivalent to judicial review of the 
accompanying gag order, that is simply inaccurate. The statute does not 
give the FISA Court any latitude to make an individualized decision 
about whether to impose a gag order when it issues a section 215 order. 
It is required by statute to include a gag order in every section 215 
order. That means the gag order is automatic and permanent in every 
  This is a serious deficiency and one which 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,

[[Page S1330]]

and perhaps I will have a chance to read them during this debate.
  This question of judicial review of the section 215 gag order is one 
issue that is actually addressed in some way by the White House deal--
addressed but not solved. Far from it. Under the deal, there is 
judicial review of section 215 gag orders, but it can only take place 
after a year has passed, and it can only be successful if the recipient 
of the section 215 order proves that the Government has acted in bad 
faith. As many of us have argued in the context of national security 
letters, that is a virtually impossible standard to meet. What we need 
is meaningful judicial review of these gag orders, not just the 
illusion of it.
  I do acknowledge one change made by the White House deal that I do 
think is an improvement over the conference report. The conference 
report clarifies that the recipients of both section 215 orders and 
national security letters, which I will discuss in detail in a moment, 
can consult an attorney, but it also includes a provision that requires 
the recipients of these letters to notify the FBI if they consult with 
the attorney and to identify the attorney to the FBI. Obviously, this 
could have a significant chilling effect on the right to counsel. The 
deal struck with the White House makes clear that recipients of section 
215 orders in national security letters would not have to tell the FBI 
if they consult with an attorney. That is an improvement over the 
conference report but, unfortunately, it is only one relatively minor 
  Let me now turn 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 section 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 am gratified that we are finally talking about NSLs, in large 
part due to a lengthy Washington Post story published last year on the 
use of these authorities.
  What are NSLs, and why are they such a concern? Let me spend a little 
time on this because it is quite important. National security letters 
are issued by the FBI to businesses to obtain certain types of records. 
So they are similar to section 215 orders, but with one very critical 
difference: the Government does not need to get any court approval 
whatsoever to issue them. It doesn't have to go to the FISA Court and 
make even the most minimal showing. It simply issues the order signed 
by the special agent in charge of a field office or some other FBI 
headquarters official.
  NSLs can only be used to obtain certain categories of business 
records, in fairness, while section 215 orders can be used to obtain 
``any tangible thing.''
  But even the categories reachable by an NSL are quite broad. NSLs can 
be used to obtain three types of business records: subscriber and 
transactional information related to Internet and phone usage; credit 
reports; and financial records, a category that has been expanded to 
include records from all kinds of everyday businesses like jewelers, 
car dealers, travel agents and even casinos.
  Just as with section 215, the PATRIOT Act expanded the NSL 
authorities to allow the Government to use them to obtain records of 
people who are not suspected of being, or even of being connected to, 
terrorists or spies. The Government need only certify that the 
documents are either sought for or relevant to an authorized 
intelligence investigation, a far-reaching standard that could be used 
to obtain all kinds of records about innocent Americans. And just as 
with section 215, the recipient is subject to an automatic, permanent 
gag rule.
  The conference report does little to fix the problems with the 
national security letter authorities. In fact, it could be argued that 
it makes the law worse. Let me explain why.
  First, the conference report does nothing to fix the standard for 
issuing an NSL. It leaves in place the breathtakingly broad relevance 
standard. Now, some have analogized NSLs to grand jury subpoenas, which 
are issued by grand juries in criminal investigations to obtain records 
that are relevant to the crime they are investigating. So, the argument 
goes, what is the big deal if NSLs are also issued under a relevance 
standard for intelligence investigations?
  Two critical differences make that analogy break down very quickly. 
First of all, the key question is: Relevant to what? In criminal cases, 
grand juries are investigating specific crimes, the scope of which is 
explicitly defined in the criminal code. Although the grand jury is 
quite powerful, the scope of its investigation is limited by the 
particular crime it is investigating. In sharp contrast, intelligence 
investigations are, by definition, extremely broad. When you are 
gathering information in an intelligence investigation, anything could 
potentially be relevant. Suppose the Government believes a suspected 
terrorist visited Los Angeles in the last year or so. It might then 
want to obtain and keep the records of everyone who has stayed in every 
hotel in L.A., or booked a trip to L.A. through a travel agent, over 
the past couple years, and it could argue strongly that that 
information is relevant to a terrorism investigation because it would 
be useful to run all those names through the terrorist watch list.
  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 
  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. Again, this is a standard of review 
that is virtually impossible to meet. So what we have is the illusion 
of judicial review. When you look behind the words in the statute, you 
realize it's just a mirage.
  Does the White House deal address these problems? It does not. In 
fact, as I have already discussed, it expands that same very troubling 
standard of review to judicial review section 215 gag orders.

  The modifications to the conference report agreed to by the White 
House do contain one other purported change to one of the NSL statutes. 
This modification states that the FBI cannot issue an NSL for 
transactional and subscriber information about telephone and Internet 
usage to a library unless

[[Page S1331]]

the library is offering ``electronic communication services'' as 
defined in the statute. But that just restates the existing 
requirements of the NSL statute, which currently applies only to 
entities--libraries or otherwise--that provide ``electronic 
communication services.'' So that provision has no real legal effect 
whatsoever. Perhaps that explains why the American Library Association 
issued a statement calling this provision a ``figleaf'' and expressing 
disappointment that so many Senators have agreed to this deal.
  I also want to take a moment to address, again, an argument that has 
been made about the NSL provisions of the conference report. It has 
been argued that many of the complaints I have about the NSL provisions 
of the conference report apply equally to the NSL provisions of the 
Senate bill and therefore, because I supported the Senate bill, by some 
convoluted theory my complaints are therefore invalid and I should 
support the conference report.
  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.
  The argument has been made that after supporting a compromise package 
for its good parts, I guess the idea is I am supposed to accept a 
conference report that has only the bad parts of the package even 
though the good parts have been stripped out. That is just nonsense, 
and every Member of this chamber who has ever agreed to a compromise--
and I must assume that includes every single one of us--knows it.
  The other point I want to emphasize here is that the Senate bill was 
passed before the Post reported about the use of NSLs and the 
difficulties that the gag rule poses for businesses that feel they are 
being unfairly burdened by them. At the very least, I would think that 
a sunset of the NSL authorities would be justified to ensure that 
Congress has the opportunity to take a close look at such a broad 
power. But the conferees and the White House refused to make that 
change. Nor would they budge at all on the absurdly difficult standard 
of review, the so-called conclusive presumption; in fact, the White 
House insisted on repeating it in the context of judicial review of 
section 215 gag orders.
  This points out a real problem I have with the White House deal. In 
our letter in December, my colleagues and I, Democratic and Republican, 
complained about the unfair standard for judicial review of the gag 
order in connection to NSLs. So how can the supporters of this deal 
argue that applying that same standard to challenges to the gag rule 
for section 215 orders is an improvement? A standard that was 
unacceptable in December has somehow miraculously been transformed into 
a meaningful concession. That is just spin. It doesn't pass the laugh 
  I suspect 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 Governmental 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.
  I next want to address ``sneak and peek'' searches. This is another 
area where the conference report departs from the Senate's compromise 
language, another area where the White House deal makes no changes 
whatsoever, and another reason that I must oppose the conference 
  When we debated the PATRIOT Act in December, the senior Senator from 
Pennsylvania made what seems on the surface to be an appealing 
argument. He said that the Senate bill requires notice of a sneak and 
peek search within 7 days of the search, and the House said 180 days. 
The conference compromised on 30 days. ``That's a good result,'' he 
says. ``They came down 150 days, we went up only 23. What's wrong with 
  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? For 
one thing, that description becomes a limit on what can be searched or 
what can be seized. If the magistrate approves a warrant to search 
someone's home and the police show up at the person's business, that 
search is not valid. If the warrant authorizes a search at a particular 
address, and the police take it next door, they have no right to enter 
that house. But of course, there is no opportunity to point out that 
the warrant is inadequate unless that warrant is handed to someone at 
the premises. If there is no one present to receive the warrant, and 
the search must be carried out immediately, most warrants require that 
they be left behind at the premises that were searched. Notice of the 
search is part of the standard Fourth Amendment protection. It's what 
gives meaning, or maybe we should say ``teeth,'' to the Constitution's 
requirement of a warrant and a particular description of the place to 
be searched and the persons or items to be seized.

  Over the years, the courts have had to deal with Government claims 
that the circumstances of a particular investigation require a search 
without notifying the target prior to carrying out the search. In some 
cases, giving notice would compromise the success of the search by 
leading to the flight of the suspect or the destruction of evidence. 
The two leading cases on so-called surreptitious entry, or what have 
come to be known as ``sneak and peek'' searches, came to very similar 
conclusions. Notice of criminal search warrants could be delayed but 
not omitted entirely. Both the Second Circuit in U.S. v. Villegas and 
the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant 
must provide that notice of the search will be given within 7 days, 
unless extended by the court. Listen to what the Freitas court said 
about such searches:

       We take this position because surreptitious searches and 
     seizures of intangibles strike at the very heart of the 
     interests protected by the Fourth Amendment. The mere thought 
     of strangers walking through and visually examining the 
     center of our privacy interest, our home, arouses our passion 
     for freedom as does nothing else. That passion, the true 
     source of the Fourth Amendment, demands that surreptitious 
     entries be closely circumscribed.

  So when defenders of the PATRIOT Act say that sneak and peek searches 
were commonly approved by courts prior to the PATRIOT Act, they are 
partially correct. Some courts permitted secret searches in very 
limited circumstances, but they also recognized the need for prompt 
notice after the search unless a reason to continue to delay notice was 
demonstrated. And they specifically said that notice had to occur 
within 7 en 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 

[[Page S1332]]

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.
  That is why it sounds to many like a catch-all provision.
  Critics of the sneak and peek provision worked to fix both of the 
problems when they introduced the SAFE Act. First, in that bill, we 
tightened the standard for justifying a sneak and peek search to a 
limited set of circumstances--when advance notice would endanger life 
or property, or result in flight from prosecution, the intimidation of 
witnesses, or the destruction of evidence. Second, we required notice 
within 7 days, with an unlimited number of 21-day extensions if 
approved by the court.
  The Senate bill, as we all know, 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 7-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.
  That is 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.
  Here is the crucial question that they refuse to answer. What 
possible rationale is there for not requiring the Government to go back 
to a court within 7 days and demonstrate a need for continued secrecy? 
Why insist that the Government get 30 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 7 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 1 week and a month with regard to the 
time you are notified that some one came into your house and you had 
absolutely no idea about it.
  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 7 days.

  That is why I'm not persuaded by the numbers game. The Senate bill 
was already a compromise on this very controversial provision. And 
there is no good reason not to adopt the Senate's provision. I have 
pointed this out repeatedly, and no one has ever come forward and 
explained why the Government can't come back to the court within 7 days 
of executing the search. Instead, they let the House get away with a 
negotiating tactic--by starting with 180 days, they can argue that 30 
days is a big concession. But it certainly wasn't.
  Let me put it to you this way: If the House had passed a provision 
that allowed for notice to be delayed for 1,000 days, would anyone be 
boasting about a compromise that requires notice within 100 days, more 
than 3 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, 6 months, is 
reasonable. It was a bargaining ploy. The Senate version was what the 
courts had required prior to the PATRIOT Act. And it was itself a 
compromise because it leaves in place the catch-all provision for 
justifying the warrant in the first place. That is why I believe the 
conference report on the sneak and peek provision is inadequate and 
must be opposed. And the fact that this so-called deal with the White 
House does not address this issue is yet another reason why I see no 
reason why I, or anyone, should change their position on this.
  Let me make one final point about sneak and peek warrants. Don't be 
fooled for a minute into believing that this power is needed to 
investigate terrorism or espionage. It's not. Section 213 is a criminal 
provision that applies in whatever kinds of criminal investigations the 
Government has undertaken. In fact, most sneak and peek warrants are 
issued for drug investigations. So why do I say that they aren't needed 
in terrorism investigations? Because FISA also can apply to those 
investigations. And FISA search warrants are always executed in secret, 
and never require notice. If you really don't want to give notice of a 
search in a terrorism investigation, you can get a FISA warrant. So any 
argument that limiting the sneak and peek power as we have proposed 
will interfere with sensitive terrorism investigations is a red 
  I have spoken at some length about the provisions of this conference 
report that trouble me, and the ways in which the deal struck with the 
White House does not address those problems with the conference report. 
But to be fair, I should mention one aspect of the conference report 
that was better than a draft that circulated prior to the final signing 
of that report. The conference report includes 4-year sunsets on three 
of the most controversial provisions: roving wiretaps, the so-called 
``library'' provision, and the ``lone wolf' provision of the Foreign 
Intelligence Surveillance Act. Previously, the sunsets on these 
provisions were at 7 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 am also glad to see that it requires the 
Department of Justice to report to us on its data mining activities.
  But adding sunsets and new reporting and oversight requirements only 
gets you so far. The conference report, as it would be modified by S. 
2271, remains deeply flawed. I appreciate sunsets and reporting, and I 
know that the senior Senator from Pennsylvania worked hard to ensure 
they were included, but these improvements are not enough. Sunsetting 
bad law in another 4 years is not good enough. Simply requiring 
reporting on the Government's use of these overly expansive tools does 
not ensure that they will not 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.
  Trust of Government cannot be cannot be demanded or asserted or 
assumed; it must be earned. And this administration has not earned our 
trust. It has fought reasonable safeguards for constitutional freedoms 
every step of the way. It has resisted congressional oversight and 
often misled the public about its use of the PATRIOT Act. We know now 
that it has even authorized illegal wiretaps and is making misleading 
legal arguments to try to justify them. We sunsetted 16 provisions of 
the original PATRIOT Act precisely so we could revisit them and make 
necessary changes--to make improvements based on the experience of 4

[[Page S1333]]

years with the Act, and with the careful deliberation and debate that, 
quite frankly, was missing 4 years ago. This process of reauthorization 
has certainly generated debate, but if we pass the conference report, 
even with the few White House modifications, in some ways we will have 
wasted a lot of time and missed our opportunity to finally get it 
  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 4 years before really addressing their concerns. It appears 
that is now an inevitable outcome. But I am prepared to keep fighting 
for as long as it takes to get this right. For now, I urge my 
colleagues to oppose the motion to proceed to this legislation to 
implement the White House deal. We can do better than these minor 
cosmetic changes.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALLEN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Allen pertaining to the introduction of S.J. Res. 
31 are located in today's Record under ``Submission of Concurrent and 
Senate Resolutions.'')
  Mr. ALLEN. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Thune). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allen). Without objection, it is so 
  Mr. DORGAN. Mr. President, I understand the current business. I ask 
unanimous consent that my presentation appear in the Record as in 
Morning Business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Dorgan are printed in today's Record under 
``Morning Business.'')
  Mr. DORGAN. Mr. President, I yield the floor and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER (Mr. Sununu). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, we are again enduring another filibuster 
of the PATRIOT Act. It is frustrating to me in the sense that I 
believe, properly understood, the PATRIOT Act provides tremendous 
protections to the people of the United States which don't now exist, 
and that those protections are crafted in a way which is sensitive to 
and consistent with the great civil liberties which we all cherish.
  Two months ago, in December, we had a long debate, and since then, we 
have had to extend the PATRIOT Act for some time without reauthorizing 
it. Leaders have met and worked and dealt with some concerns. I know 
four Republican Senators who had concerns, and their concerns have been 
met. I think others also have likewise felt their concerns have been 
met. They are not large changes, but it made the Senators happy and 
they feel comfortable with voting for the bill today. That is good 
news. It is time to pass it.
  I believe the American people expect that we will be able to have an 
up-or-down vote on this legislation. That has been blocked. There has 
been a majority in favor of the legislation for some time.
  To get to cloture, we have to use 30 hours of debate, which will 
probably last throughout the day and into tomorrow. We will get there 
this time, I am confident. When we do, we will have a fairly strong 
vote, I believe, in favor of the legislation. We certainly should.
  I urge my colleagues to work with us as best they can to move this 
forward in an expeditious way that allows for the up-or-down vote that 
is necessary.
  I have talked about it a number of times, but I thought today I would 
focus on the question of why the PATRIOT Act matters, or are these just 
academic issues? Are they issues of an FBI agent wanting to violate our 
civil rights and spy on us? Some group in Government out here with 
black helicopters trying to find out what people are doing and then 
take away our liberties?
  That is a great exaggeration. This is not what is at stake here. This 
bill is consistent with our great American liberties. It has not been 
held unconstitutional. Overwhelmingly, the powers given in this act are 
powers that law enforcement officers have had for years. They have been 
able to utilize them to catch burglars, murderers, drug dealers, and 
the like.
  The local district attorney can subpoena my library records, medical 
records, and bank records. The Drug Enforcement Administration Act by 
administrative subpoena--not even a grand jury subpoena--can subpoena 
my telephone toll records. That has always been the law. That is the 
law today. We have provisions that allow our investigators to do that 
for terrorists. One would think somehow we are ripping the Constitution 
into shreds, that this is somehow a threat to our fundamental 
liberties. It is not so.
  Let me point out I had the privilege, for over 15 years, to be a 
Federal prosecutor and work on a daily basis with FBI agents, DEA 
agents, and customs agents. These are men and women who love their 
country. They believe in our law. They follow the law. In my remarks, I 
will demonstrate these agents, unlike what is seen on television, 
follow what we tell them to do. If they do not follow what we tell them 
to do, they can be prosecuted, removed from the FBI, the DEA or the 
Federal agency for which they work. In fact, they know that and they 
remain disciplined and men and women of integrity who follow the law. 
Therefore, do not think, when we pass restrictions on how they do their 
work, that it is not going to be followed; that if it is a really big 
case, such as on ``Kojak,'' that they will go in and kick in the door 
without a warrant. That does not happen.
  In 2001, we know at least 19 foreign terrorists were able to enter 
this country and plan and execute the most devastating terrorist attack 
this Nation has ever seen. The reasons the United States and terror 
investigators, the people we had out there at the time--FBI, CIA, and 
others--failed to uncover and stop the September 11 conspiracy have now 
been explored carefully by a joint inquiry of the House and Senate 
Intelligence Committees and other congressional committees and 
commissions, as well as the 9/11 Commission. These very commissions and 
inquiries have reviewed, in painstaking detail, the various pre-
September 11 investigations that were out there--investigations, 
inquiries, preliminary inquiries--gathering information that raised 
people's suspicions about terrorism.
  These investigations could have but unfortunately did not stop the 
September 11 plot. We have seen how close the investigators came to 
discovering or disrupting the conspiracy, only to repeatedly reach dead 
ends or obstructions to their investigations.
  Those are the facts they found. Some of the most important pre-
September 11 investigations, we know exactly what stood in the way of a 
successful investigation. It was the laws Congress wrote, seemingly 
minor, but, nevertheless, with substantive gaps in our antiterror laws, 
preventing the FBI from fully exporting the best leads it had on the 
al-Qaida conspiracy. One pre-September 11 investigation, in particular, 
came tantalizingly close to substantially disrupting or even stopping 
the terrorist plot. But this investigation was blocked by a flaw in our 
antiterror laws that has since been corrected by this PATRIOT Act being 
filibustered today.
  This investigation involved Khalid Al Midhar. Midhar was one of the 
eventual suicide attackers on the American Airlines flight 77 which was 
flown into the Pentagon across the river from here, killing 58 
passengers on the plane, the crew, and 125 people at the Pentagon. 
Patriots all.
  An account of a pre-September 11 investigation of Midhar is provided 
in the 9/11 Commission Staff Statement No. 10. The 9/11 Commission 
looked at what information we did have prior to these events, and this 
is what the staff statement notes:

[[Page S1334]]

       During the summer of 2001, a CIA agent asked an FBI 
     official [a CIA agent responsible for foreign intelligence 
     talked with an FBI official responsible for the security and 
     law enforcement international] to review all of the materials 
     from a Al Qaeda meeting in Kuala Lumpur, Malaysia one more 
     time. The FBI official began her work on July 24th prior to 
     September 11, 2001. That day she found the cable reporting 
     that Khalid Al Mihdhar had a visa to the United States. A 
     week later she found the cable reporting that Mihdhar's visa 
     application--what was later discovered to be his first 
     application--listed New York as his destination . . . The FBI 
     official grasped the significance of this information.
       The FBI official and an FBI analyst working on the case 
     promptly met with INS representatives at the FBI 
     Headquarters. On August 22nd, INS told them that Mihdhar had 
     entered the United States on January 15t, 2000, and again on 
     July 4, 2001 . . . The FBI agents decided that if Mihdhar was 
     in the United States, he should be found.

  At this point, the investigation of Khalid Al Midhar came up against 
the infamous legal ``wall'' that separated criminal and intelligence 
investigations at the time.
  The Joint Inquiry Report of the House and Senate Intelligence 
Committees describes what happens next:

       Even in late August 2001 when CIA told FBI, State, INS, and 
     Customs that Khalid al-Mihdhar, Nawaf al-Yazmi, and two other 
     ``Bin Laden-related individuals'' were in the United States, 
     FBI Headquarters refused to accede to the New York field 
     office recommendation that a criminal investigation be 
     opened, which might allow greater resources to be 
     dedicated to the search for the future hijackers . . .

  The FBI has attorneys. They read our statutes, they read the laws we 
pass, they tell the agents what they can and cannot do because they are 
committed to complying with the laws we place upon them.

       The FBI attorneys took the position that criminal 
     investigators CANNOT be involved and that criminal 
     information discovered in the intelligence case would be 
     ``passed over the wall'' according to procedures. An agent in 
     the FBI's New York field office responded by an e-mail, 

  And I will quote the agent in a second but the scene is this: The FBI 
field office in New York concluded, after obtaining information from 
CIA that this individual, one of the hijackers, was a dangerous person 
and should be found. And the FBI field office--it is a big deal to be a 
special agent in charge of the New York field office, the biggest one 
in the country--recommended to FBI headquarters that we act on it. The 
FBI lawyers read the laws we passed and said ``you cannot.'' This is 
what the agent in New York responded when he heard this, sent it by e-
mail. See if this doesn't chill your spine a bit.
  He said:

       Whatever has happened to this, someday someone will die 
     and, wall or not, the public will not understand why we were 
     not more effective in throwing every resource we had at 
     certain problems.

  That was his reaction. It was a natural reaction.
  How did we get this wall? It occurred in a spate of reform 
legislation after abuses of Watergate and the Frank Church committee 
hearings. They decided that in foreign intelligence--that is one thing, 
domestic is another--foreign intelligence does not always follow every 
rule. We ought to have a clear line between the FBI, which is over here 
in America, and we ought not give them information that the CIA had 
because they thought somehow this was going to deny us our civil 
liberties, which was not very clear thinking, in my view.
  But these were good people. They were driven maybe by the politics of 
the time or what they thought was good at the time. They created this 
wall we have demolished with the PATRIOT Act--and good riddance it is. 
There is no sense in this.
  The 9/11 Commission has reached the following conclusion about the 
effect the legal wall between criminal and intelligence investigations 
had on the pre-September 11 investigation of Khalid Al Midhar. This is 
what the 9/11 Commission concludes:

       Many witnesses have suggested that even if Mihdhar had been 
     found, there was nothing the agents could have done except 
     follow him onto the airplane. We believe this is incorrect. 
     Both Hazmi and Mihdhar could have been held for immigration 
     violations or as material witnesses in the Cole bombing case.

  This was our warship, the USS Cole, that was bombed by al-Qaida, 
killing a number of American sailors in Yemen; an attack on a warship 
of the United States by al-Qaida. What does it take to get our 
  This report continues:

       Investigation or interrogation of any of these individuals, 
     and their travel and financial activities, also may have 
     yielded evidence of connections to other participants in the 
     9/11 plot. In any case, the opportunity did not arise.

  There was a realistic chance, had these rules not existed, rules that 
this PATRIOT Act eliminates, we would have been able to move forward 
with an investigation that had some prospect of actually preventing 
September 11 from occurring.
  Some say, Jeff, you cannot say that for certain; and I am not saying 
it for certain, but I have been involved in investigations. You never 
know. You get a bit of information, you follow up on a lead or two, you 
get a search warrant, you surveil an activity, and all of a sudden you 
find that bit of evidence that takes you even further into an 
organization committed to a criminal activity or a terrorist plot you 
never knew existed. This is reality of law enforcement work today. We 
ask them every day to do this. And those investigating terrorist cases 
are giving their very heart and soul to it. They are trying every way 
possible, consistent with the law, not outside the law, to gather all 
the information they can to be successful.

  So we know the PATRIOT Act was enacted too late to have aided in the 
pre-September 11 investigations, unfortunately. But it did raise our 
consciousness of the lack of wisdom on the reform legislation that was 
passed the year before--all with good intentions.
  Let me mention another matter of a similar nature.
  Another key pre-September 11 investigation was also blocked by a 
seemingly minor gap in the law. The case involves Minneapolis FBI 
agents' summer 2001 investigation of al-Qaida member Zacarias 
  Hearings before the 9/11 Commission raised agonizing questions about 
the FBI's pursuit of Moussaoui. Commissioner Richard Ben-Veniste noted 
the possibility that the Moussaoui investigation could have allowed the 
United States to ``possibly disrupt the [9/11] plot.'' Commissioner Bob 
Kerrey, a former Member of this Senate, even suggested that with better 
use of the information gleaned from Moussaoui, the ``conspiracy would 
have been rolled up.''
  Moussaoui was arrested by Minneapolis FBI agents several weeks before 
the 9/11 attacks. Do you remember that? He was arrested early that 
summer. Instructors at a Minnesota flight school became suspicious when 
Moussaoui, with little apparent knowledge of flying, asked to be taught 
how to pilot a 747. The instructors were concerned about it. They were 
on alert. They did what good citizens would do. Remember, this is 
before 9/11. But they were concerned about this oddity. They called the 
FBI in Minneapolis, which immediately suspected that Moussaoui might be 
a terrorist.
  FBI agents opened an investigation of Moussaoui and sought a FISA 
that is the Foreign Intelligence Surveillance Court--national security 
warrant to search his belongings. But for 3 long weeks, the FBI agents 
were denied that FISA warrant. During that 3 weeks--you know the 
truth--the September 11 attack occurred.
  After the attacks--and largely because of them the agents were then 
able to obtain an ``ordinary'' criminal warrant. So after the attacks, 
the agents were issued an ``ordinary'' criminal warrant to conduct the 
search. And when they conducted the search, his belongings then linked 
Moussaoui to two of the actual 9/11 hijackers and to a high-level 
organizer of the attacks who was later arrested in Pakistan.
  The 9/11 Commissioners were right to ask whether more could have been 
done to pursue the case. This case was one of our best chances of 
stopping or disrupting the 9/11 attacks. Could more have been done? The 
best answer is probably no--based on the law that existed at that time.
  The FBI agents were blocked from searching Moussaoui because of an 
outdated requirement of the 1978 FISA statute. Unfortunately, one of 
that statute's requirements was that the target of an investigation--if 
it were to be subject to a search under a FISA warrant, a foreign 
intelligence warrant--the agent had to have proof that he was not a 
lone-wolf terrorist, but he

[[Page S1335]]

must have been an agent of a foreign power or a known terrorist group. 
The law did not allow searches of apparent lone wolves, like Zacarias 
Moussaoui was thought to be at the time. They did not have the evidence 
to show otherwise.
  So according to the FBI Director, the man in charge of the FBI, 
Robert Mueller--a former prosecutor of many years and a skilled 
lawyer--the gap in FISA probably would have prevented the FBI from 
using FISA against any of the September 11 hijackers. As the Director 
noted in his testimony before the Judiciary Committee:

       Prior to September 11, [of] the 19 or 20 hijackers . . . we 
     had very little information as to any one of the individuals 
     being associated with . . . a particular terrorist group.

  So in other words, their lawyers in the FBI were saying: Well, you 
can't use the FISA. I know you want to. I know you have suspicions. And 
I know he looks like a terrorist. And we would like to search his 
belongings and see if he has any connection with any terrorist 
organization and maybe find out if they have any bombs or plans there. 
But you can't do it because we lack one little bit of proof. We can't 
prove he's connected to a terrorist group or a foreign nation. Sorry. 
Can't do it.
  So the ``lone-wolf'' gap was fixed by the Intell reauthorization, and 
adopted as part of the PATRIOT Act. We need to reauthorize it and 
continue it into law.
  What the various reports and commissions investigating the 9/11 
attacks have shown us thus far is that where our antiterror laws are 
concerned, even seemingly little things, minor things--it might seem 
like they were OK at the time--can make a big difference, a life and 
death difference.
  Before September 11, few would have thought that the lack of 
authority in FISA for the FBI to monitor and search lone-wolf 
terrorists might be decisive as to our ability to stop a major 
terrorist attack on U.S. soil. Indeed, that is true. We did not think 
about it. We did not think clearly about it.
  And before September 11, though there was some attention to the 
problems posed by the legal wall between the intelligence-gathering 
agencies and the criminal investigative agencies, there was little 
sense of urgency to fix those matters. We accepted it. The FBI accepted 
it. It was the way you had to do business. You could not violate the 
law. I am sorry, you cannot investigate. You cannot participate with 
the CIA. Even though you may think he is a terrorist instigator, you 
cannot participate because there is a wall that the Congress created.
  So at the time, these all seemed like legal technicalities--not real 
problems, the kind of problems that could lead to the deaths of 
almost 3,000 American citizens.

  Today, we face the same challenge--recognizing why it is so important 
to fix small gaps in the law that can lead to large consequences and 
real-life disasters. Congress must not take the position that enough 
time has been passed since 9/11. Congress must not allow the 
information wall to be reconstructed by blocking the passage of the 
PATRIOT Act, or allow the tools we have given to our terrorism 
investigators by the PATRIOT Act to be taken away.
  We must pass the PATRIOT Act reauthorization conference report. It is 
that simple. It permanently plugs most of the holes that we know 
existed in our terrorism laws. The report retains a few sunsets. I do 
not think they are necessary. I think they were good, sound changes in 
the law. But people are nervous that they might be abused, so they will 
automatically sunset if we do not extend them. OK, we will do that. If 
that will get some people more comfortable so they will pass this bill, 
we will do that.
  And the report has a long list of additional civil liberties 
  It is a compromise product that came out of our Judiciary Committee, 
I believe with a unanimous vote, and with a unanimous vote on the floor 
of the Senate, and went to conference. A few changes were made in 
conference. But where there were conflicts, overwhelmingly, the 
conflicts were decided in favor of the Senate product. And it was that 
product that finally hit the floor of the Senate in December. And we 
have had this filibuster going ever since. Hopefully, now we are in a 
position to end it.
  I urge my colleagues to examine the nature of the PATRIOT Act as it 
is now configured. Read it carefully. Ask any questions you have. Make 
sure you understand what powers police have today in your hometowns all 
over America. And do not get confused that some of the things provided 
for might sound if--you listen to critics--as if they are new and far-
reaching and utterly dangerous. They are part of everyday law 
enforcement--overwhelmingly, they are--and I believe are consistent 
with the highest commitment of American citizens to civil liberties.
  I would also mention this. There are almost 3,000 people who are no 
longer with us today. They have zero civil liberties as a result of the 
most vicious and hateful attack on 9/11. That is not an academic 
matter. That is a fact. As that FBI agent said: Someday the American 
people are not going to understand how we were not able to intercept 
and investigate these groups.
  Mr. President, I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Coburn). The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I appreciate the Senator from Alabama 
joining the debate about the PATRIOT Act. I am going to respond very 
briefly to his remarks because I know there are other Senators on the 
floor who wish to speak about other issues, and I will defer to them in 
a moment.
  But the Senator complained that the Senate is enduring another 
filibuster on this issue. I suppose that is one way to characterize it. 
What I would characterize it as is those of us who have concerns about 
this bill are enduring again speech after speech that has absolutely 
nothing to do with the issues at hand. That is irrelevant to the 
concerns we have raised about the PATRIOT Act.
  Throughout his speech, the Senator from Alabama talked about issues 
that are not about the concerns we have raised. In fact, again, we are 
subjected to this idea that somehow those of us who raise these 
concerns are not concerned about what happened to this Nation on 9/11, 
that we do not feel exactly as much as the Senator from Alabama the 
pain and the tragedy of the loss of those 3,000 lives.
  Not a single concern I have raised about this bill would have 
anything to do with this Government's ability to crack down on people 
who are trying to attack this country. In fact, that is the whole 
point. All of the changes we seek are to try to make sure we 
distinguish those who are completely innocent and unrelated to the 
terrorists from those who, in fact, are involved in espionage or 
  The Senator talks about academic issues. But these are not academic 
issues. The fact is, when he brings up anything specific, he is 
changing the subject. He is bringing up noncontroversial issues. He 
talks about this wall. I talked about this in my speech before: the 
wall between the CIA and FBI. No Member of this body disputes that wall 
needed to be taken down. The wall has been taken down. I do not want it 
to be put back up. That is not in controversy.
  And virtually the entire speech by the Senator from Alabama was about 
specific issues--the Midhar case and the Moussaoui case. All of that 
part of his speech was about something that is not in controversy. If 
he wants to offer that as a bill right now to simply continue that 
provision, he can put me down as a cosponsor. So it is completely 
irrelevant to what we are discussing and what my concerns are at this 
  The Senator says that somehow people are running around saying that 
the FBI is kicking down people's doors without a warrant. Nobody ever 
said that. I understand how the sneak-and-peek provisions work. We have 
been on this issue for a while. We know that in sneak and peek there 
has to be a warrant.
  The question there is not whether there are warrantless searches of 
people's homes. The question is, when somebody is allowed, through a 
judicial order and a warrant, to come into somebody's house when they 
do not get notice of it, how long somebody should have to endure the 
possibility that their home has been searched and they

[[Page S1336]]

do not get notice after the fact that somebody came into their house 
when they were not there. So again, the argument is entirely unrelated 
to the concern.
  The concerns we have raised are important, but they are limited. I am 
going to insist in this debate that we debate the concerns that we have 
put forward.
  Finally, Mr. President, I am amused by the Senator talking about how 
we passed a bill in the Judiciary Committee by a unanimous vote. You 
bet we did. The Senator from Alabama voted for it and I voted for it. 
The whole Senate did not oppose the bill. Now every single thing I have 
advocated to change in the PATRIOT Act, in terms of the product of this 
body, is what I am advocating today. The Senator is acting as if those 
are dangerous provisions. Well, he voted for them. He voted for the 
stronger standard on 215. He voted for 7 days on the sneak-and-peek 
provisions. So how can they be dangerous if the Senator from Alabama 
actually voted for those provisions with me in the Judiciary Committee?
  These are not dangerous changes. These are not irresponsible changes. 
These are not changes that have anything to do with legitimate efforts 
to try to stop the terrorists.
  I so thank the Senator. I always enjoy debating him. He is the one 
Senator who has come down here and engaged on this today. I appreciate 
that. But I wish the debate could be about the questions that have 
arisen having to do with notice issues in sneak and peek, whether there 
is going to be a stronger provision on national security letters, 
whether there is going to be a provision on library business records to 
make sure it is tied to terrorists. The only reason I am doing this has 
to do with those kinds of provisions, not the issues the Senator from 
Alabama raised on which I happen to, in large part, agree.
  Mr. SESSIONS. If the Senator will yield, I have talked about the 
details of this bill and individual complaints the Senator has about 
this or that provision in some detail. I will do so again. At this 
point, what we are facing is a filibuster of the motion to proceed that 
impacts the entire legislation.
  I would ask the Senator if the Senator remembers that when the bill 
came out of the Senate, it said there would be a 7-day notice if there 
were a sneak-and-peek search warrant. The House bill had 180 days 
before notice would be given. The conferees moved far to the side of 
the Senate and made it a 30-day notice. Is that the basis of the 
Senator's desire to filibuster this entire bill, the difference between 
7 and 30 days, recognizing in this body we seldom get anything exactly 
as we want it?
  Mr. FEINGOLD. Mr. President, if the Senator is asking me a question, 
I am happy to respond.
  The PRESIDING OFFICER. The Senator from Wisconsin controls the time.
  Mr. FEINGOLD. I spoke at some length this morning about this issue 
which I call the numbers game on the sneak and peek. Of course, the 
sneak-and-peek provision is not my only concern. There are four or five 
areas. But I am very concerned about the length of time that somebody 
does not get notice that the FBI has come into their home without their 
being aware of it and the idea that somehow, after very careful court 
decisions said there will be exceptions to the requirements of the 
fourth amendment for perhaps 7 days--that was the standard in the court 
decisions upon which these unusual sneak-and-peek provisions were 
based--then to somehow have it become reasonable to have a whole month, 
a 30-day period, strikes me as extreme.
  The 7-day standard was not picked out of the air. The 7-day standard 
was based on those court decisions which made the unusual law, in terms 
of our history as a country in the prohibition against unreasonable 
searches and seizures--the 7 days was based on those court decisions. 
So, yes, 30 days, four times more, is unreasonable.
  After the Government has come into somebody's home and they have had 
7 days, why is it that they should not have to come back and get 
permission to do that for a longer period of time? What is the need for 
the Government to have 30 days to not tell somebody to do that, when 
you remember that the Senate version you and I both voted for had the 
7-day period?
  Mr. SESSIONS. Well, we all don't get exactly what we want, I say to 
the Senator, No. 1.
  No. 2, under current law, the so-called sneak-and-peek search by 
which you can, if you are investigating a major criminal enterprise or 
a terrorist group, actually conduct a search without actually telling 
the person the day you conducted it, the courts allow you as much time 
as they choose to allow you, for the most part. Some courts may have 
said 7 days. I am not aware at all that is the law in this country. It 
is what the judge says. This sets the standard. It says 30 days, and 
then they have to be repeated after that.
  We have a bill on the floor that is a matter of life and death. I 
would ask my colleague to be somewhat more amenable to the fact that he 
won a pretty good victory in conference but just didn't get everything 
he wanted in conference by going from the House version of 180 down to 
  Mr. FEINGOLD. Mr. President, I could say: Gee, it went from 180 to 
30. I could tell my constituents in Spooner, WI: Look, the Government 
is going to come into your home under a special circumstance when you 
are not around, and it might not have even been the right house, and we 
are making this exception for 7 days because of emergencies in 
important situations. You and I both agree in certain circumstances 
that might occur. But the idea that for a whole month, that for 30 days 
the Government of the United States of America can come into your home 
without telling you they have been there, even if they have made a 
mistake, and they have no responsibility to tell a completely innocent 
person they made a mistake, to me is serious business.
  If the Senator could make a credible argument as to why it is 
important for the Government to have a whole month after this 7-day 
period or 3 more weeks after the 7-day period, it would be one thing. 
But nobody has even made the argument that it is important for the 
Government to have 30 days to conduct this search. It is essentially an 
unreasonable period of time. I think it is important. The erring here 
should be on the side of people's liberty. It should be on the side of 
people protecting their homes from unreasonable searches and seizures. 
It should not be: What is the problem here? The Senator should be happy 
he got something better than the House version. I don't accept that, as 
somebody who believes the fourth amendment still has meaning.

  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. FEINGOLD. I yield to the Senator from West Virginia.
  Mr. BYRD. Would the Senator yield and let me make a few remarks?
  Mr. FEINGOLD. Absolutely.
  The PRESIDING OFFICER. Does the Senator yield his time?
  Mr. FEINGOLD. I yield my time.
  Mr. LEAHY. Mr. President, I don't want to interfere with the Senator. 
I see quite a few pages of remarks there. I don't want to interfere 
with that, but I understood the Senator from Virginia and the Senator 
from Arkansas were going to introduce legislation, to be followed by 
remarks of mine on the bill before us in my capacity as the ranking 
member of the Senate Judiciary Committee, which has jurisdiction over 
this piece of legislation. My remarks will only be 5 or 6 minutes, but 
I wish to make them now or as soon as the Senators from Virginia and 
Arkansas have finished.
  Mr. WARNER. Mr. President, there had been an informal agreement among 
colleagues, subject to the Senator who is principally on the floor at 
this point in time--and I will let him speak for himself--that we were 
going to introduce a bill. It would take 4 or 5 minutes for my remarks 
and 4 or 5 for the Senator from Arkansas. We were intending to do that 
at the conclusion of the colloquy between Senators Feingold and 
  Am I correct on that, the Senator had indicated that we could 
  Mr. FEINGOLD. Certainly, I had no objection to that.
  The PRESIDING OFFICER. There is no recognized time agreement by the 
Chair at this time.
  Mr. WARNER. Then I make a unanimous consent request that the Senator 
from Arkansas and I have 15 minutes equally divided, to be followed by 
Senator Leahy for such time as he may

[[Page S1337]]

need and then the distinguished Senator from West Virginia.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
  Mr. BYRD. Mr. President, reserving the right to object--I do not 
intend to object--I need to complete my remarks by 4:35. I have about 
20 minutes here.
  Mr. WARNER. Then I revise the request. The Senator from Arkansas and 
I can drop to, say, 10 minutes, and 5 minutes for the Senator from 
Vermont. Well, let's drop it down to 8 minutes----
  Mr. LEAHY. I would need about 6 minutes. And that is cutting down a 
half-hour speech to accommodate the Senator from West Virginia, but I 
have been here for a couple hours ready to give this speech.
  Mr. BYRD. Mr. President, I have waited many hours here many times. I 
never make a fuss about it. I will just leave the floor and----
  Mr. WARNER. Mr. President, before the Senator leaves, what amount of 
time would the senior Senator from West Virginia like?
  Mr. BYRD. I have 61 pages, large type. But that will take about 20 
minutes--15, I think.
  Mr. LEAHY. I have 5 or 6 pages of large type.
  Mr. BYRD. My problem is, I need to get through by 4:30 or 4:35.
  Mr. WARNER. Mr. President, I would suggest to my distinguished 
colleague from Arkansas, recognizing that Senator Byrd has an 
extenuating circumstance he has to take care of, I would be perfectly 
willing to step aside and regain into the queue following the Senator.
  Mr. BYRD. The Senator is more than generous and more than kind.
  Mr. LEAHY. The understanding is that I will be done by 4:15 to 
accommodate the Senator from West Virginia.
  Mr. FEINGOLD. Mr. President, reserving the right to object, I ask to 
be recognized at the completion of the Senator's speech.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, last week, the Judiciary Committee held an 
important hearing. That hearing should be the beginning of the process 
of congressional oversight into what has been called ``the President's 
program.'' This is a domestic spying program into emails and telephone 
calls of Americans without a judge's approval, apparently conducted by 
the National Security Agency. Having participated in the hearing and 
reviewed the transcript of the Attorney General's testimony, I 
understand the fear that this administration is engaged in an elaborate 
cover-up of illegality. I urge them to come clean with us and the 
American people.
  Perhaps their recent change of course and briefings with the full 
Intelligence Committees of the Senate and House will be a start. We 
need the whole truth not self-serving rationalizations. Since our 
hearing the Bush administration has had to adjust its course. That is 
good. They have had to acknowledge that they cannot simply ignore 
Congress and keep us in the dark about this illegal spying program. The 
classified briefings of the Intelligence Committees are a first step 
but cannot be used to cover up the facts through secrecy and arbitrary 
limitations. That is unacceptable. This domestic spying program has 
raised serious concern, not only among Democrats and Republicans here 
in Congress, but also among the Federal judges providing oversight over 
terrorist surveillance and even high-ranking Justice Department 
  I commend Chairman Specter for beginning this investigation. He and I 
have a long history of conducting vigorous bipartisan oversight 
investigations. If the Senate is to serve its constitutional role as a 
real check on the Executive, thoroughgoing oversight is essential. 
Today, Chairman Specter has announced a second Judiciary Committee 
hearing will be held on February 28. We expect by then to have received 
answers to the written questions that have already been sent to the 
Attorney General.
  The question facing us is not whether the Government should have all 
the tools it needs to protect the American people. Of course it should. 
The terrorist threat to America's security remains very real, and it is 
vital that we be armed with the tools needed to protect Americans' 
security. That is why I coauthored the PATRIOT Act 5 years ago. That is 
why we have amended the Foreign Intelligence Surveillance Act five 
times since 9/11 to provide more flexibility.
  And that is why within days of the despicable attacks we passed the 
Authorization for the Use of Military Force on September 14, 2001, to 
send the United States Armed Forces into Afghanistan to get those who 
planned and carried out the vicious attacks on September 11.
  We all agree that we should be wiretapping al-Qaida terrorists. 
Congress has given the President authority to wiretap legally, with 
checks to guard against abuses when Americans' conversations and email 
are being monitored. But instead, the President has chosen to proceed 
outside the law, without those safeguards. He has done so in a way that 
is illegal and illogical. It remains confusing that the Attorney 
General testified last week that the Bush administration has limited 
``the President's program'' of illegal wire taps to calls with an 
international component.
  The administration's rationale is not limited to calls and emails 
with an international component or to know al-Qaida operatives.
  It sounded at our hearing as if what the Bush Attorney General and 
former White House counsel was saying is that this particular 
``program'' is limited because they were afraid of public outrage. The 
Attorney General said as much to Senator Kohl and confirmed to Senator 
Biden that the Bush administration does not suggest that the 
President's powers are limited by the Constitution to foreign calls. 
Their descriptions of the President's program seem to have more to do 
with public relations than anything else. It was even branded with a 
new name in the last few days after it has been known for years as 
simply ``the President's program.''
  Senator Feinstein was right to observe after the Attorney General 
dodged and weaved and would not directly answer her questions: ``I can 
only believe--and this is my honest view--that this program is much 
bigger and much broader than you want anyone to know.'' The Attorney 
General's strenuous efforts to limit the hearing to ``those facts the 
President has publicly confirmed'' and ``the program that I am here 
testifying about today'' suggest that all of us must be skeptical about 
the secret games the Attorney General was playing through controlling 
the definition of ``the program'' to include only what he understood to 
exist at the beginning of last week. Senator Feinstein was not fooled. 
None of us should be. Such limiting definitions are what the Bush 
Administration used to redefine ``torture'' in order to say that we do 
not engage in ``torture'' as they redefined it. These are the word 
games of coverup and deception. It is not al-Qaida surprised that our 
Government eavesdrops on its telephone calls and emails. Al-Qaida knows 
that we eavesdrop and wiretap. It is the American people who are 
surprised and deceived by the President's program of secret 
surveillance on them without a judge's approval for the last 5 years--
especially, after the Attorney General, the Justice Department, the 
head of the NSA and the President have all reassured the American 
people over and over that their rights are being respected--when they 
are not.
  I wish the President had effectively utilized the authority Congress 
did grant in the Authorization for the Use of Military Force in 
September 2001 to get Osama bin Laden and those responsible for the 
terrible attacks on September 11. That resolution was what it said it 
was, authorization to send troops to Afghanistan to get those 
responsible for 9/11. President Bush should have gotten Osama bin Laden 
when Congress authorized him to use our military might against al-Qaida 
in 2001 in Afghanistan. Instead of pursuing him to the end, he pulled 
our best forces out of the fight and diverted them to preparing for his 
invasion of Iraq.
  Last week the Attorney General left key questions unanswered and left 
impressions that are chilling. Under his approach, there is no limit to 
the power the President could claim for so long as we face a threat of 

[[Page S1338]]

That is a real threat, which we have long faced and will continue to 
face for years if not decades toe. The Attorney General's testimony 
only hinted at the full dimensions of the Bush administration's 
illegality. He would not reassure us that Americans' domestic calls, 
emails, or first class mail have not been illegally spied upon.
  He sought to choose his words carefully to say that he was only 
willing to speak about the President's ``program'' as it existed that 
day. That means we do not yet know the full dimensions of the program 
as it has evolved over time from 2001 to today. That means we do not 
know what other illegal activities the Bush administration is still 
endeavoring to hide from us.
  Along with other Senators I asked about the lack of any limit to the 
legal rationale the Bush administration has embraced. Their 
rationalization for their actions is rationalization for any action. 
Under their view of the President's power, he can order houses and 
businesses searched without a warrant. Americans can be detained 
indefinitely. Detainees can be tortured. Property could be seized. 
Their rational is a prescription for lawlessness and the opposite of 
the rule of law.
  Regrettably, the Attorney General's testimony last week left much to 
be desired. He did not provide convincing answers to basic questions, 
relevant information or the relevant underlying documents. Facts are a 
dangerous thing in a coverup. They are seeking to rewrite history and 
the law and control the facts that Congress can know.
  The Bush administration refusal to provide the contemporaneous 
evidence of what the Congress and the Bush administration were 
indicating to each other regarding what the Authorization for the Use 
of Military Force was intended to mean, speaks volumes. Does anyone 
think that if they had any evidence in support of their after-the-fact 
rationalization they would hesitate to provide it, to trumpet it from 
the highest media mountain? Of course not.
  Their failure to provide the information we asked for is not based on 
any claim of privilege, nor could it be. It is just a deafening, 
damning silence. So what is so secret about precisely when they came to 
this legal view, this rationalization of their conduct? Could it have 
come after the illegal conduct had been initiated? Could it have come 
after the President sought to immunize and sanitize the illegal 
conduct? Could it have come months or years later than the impression 
Attorney General Gonzales is attempting to create? Is that why the Bush 
administration is also refusing to provide to us the formal legal 
opinions of our Government, the binding opinions of the Office of Legal 
Counsel from 2001 and 2004 that we have also requested? Would review of 
those opinions show that the after-the-fact legal rationalizations 
changed over time and in 2001 were not those that the Attorney General 
has repackaged for public consumption in their current public relations 
campaign? Now that we know of the existence of the years-old secret 
domestic spying program that included the warrantless wiretapping of 
thousands of Americans, the Bush administration says that we should 
just trust them. That is a blind trust this administration has not 
earned. We have seen this administration's infamous and short-lived 
``Total Information Awareness'' program and know how disastrous the 
FBI's Carnivore and Trilogy computer programs have been.

  I have read recent reports of a secret Pentagon database containing 
information on a wide cross-section of ordinary Americans, including 
Quakers meeting in Florida and Vermont, and have gotten no satisfactory 
explanation of the Defense Department's Counterintelligence Field 
Activities that spy on law-abiding Americans. I read about a secret 
Homeland Security database and datamining activities, as well. Today we 
read about another database with the names of more than 325,000 
terrorists but we do not know how many are Americans, how many are 
listed incorrectly or how the mistakes will be corrected.
  There are new and disturbing reports that the Defense Department and 
the FBI have been monitoring U.S. advocacy groups working on behalf of 
civil rights or against the continuing occupation of Iraq.
  This is all too reminiscent of the dark days when a Republican 
President compiled enemies lists and eavesdropped on political 
opponents and broke into doctors offices and used the vast power of the 
executive branch to violate the constitutional rights of Americans. 
That President resigned in disgrace after articles of impeachment were 
reported in the House of Representatives.
  I was first elected to the Senate in the aftermath of Watergate and 
the White House ``plumbers'' and the illegality that led to the 
impeachment inquiry of President Nixon. The Foreign Intelligence 
Surveillance Act was passed in 1978 as part of the reform and reaction 
to those abuses. It was enacted after decades of abuses by the 
Executive, including the wiretapping of Dr. Martin Luther King, Jr., 
and other political opponents of earlier Government officials.
  It was enacted after the White House ``horrors'' of the Nixon years, 
during which another President asserted that whatever he did was legal 
because he was the President. The law has been extensively updated in 
accordance with the Bush administration's requests in the aftermath of 
9/11 and has been modified further in the last 4 years. It is the 
governing law. The rule of law and freedoms we enjoy as Americans are 
principles upon which this Nation was founded and what we are defending 
and fighting for abroad. This type of covert spying on American 
citizens and targeted groups on American soil betrays those principles 
and it is unacceptable.
  What happens to the rule of law if those in power abuse it and only 
adhere to it selectively? What happens to our liberties when the 
government decides it would rather not follow the rules designed to 
protect our rights? What happens is that the terrorists are allowed to 
achieve a victory they could never achieve on the battlefield. We must 
not be intimidated into abandoning our fundamental values and treasured 
freedoms. We cannot let them scare us into giving up what defines us as 
  There can be no accountability unless the Republican Congress begins 
to do its job and joins with us to demand real oversight and real 
answers. Senators take an oath of office, too. We swear to support and 
defend the Constitution of the United States, to bear true faith and 
allegiance to it, and to faithfully discharge our duties so help us 
God. Let each Senator fulfill that pledge and the Senate can resume its 
intended place in our democracy.
  Let us protect our national security and the national heritage of 
liberty for which so many have given so much.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, I thank the distinguished Senator from 
Vermont for his characteristic kindness and courtesy. I thank the 
distinguished Senator who has been alone in opposing this act in the 
beginning, at a time when I wish I had voted as he did.
  In June 2004, 10 peace activists outside of Halliburton, Inc., in 
Houston gathered to protest the company's war profiteering. They wore 
paper hats and were handing out peanut butter and jelly sandwiches, 
calling attention to Halliburton's overcharging on a food contract for 
American troops in Iraq.
  Unbeknownst to them, they were being watched. U.S. Army personnel at 
the top secret Counterintelligence Field Activity, or CIFA, saw the 
protest as a potential threat to national security.
  CIFA was created 3 years ago by the Defense Department. Its official 
role is forced protection; that is, tracking threat and terrorist plots 
against military installations and personnel inside the United States. 
In 2003, then Deputy Defense Secretary Paul Wolfowitz authorized a 
fact-gathering operation code named TALON, which stands for Threat and 
Local Observation Notice, which would collect raw information about 
suspicious incidents and feed it to CIFA.
  In the case of the ``peanut butter'' demonstration, the Army wrote a 
report on the activity and stored it where? In its files. Newsweek 
magazine has reported that some TALON reports may have contained 
information on U.S. citizens that has been retained in Pentagon files. 
A senior Pentagon official has admitted that the names of these U.S. 
citizens could number in the thousands. Is this where we are heading? 
Is this where we are heading in

[[Page S1339]]

this land of the free? Are secret Government programs that spy on 
American citizens proliferating? The question is not, is Big Brother 
watching? The question is, how many big brothers have we?
  Ever since the New York Times revealed that President George W. Bush 
has personally authorized surveillance of American citizens without 
obtaining a warrant, I have become increasingly concerned about dangers 
to the people's liberty. I believe that both current law and the 
Constitution may have been violated, not just once, not twice, but many 
times, and in ways that the Congress and the American people may never 
know because of this White House and its penchant for control and 
  We cannot continue to claim we are a nation of laws and not of men if 
our laws, and indeed even the Constitution of the United States itself, 
may be summarily breached because of some determination of expediency 
or because the President says, ``Trust me.''
  The Fourth Amendment reads clearly:

       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 Congress has already granted the executive branch rather 
extraordinary authority with changes in the Foreign Intelligence 
Surveillance Act that allow the Government 72 hours after surveillance 
has begun to apply for a warrant. If this surveillance program is what 
the President says it is, a program to eavesdrop upon known terrorists 
in other countries who are conversing with Americans, then there should 
be no difficulty in obtaining a warrant within 72 hours. One might be 
tempted to suspect that the real reason the President authorized 
warrantless surveillance is because there is no need to have to bother 
with the inconveniences of probable cause. Without probable cause as a 
condition of spying on American citizens, the National Security Agency 
could, and can, under this President's direction, spy on anyone, and 
for any reason.
  How do you like that? How about that? We have only the President's 
word, his ``trust me,'' to protect the privacy of the law-abiding 
citizens of this country. One must be especially wary of an 
administration that seems to feel that what it judges to be a good end 
always justifies any means. It is, in fact, not only illegal under our 
system, but it is morally reprehensible to spy on citizens without 
probable cause of wrongdoing.
  When such practices are sanctioned by our own President, what is the 
message we are sending to other countries that the United States is 
trying to convince to adopt our system? It must be painfully obvious 
that a President who can spy on any citizen is very unlike the model of 
democracy the administration is trying to sell abroad.
  In the name of ``fighting terror,'' are we to sacrifice every freedom 
to a President's demand? How far are we to go? Can a President order 
warrantless, house-to-house searches of a neighborhood where he 
suspects a terrorist may be hiding? Can he impose new restrictions on 
what can be printed, what can be broadcast, what can be uttered 
privately because of some perceived threat--perceived by him--to 
national security? Laughable thoughts? I think not.

  This administration has so traumatized the people of this Nation, and 
many in the Congress, that some will swallow whole whatever rubbish 
that is spewed from this White House, as long as it is in some tenuous 
way connected to the so-called war on terror. And the phrase ``war on 
terror,'' while catchy, certainly is a misnomer. Terror is a tactic 
used by all manner of violent organizations to achieve their goal. This 
has been around since time began and will likely be with us until the 
last day of planet Earth.
  We were attacked by bin Laden and by his organization, al-Qaida. If 
anything, what we are engaged in should more properly be called a war 
on the al-Qaida network. But that is too limiting for an administration 
that loves power as much as this one. A war on the al-Qaida network 
might conceivably be over someday. A war on the al-Qaida network might 
have achievable, measurable objectives, and it would be less able to be 
used as a rationale for almost any Government action. It would be 
harder to periodically traumatize the U.S. public, thereby justifying a 
reason for stamping ``secret'' on far too many Government programs and 
  Why hasn't Congress been thoroughly briefed on the President's secret 
eavesdropping program, or on other secret domestic monitoring programs 
run by the Pentagon or other Government entities? Is it because keeping 
official secrets prevents annoying congressional oversight? Revealing 
this program in its entirety to too many Members of Congress could 
certainly have unmasked its probable illegality at a much earlier date, 
and may have allowed Members of Congress to pry information out of the 
White House that the Senate Judiciary Committee could not pry out of 
Attorney General Gonzales, who seemed generally confused about for whom 
he works--the public or his old boss, the President.
  Attorney General Gonzales refused to divulge whether purely domestic 
communications have also been caught up in this warrantless 
surveillance, and he refused to assure the Senate Judiciary Committee 
and the American public that the administration has not deliberately 
tapped Americans' telephone calls and computers or searched their homes 
without warrants. Nor would he reveal whether even a single arrest has 
resulted from the program.
  What about the first amendment? What about the chilling effect that 
warrantless eavesdropping is already having on those law-abiding 
American citizens who may not support the war in Iraq, or who may 
simply communicate with friends or relatives overseas? Eventually, the 
feeling that no conversation is private will cause perfectly innocent 
people to think carefully before they candidly express opinions or even 
say something in jest.
  Already we have heard suggestions that freedom of the press should be 
subject to new restrictions. Who among us can feel comfortable knowing 
that the National Security Agency has been operating with an expansive 
view of its role since 2001, forwarding wholesale information from 
foreign intelligence communication intercepts involving American 
citizens, including the names of individuals to the FBI, in a departure 
from past practices, and tapping some of the country's main 
telecommunication arteries in order to trace and analyze information?
  The administration could have come to Congress to address any aspects 
of the FISA law in the revised PATRIOT Act which the administration 
proposed, but they did not, probably because they wished the completely 
unfettered power to do whatever they pleased, the laws and the 
Constitution be damned.
  I plead with the American public to tune in to what is happening in 
this country. Please forget the political party with which you may 
usually be associated and, instead, think about the right of due 
process, the presumption of innocence, and the right to a private life. 
Forget the now tired political spin that if one does not support 
warrantless spying, then one may be less than patriotic.
  Focus on what is happening to truth in this country and then read 
President Bush's statement to a Buffalo, NY, audience on April 24, 

       Any time you hear the United States Government talking 
     about wiretap, it requires--a wiretap requires a court order. 
     Nothing has changed, by the way. When we are talking about 
     chasing down terrorists, we are talking about getting a court 
     order before we do so.

  That statement is false, and the President knew it was false when he 
made it because he had authorized the Government to wiretap without a 
court order shortly after the 2001 attacks.
  This President, in my judgment, may have broken the law and most 
certainly has violated the spirit of the Constitution and the public 
  Yet I hear strange comments coming from some Members of Congress to 
the effect that, well, if the President has broken the law, let's just 
change the law. That is tantamount to saying that whatever the 
President does is legal, and the last time we heard that claim was from 
the White House of Richard M. Nixon. Congress must rise to the occasion 
and demand answers to the serious questions surrounding warrantless

[[Page S1340]]

spying. And Congress must stop being spooked by false charges that 
unless it goes along in blind obedience with every outrageous violation 
of the separation of powers, it is soft on terrorism. Perhaps we can 
take courage from the American Bar Association which, on Monday, 
February 13, denounced President Bush's warrantless surveillance and 
expressed the view that he had exceeded his constitutional powers.
  There is a need for a thorough investigation of all of our domestic 
spying programs. We have to know what is being done by whom and to 
whom. We need to know if the Federal Intelligence Surveillance Act has 
been breached and if the Constitutional rights of thousands of 
Americans have been violated without cause. The question is: Can the 
Congress, under control of the President's political party, conduct the 
type of thorough, far-ranging investigation which is necessary. It is 
absolutely essential that Congress try because it is vital to at least 
attempt the proper restoration of the checks and balances. 
Unfortunately, in a Congressional election year, the effort will most 
likely be seriously hampered by politics. In fact, today's Washington 
Post reports that an all-out White House lobbying campaign has 
dramatically slowed the congressional probe of NSA spying and may kill 
  I want to know how many Americans have been spied upon. Yes, I want 
to know how it is determined which individuals are monitored and who 
makes such determinations. Yes, I want to know if the 
telecommunications industry is involved in a massive screening of the 
domestic telephone calls of ordinary Americans like you and me. I want 
to know if the U.S. Post Office is involved. I want to know, and the 
American people deserve to know, if the law has been broken and the 
Constitution has been breached.
  Historian Lord Acton once observed that:

       Everything secret degenerates, even the administration of 
     justice; nothing is safe that does not show how it can bear 
     discussion and publicity.

  The culture of secrecy, which has deepened since the attacks on 
September 11, has presented this Nation with an awful dilemma. In order 
to protect this open society, are we to believe that measures must be 
taken that in insidious and unconstitutional ways close it down? I 
believe that the answer must be an emphatic ``no.''
  I yield the floor.
  Mr. President, 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. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent to be recognized 
at the conclusion of the remarks of the Senator from Virginia and the 
Senator from Arkansas.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Virginia is recognized.
  Mr. WARNER. I thank the Chair.
  (The remarks of Mr. Warner and Mr. Pryor pertaining to the 
introduction of S. 2290 are printed in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. STABENOW. 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. LEAHY. Mr. President, as one of the authors of the original USA 
PATRIOT Act, as someone who voted to reauthorize an improved version of 
the act back in July 2005, and as an American concerned with our 
security, I am glad that we are making progress, but I have some 
misgivings about the bill being considered today. I will vote to 
proceed and hope there is an opportunity to improve the bill and the 
PATRIOT Act reauthorization even further.
  I believe that the PATRIOT Act provides important and valuable tools 
for the protection of Americans from terrorism. These matters should be 
governed by law and not by whim. Legislative action should be the clear 
and unambiguous legal footing for Government powers.
  I am glad that the sunsets that Congressman Armey and I insisted be 
included in the 2001 act brought about reconsideration and some 
refinement of the powers authorized in that measure. Those sunsets 
contributed to congressional oversight. Without them I expect the Bush 
administration would have stonewalled our requests for information and 
for review of the way they were implementing the statute. The sunsets 
were the reason we have been going through a review and renewal process 
over the last few months. Now the challenge to Congress is to provide 
the effective oversight that will be needed in the days ahead and to 
ensure that there is effective court review of actions that affect the 
rights of Americans.
  Several specific provisions of this bill reflect modest improvement 
over both the original PATRIOT Act and the reauthorization proposal 
initially produced by the House-Senate conference. It is with these 
improvements in mind that I will support Senator Sununu's bill.
  These improvements, like those contained in the conference report, 
were hard won. The Bush administration pursued its usual strategy of 
demanding sweeping Executive powers and resisting checks and balances. 
As usual, it was short on bipartisan dialogue and long on partisan 
rhetoric. And as usual, the Republican majorities in the House and 
Senate did their utmost to follow the White House's directives and 
prevent any breakout of bipartisanship. But a ray of bipartisanship did 
break out, and this reauthorization package is the better for it.
  Senator Sununu's bill modifies a provision I objected to that would 
have required American citizens to tell the FBI before they exercise 
their right as Americans to seek the advice of counsel. Chairman 
Specter and I worked together to correct this provision and Senator 
Sununu has improved it further. I commend his efforts in this regard.
  Another important change provided by the Sununu bill builds upon 
another objection I had and an idea I shared with him to ensure that 
libraries engaged in their customary and traditional activities not be 
subject to national security letters as Internet service providers. 
This is a matter I first raised and feel very strongly about. I commend 
Senator Sununu for the progress he has been able to make in this 
regard. The bill is intended to clarify that libraries as they 
traditionally and currently function are not electronic service 
providers, and may not be served with NSLs for business records simply 
because they provide Internet access to their patrons. Under this 
clarification, a library may be served with an NSL only if it functions 
as a true Internet service provider, as by providing services to 
persons located outside the premises of the library, but this is an 
unlikely scenario. In most if not all cases, if the Government wants to 
review library records for foreign intelligence purposes, it will need 
a court order to do so. The language I proposed to Senator Sununu in 
this regard was less ambiguous than that to which the Bush 
administration would agree. Still, my intent, Senator Sununu's intent, 
and the intent of Congress in this regard should be clear. It is to 
strengthen the meaning and ensure proper implementation of this 
provision that I will support this bill. As a supporter, I trust my 
intent will inform those charged with implementing the bill and 
reviewing its proper implementation.
  It is regrettable that the Bush administration would not engage all 
of us in a bipartisan conversation on ways we could improve the bill. 
The White House Counsel only spoke to the Republican Senators. In that 
setting, they negotiated to achieve what they viewed as improvements. 
It is less than we would have liked. I know that the Republican 
Senators who worked on this bill were well intentioned and I commend 
their efforts. Regrettably, I note that one set of changes included in 
this bill I strongly oppose.
  The Bush administration has used the last round of discussions with 
Republican Senators to make the gag order provisions worse, in my view, 
by forbidding any challenge for one year. The Bush administration has 
simply refused to listen to reason on this and insists on this thumb on 
the scale of justice. In addition, the bill continues and cements into 
law procedures that, in my view, unfairly determine challenges to gag 
orders. The bill allows the Government to ensure itself of victory by 
declaring that, in its view, disclosure ``may'' endanger national 
security or ``may'' interfere with diplomatic relations. This is the 
type of provision to which I have never agreed in connection with 
national security letters or section 215 orders. It will serve to 
prevent meaningful judicial review of gag orders and, in my view, is 
  I will continue to work to improve the PATRIOT Act. I will work to 
provide better oversight of the use of national security letters and to 
remove the un-American restraints on meaningful judicial review. I will 
seek to monitor how sensitive personal information from medical files, 
gun stores, and libraries are obtained, used, and retained. While we 
have made some progress, much is left to be done.
  In 2001, I fought for time to provide some balance to Attorney 
General Ashcroft's demands that the Bush administration's antiterrorism 
bill be enacted in a week. We worked hard for 6 weeks to make that bill 
better and were able to include the sunset provisions that contributed 
to reconsideration of several provisions over the last several months. 
Last year I worked with Chairman Specter and all the members of the 
Judiciary Committee and the Senate to pass a reauthorization bill in 
July. As we proceeded into the House-Senate conference on the measure, 
the Bush administration and congressional Republicans locked Democratic 
conferees out of their deliberations and wrote the final bill.

[[Page S1343]]

That was wrong. In December, working with a bipartisan group of 
Senators, we were able to urge reconsideration of that final bill. 
Senators Sununu and Craig were able to use that opportunity to make 
some improvements. I commend them for what they were able to achieve 
and hope that my support for their efforts has been helpful. I wish 
that along the way the Bush administration had shown a similar interest 
in working together to get to the best law we could for the American 
people. When the public's security and liberty interests are at stake, 
it seems especially prudent and compelling to me that every effort 
should be made to proceed on a bipartisan basis toward constructive 
solutions. Instead, the White House has chosen once again to try to 
politicize the situation.
  Since the conference was hijacked, I have tried to get this measure 
back on the right track. We have been able to achieve some 
improvements, and that is no small feat given the resistance by this 
White House to bipartisan suggestions. I regret that this bill is not 
better and that the intransigence of the Bush administration has 
prevented a better balance and better protections for the American 
people. I will continue to work to provide the tools that we need to 
protect the American people. I will continue to work to provide the 
oversight and checks needed on the use of Government power and will 
seek to improve this reauthorization of the PATRIOT Act.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. I understand an agreement has been reached to have the 
cloture vote on the motion to proceed tomorrow morning and then a 
cloture vote on the bill on that Tuesday after we return from the 
  I point out the agreement essentially implements the schedule that 
would have been followed had I required the Senate to go through all 
the procedural hoops necessary to reach a vote on the White House deal. 
It, of course, maintains the 60-vote threshold for passing this 
  I thank the two leaders for working with me. I have no desire to 
inconvenience my colleagues or force votes in the middle of the night, 
as I understand the majority leader was threatening.
  I have been trying all day to get an agreement to allow debate and 
votes on a small number of amendments to this bill. I do not understand 
what the majority leader is afraid of or concerned about in rejecting 
this reasonable request. So while I do not object to the agreement that 
will be propounded in a few minutes, I hope once we are on the bill 
tomorrow, I will be able to offer amendments and have them voted on.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. FRIST. 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. FRIST. Mr. President, we are at a continuation of a sequence of 
events which has resulted in a lot of delay, a lot of postponement, 
really reflecting these insufferable attempts to put off the Nation's 
business with obstruction and stalling. It is disturbing to me because 
we have so many issues to address in securing America's future, 
securing America's future in terms of security, securing America's 
future when it comes to looking at health care issues, education 
issues, securing America's prosperity as we look at competition and 
innovation and things we can do to invest in math and science 
education, and making us more competitive and creating jobs with 
respect to China and India.
  There are so many issues, many of which were outlined by the 
President of the United States in the State of the Union Address. Yet 
we are going through this stall ball, which is reflected now on the 
PATRIOT Act, where we have the PATRIOT Act reauthorization being 
filibustered by the Democrats, which started in December when we had a 
filibuster on the reauthorization, and the filibuster now on the motion 
to proceed. Now, with that continued postponement and filibuster, there 
is no way to complete this reauthorization of the PATRIOT Act before we 
go on recess. There is no way to do it using the tools of the Senate, 
using the tools of the filibuster.
  And a filibuster I can understand if you are shaping the bill or if 
the outcome is not absolutely predetermined. But the outcome here is 
absolutely predetermined. There will be overwhelming support in this 
body for this bill. It is important to the safety and security of the 
American people. It breaks down barriers between the intelligence 
community and our law enforcement community, and it does so protecting 
the civil liberties of Americans.
  There is overwhelming support. The outcome is determined. Yet we have 
been in a quorum call for most of the day, and using the rules of the 
Senate. Again, people say: Well, if it is a filibuster, why aren't 
people talking all the time? With the rules of the Senate, you do not 
have to be talking, but you control the Senate in terms of time. With 
that, we are able to file cloture motions, and then you wait another 30 
hours, and it is a series of cloture motions, which stretches the time 
out, again, really wasting precious time on the floor of the Senate 
when we should be governing, answering, responding to the problems of 
everyday Americans, the challenges of everyday Americans.
  Looking at what we have gone through recently, for example, the 
pensions bill, we passed the pensions bill on November 16, 2005, with a 
vote of 97 to 2, overwhelming support. I asked the Democrats to appoint 
conferees on December 15 of last year. I asked them to appoint 
conferees again, renewing that request on February 1. I have been in 
continued conversation and discussions with the Democratic leadership. 
Again: Not yet, postponement. We know the issues pertaining to the 
pensions bill. We can't respond until we can get to conference. The 
House is ready with conferees, but we can't go to conference until we 
appoint conferees. Yet once again, those names are not given.
  I have been in discussion with the Democratic leader. I understand we 
will be able to appoint conferees in the next 24 hours or so. But it is 
the pattern of postponement, delay, obstruction, and stopping the 
Nation's business that disturbs me.
  The asbestos bill, I said long ago that we would spend this period on 
asbestos. We were forced by the other side of the aisle to file cloture 
on the motion to proceed just to get on that bill, a bill that does 
address victims who are suffering from asbestos-related disease and who 
are not being compensated fairly. We voted in favor of cloture 98 to 1. 
Then we had delayed consideration of the bill by 3 days by forcing 
cloture, and then we had insistence on a day of debate only--again, 
  The Alito nomination ended up being successful; the advice and 
consent was carried out. But once again, there was a week delay beyond 
which we had worked out a time line before we could bring the Alito 
nomination to the floor.
  Earlier this week and over the last couple of weeks, we have had to 
deal with the tax reconciliation bill to go to conference. The 
Democrats forced the Senate to consider the bill three separate times 
just to get to conference. We had 20 hours of debate the first time, 
with 17 rollcall votes, and then we had another 20-hour limitation, 
with 7 more rollcall votes. Then we had a series of votes yesterday 
morning on motions to instruct before we get to conference. All of that 
didn't change the bill at all. These are nonbinding motions to 
instruct--but again, another manifestation of stalling, postponing, 
  It is frustrating because whether it is the tax relief bill or the 
Alito nomination or the asbestos bill or the pensions bill or, now, the 
PATRIOT Act, it is a pattern that, if we are going to be working 
together in the Nation's interest, we cannot continue over the course 
of the year; otherwise, we will not get anything done when we do have 
challenging problems with health care costs too high, things that we 
can do on education in terms of math and science, making our country 
and our students more competitive in the future, addressing issues 
surrounding funding our military.
  So with that, I plead to my colleagues on both sides of the aisle to 
work together to make progress. Let's be doing what we are supposed to 

[[Page S1344]]

doing and that is governing in the Nation's interest.
  Mr. President, I ask unanimous consent that the cloture vote on the 
pending motion to proceed occur at 10:30 a.m. tomorrow with the 
mandatory quorum waived; provided further that if cloture is invoked, 
notwithstanding rule XXII, the Senate proceed immediately to the bill; 
I further ask consent that if a cloture motion is filed on the bill 
during Thursday's session, then that cloture vote occur at 2:30 p.m. on 
Tuesday, February 28; provided further that if cloture is invoked on 
the bill, then at 10 a.m. on Wednesday, March 1, the bill be read a 
third time and the Senate proceed to a vote on the bill with no 
intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.