Congressional Record: March 6, 2006 (Senate)
Page S1791-S1793                    


      By Mr. SPECTER (for himself, Mr. Leahy, Ms. Murkowski, Mr. 
        Sununu, Mr. Feingold, Mr. Craig, Mr. Hagel, Mr. Durbin, Mr. 
        Salazar, Mrs. Feinstein, Mr. Obama, and Mr. Kerry):
  S. 2369. A bill to require a more reasonable period for delayed-
notice search warrants, to provide enhanced judicial review of FISA 
orders and national security letters, to require an enhanced factual 
basis for a FISA order, and to create national security letter sunset 
provisions; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to offer 
legislation which would amplify the PATRIOT Act, which we expect to be 
passed by the House of Representatives tomorrow, with these amendments 
to restore the provisions of the PATRIOT Act to the provisions of the 
Senate bill which was passed unanimously by the Judiciary Committee on 
which the Presiding Officer sits, as do I, and was then adopted by 
unanimous consent by the Senate.
  The PATRIOT Act has had a complex procedural history where the House 
passed a version which was substantially different from the Senate 
version. Then we hammered out a conference report which, in my view, 
was an acceptable compromise. It did not have all of the provisions 
which I would have preferred. It did not have the provisions of the 
Senate bill. But in a bicameral legislature, we learn to work with the 
art of the possible. That was accommodation.
  We worked closely with Chairman Sensenbrenner in the House and 
crafted a bill which was acceptable. There were certain key concessions 
made to the Senate which I believed were important, perhaps 
indispensable, the leading one being the sunset provision which was 
finally established at 4 years. That had been the provision in the 
Senate bill. And by sunset, for anyone who may be watching on C-SPAN2, 
that is the provision which terminates the bill, and then it has to 
come back to Congress for reevaluation to see if we want to give the 
expanded powers to law enforcement officials. The House bill had 10 
years; the Senate bill had 4 years. The House wanted a compromise at 7 
years, and the Senate held fast. And the compromise was reached so we 
finally put a provision in at 4 years.
  The PATRIOT Act was passed shortly after the terrible tragedies of 9/
11, when the United States was victimized by a terrorist attack. It was 
an effort to give law enforcement officials more power to deal with 
terrorism. There is always a balance to be struck between civil 
liberties on the one hand and sufficient power for law enforcement on 
the other. There came into a coalition representatives of both extreme 
ends of the political spectrum, the so-called far left, the so-called 
far right, joining together with the insistence on more civil 
liberties. It seemed to me that the point was well taken.
  The legislation I am introducing today, I introduce on behalf of 
myself, Senators Leahy, Murkowski, Sununu, Feingold, Craig, Hagel, 
Durbin, Salazar, Feinstein, Obama, and Kerry. The cosponsors are the 
four Republicans who did not vote for cloture when the bill was before 
the Senate. They had decided not to vote to cut off debate, which might 
have given us the leverage at that time to pass the conference report, 
but insisted on some modifications. With the leadership of Senator 
Sununu, those modifications have been enacted in a companion bill which 
is going to the House of Representatives for House action tomorrow. It 
is my expectation that the legislation will be passed. There is an 
enrolling ceremony set by the Speaker of the House and the majority 
leader for Wednesday morning, so that is a pretty good sign that we are 
en route to having the PATRIOT Act enacted.

  I do not think that ought to be the ending point. That is why I am 
introducing this supplemental legislation today. What this legislation 
does is reinstate provisions of the original Senate-passed bill. For 
example, on the delayed notice search warrants, the

[[Page S1792]]

House bill had called for 180 days. The Senate bill had called for 7 
days' notice. The conference report compromised out at 30 days, which I 
thought was acceptable, while not as good as I would have liked it. So 
in this new bill, the delayed notice provision is set at 7 days. That 
means that when a search warrant is authorized, where the subject of 
the search warrant is not told--ordinarily if you have a search and 
seizure, law enforcement officials come in and in broad daylight make 
the search and seizure. The resident, the owner of the residence knows 
about it. But a delayed notice search warrant is structured so that the 
recipient does not know about it, where there is cause shown that the 
investigation would be impeded if the recipient were to be told at that 
time. This cuts the time to 7 days.
  There had been considerable controversy over the provisions of 
section 215 where the Senate bill had a three-part test, and a fourth 
provision was added to the conference report where the judge had the 
discretion to grant the order if there was adequate showing in the 
opinion of the court to pursue a terrorist investigation. But the new 
bill comes back to the three-part test of the original Senate bill so 
the records sought must, first, pertain to a foreign power or an agent 
of a foreign power; second, are relevant to the activities of a 
suspected agent of a foreign power who is the subject of an authorized 
investigation; or, three, pertain to an individual in contact with the 
suspected agent of a foreign power.
  The third provision provides for a judicial review of national 
security letters. It would eliminate the conclusive presumption with 
respect to national security letters that the court would automatically 
uphold nondisclosure--that is, a gag order--upon the Government's good 
faith certification that disclosure may endanger the national security 
of the United States or interfere with diplomatic relations. The bill 
introduced today would allow the judge to review all of the factors and 
would not be controlled by this conclusive presumption.
  The bill introduced today also makes a change on judicial review of 
section 215, which eliminates both the conclusive presumption which was 
added in on the legislation sponsored by Senator Sununu, and it 
eliminates the mandatory 1-year waiting period.

  The sunset on national security letters is an additional provision 
which adds a 4-year sunset to national security letters, which is the 
same sunset in the balance of the conference report. National security 
letters had not been subjected to the PATRIOT Act but were included in 
the Senate version this time. That provision is added.
  We are having an oversight hearing with the Director of the FBI later 
this month. It is my intention, as chairman of the Judiciary Committee, 
to include in that oversight hearing these provisions. We want to see 
exactly how important they are, what the FBI is doing with them. We 
want law enforcement to have the tools it needs.
  I know this is a subject near and dear to the heart of the Presiding 
Officer who was the U.S. attorney in Alabama for law enforcement and 
attorney general, and something of which this Senator has very 
substantial concern based in part on my tenure as district attorney of 
Philadelphia. So we want law enforcement to have the tools which are 
needed. At the same time we want to achieve an appropriate balance with 
civil liberties.
  The statement has been made that it is not anticipated that the House 
will act on such legislation this year. It is a long year. We will wait 
and see. We will see what the developments are. We will see how our 
fight against terrorism goes. We will see what the oversight provisions 
are. But this bill will be useful as a marker to promote further 
reconsideration of that original Senate bill that passed last year. It 
was a significant occasion, if not monumental, to have all 18 members 
of the Judiciary Committee agree on a bill which, as the Presiding 
Officer knows, as do I and people who are familiar with the Judiciary 
Committee, we have representatives at opposite ends of the political 
spectrum. That is what is attractive about the Judiciary Committee. 
Notwithstanding our divergence of views, we have had remarkable success 
in the past 14 months passing the bankruptcy bill, the class action 
bill, and the asbestos bill out of committee.
  We stumbled a little. We are one vote short on the budget point of 
order. That is going to be coming back.
  We are taking a look at some of the provisions I am personally 
talking to Senators about on an individual basis. There is a recognized 
need for asbestos reform. There is only disagreement as to what it 
ought to be. I am asking Senators to take a look at the bill and tell 
me what it is they would like to see done in order to have the bill 
receive the requisite support here to overcome the budget point of 
order--I think we have the votes already there--but to overcome cloture 
and to have a bill that can be enacted.
  Then our committee led the way in the confirmation of the new Chief 
Justice of the Supreme Court, Chief Justice Roberts, and Justice Alito. 
We are now in the midst of working on immigration. I think the renewal 
of the PATRIOT Act is a significant step forward--something the 
President has been anxious to have done and something which will give 
law enforcement the tools it needs with appropriate balance.
  I ask unanimous consent that the text of this new bill be printed in 
the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                                S. 2369

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       Section 3103a(b)(3) of title 18, United States Code, is 
     amended by striking ``30 days'' and inserting ``7 days''.


       (a) FISA.--Subsection (f)(2) of section 501 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is 
       (1) in subparagraph (A)(i)--
       (A) by striking ``a production order'' and inserting ``a 
     production order or nondisclosure order''; and
       (B) by striking ``Not less than 1 year'' and all that 
     follows through the end of the clause;
       (2) in subparagraph (A)(ii), by striking ``production order 
     or nondisclosure''; and
       (3) in subparagraph (C), by striking clause (ii) and 
     redesignating clause (iii) as clause (ii).
       (b) Judicial Review of National Security Letters.--Section 
     3511(b) of title 18, United States Code, is amended--
       (1) in paragraph (2), by striking ``If, at the time of the 
     petition,'' and all that follows through the end of the 
     paragraph; and
       (2) in paragraph (3), by striking ``If the recertification 
     that disclosure may'' and all that follows through ``made in 
     bad faith.''.


       Section 501(b)(2)(A) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1861(b)(2)(A)) is amended 
     to read as follows:
       ``(A) a statement of facts showing that there are 
     reasonable grounds to believe that the records or other 
     things sought--
       ``(i) are relevant to an authorized investigation (other 
     than a threat assessment) conducted in accordance with 
     subsection (a)(2) to obtain foreign intelligence information 
     not concerning a United States person or to protect against 
     international terrorism or clandestine intelligence 
     activities; and
       ``(ii) either--

       ``(I) pertain to a foreign power or an agent of a foreign 
       ``(II) are relevant to the activities of a suspected agent 
     of a foreign power who is the subject of such authorized 
     investigation; or
       ``(III) pertain to an individual in contact with, or known 
     to, a suspected agent of a foreign power; and''.


       Section 102 of the USA PATRIOT Improvement and 
     Reauthorization Act of 2005 (H.R. 3199, 109th Congress, 2d 
     Session) is amended by adding at the end the following:
       ``(c) Other Sunsets.--
       ``(1) In general.--Effective December 31, 2009, the 
     following provisions are amended so that they read as they 
     read on February 27, 2006:
       ``(A) Section 2709 of title 18, United States Code.
       ``(B) Sections 626 and 627 of the Fair Credit Reporting Act 
     (15 U.S.C. 1681u, 1681v).
       ``(C) Section 1114 of the Right to Financial Privacy Act 
     (12 U.S.C. 3414).
       ``(D) Section 802 of the National Security Act of 1947 (50 
     U.S.C. 436).
       ``(2) Exception.--With respect to any particular foreign 
     intelligence investigation that began before the date on 
     which the provisions referred to in paragraph (1) cease to 
     have effect, or with respect to any particular offense or 
     potential offense that began or occurred before the date on 
     which such provisions cease to have effect, such provisions 
     shall continue in effect.''.


       Amendments to provisions of law made by this Act are to 
     such provisions, as amended by the USA PATRIOT Improvement 
     and Reauthorization Act of 2005 (H.R. 3199, 109th Congress, 
     2d Session) and by the USA PATRIOT Act Additional 

[[Page S1793]]

     Amendments Act of 2006 (S. 2271, 109th Congress, 2d Session).
  Mr. LEAHY. Mr. President, the PATRIOT Act reauthorization legislation 
that the Senate may vote on this week still has serious flaws and 
troubling omissions. I have spent several months working closely with 
Members from both parties in an attempt to improve these defects. Even 
after the Bush administration and congressional Republicans hijacked 
the House-Senate conference, I tried to get this measure back on the 
right track. Working with a bipartisan group of Senators, we were able 
to achieve some improvements. I regret that the final package is not 
better and that the intransigence of the administration has prevented a 
better bill with better protections for the American people.
  I remain committed to working to provide the tools that we need to 
protect the American people. That includes working to provide the 
oversight and checks needed on the uses of Government power and to 
improve the current reauthorization of the PATRIOT Act. I am therefore 
pleased to join Senator Specter, Senator Sununu, Senator Craig, Senator 
Feingold, and others in introducing a bill to improve the 
reauthorization legislation in several important respects.
  Most importantly, the Specter-Leahy bill corrects one of the most 
egregious ``police state'' provisions regarding gag orders. The Bush-
Cheney administration used the last round of discussions with 
Republican Senators to make the gag order provisions worse, in my view, 
by forbidding any court challenge for 1 year. There is no justification 
for this mandatory waiting period for judicial review, and our bill 
eliminates it. Our bill also eliminates provisions that allow the 
Government to ensure itself of victory by certifying that, in its view, 
disclosure ``may'' endanger national security or ``may'' interfere with 
diplomatic relations. These un-American restraints on meaningful 
judicial review are unfair, unjustified, and completely unacceptable.
  I sought to make these changes to the gag orders provisions in an 
amendment I filed to Senator Sununu's bill, S. 227l, which modified the 
conference report in various respects. Senator Feingold filed other 
amendments aimed at bringing the conference report more in line with 
the bipartisan reauthorization bill that every Member of the Senate 
approved last year. Regrettably, the majority leader chose to prevent 
any effort to offer amendments to S. 227l and effectively stifled open 
  In addition to fixing the gag order provisions, the Specter-Leahy 
bill adopts the Senate-passed standard for obtaining secret court 
orders under section 215 of the PATRIOT Act. Under this standard, the 
Government can obtain private, confidential records such as library and 
medical records only if there is some connection between those records 
and a suspected terrorist or spy. The Specter-Leahy bill also restores 
the pre-PATRIOT Act rule, adopted by the Senate, that notice of ``sneak 
and peek'' searches may be delayed for no more than 7 days unless 
extended. The conference report sets a 30-day rule for the initial 
delay, more than three times what the Senate, and pre-PATRIOT Act 
courts, deemed appropriate. Finally, the Specter-Leahy bill adds a 4 
year sunset to the national security letter authorities created in the 
conference report. This sunset provision, like those included in the 
original PATRIOT Act at the insistence of myself and House Majority 
Leader Dick Armey, would facilitate oversight and ensure accountability 
for the use of these administrative subpoena authorities.
  Reauthorization of the PATRIOT Act has been a more difficult and far 
more painful process than it should have been. Under the leadership of 
Chairman Specter, the Judiciary Committee managed in just a few weeks 
to produce a bipartisan bill that passed the Senate unanimously. The 
House-Senate conference took a different course and produced a bill 
that Members on both sides of the aisle found unacceptable. It has been 
improved, but critical problems remain. The Specter-Leahy bill corrects 
the worst of these problems, and I will work with the chairman to enact 
these commonsense reforms before the end of the year.