This might not be perfect, since it’s been some time since I did any original cataloging for web pages, but here it is (apologies in advance for the MESH). Suggestions are welcome. One hopes you click on the link below to read the actual statement, too.
100 1 Feingold, Russell D.
245 10 $a I strongly oppose Patriot Act deal : $b statement of U.S. Senator Russ Feingold as prepared for delivery from the Senate floor, February 15, 2006 : [$h electronic file]/ $c Russ Feingold.
260 00 $a [Encinitas , CA]: $b Truthout.org, $c 
300 $a World Wide Web Page .
500 $a Wednesday, February 15, 2006.
530 $a Available via the World Wide Web.
538 $a System requirements: Internet Explorer or other web browser.
650 12 $a Federal Government $z United States.
650 12 $a Terrorism $x prevention & control $z United States.
650 12 $a Terrorism $x legislation & jurisprudence $z United States.
856 41 $u http://www.truthout.org/docs_2006/021506R.shtml
I Strongly Oppose Patriot Act Deal
By Senator Russ Feingold
t r u t h o u t | Statement
Wednesday 15 February 2006
Statement of US Senator Russ Feingold as prepared for delivery from the Senate floor, February 15, 2006.
President, it will come as no surprise that I’d like to talk about the
Patriot Act today. I strongly oppose proceeding to 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
with the White House last week. Some may argue that there’s 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 explain at length my reasons for doing so.
I greatly respect the Senators who negotiated this deal, I am gravely
disappointed in the outcome. The White House would agree to only a few
minor changes to the same Patriot Act conference report that could not
get through the Senate back in December. These changes do not address
the major problems with the Patriot Act that a bipartisan coalition has
been trying to fix for the past several years. They are, quite frankly
a fig leaf to allow those who were fighting hard to improve the Act to
now 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 just a couple months ago. What we
are seeing is quite simply a capitulation to the intransigent and
misleading rhetoric of a White House that sees any effort to protect
civil liberties as a sign of weakness. Protecting American values is
not weakness, Mr. President. Standing on principle is not weakness. And
committing to fighting terrorism aggressively without compromising the
rights and freedoms this country was founded upon – that’s not weakness
either. We’ve 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-savings changes just don’t cut it. I cannot
support this deal, and I strongly oppose proceeding to legislation that
will implement it.
understand the pressure that my colleagues have been under on this
issue, and I appreciate all the hard work that they have done on the
Patriot Act. It has been very gratifying to work on a bipartisan basis
on this issue. It is unfortunate that the White House is so obviously
trying to make this into a partisan issue, because it sees some
political advantage to doing so. Whether the White House likes it or
not, this will continue to be an issue where both Democrats and
Republicans have concerns, and we will continue to work together for
changes to the law. I am sure of that.
I will also continue to strongly oppose any reauthorization of the
Patriot Act that does not protect the rights and freedoms of
law-abiding Americans with no connection to terrorism. This deal does
not meet that standard – it doesn’t even come close. I urge my
colleagues to oppose it, and therefore I ask that they oppose
proceeding to this legislation.
wanted to take some time today to lay out the background and the
context for this ongoing debate over the Patriot Act, a debate that
will not end with the reauthorization of the sixteen provisions that
are now set to expire on March 10. And I would like to discuss my
concerns about this reauthorization deal with some specificity.
President, because I was the only Senator to vote against the Patriot
Act in 2001, I want to be very clear from the start. I am not opposed
to reauthorization of the Patriot Act. I supported the bipartisan,
compromise reauthorization bill that the Senate passed 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 a
good bill. If that were the bill we had considered back in December or
the bill we were considering today, I would speak 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 objections.
also want to respond to those who argue that 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 of the Patriot Act to expire. There are any
number of ways that we can reauthorize the Act while amending its most
problematic provisions and I am not prepared to support reauthorization
without adequate reforms.
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 read some excerpts from a letter that we sent explaining our
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 US 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.
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
draft conference report does not provide meaningful judicial review of
an NSL’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 government is acting in bad faith. The
recipients of NSLs are entitled to meaningful judicial review of a gag
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.
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 time frame should not be a hardship on the
is from a letter that we sent late last year. Now, you might ask, in
this newly announced deal on the Patriot Act, have any of these five
problems been solved?
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
convincing people to accept a deal that makes only a tiny substantive
improvement to the bill that was rejected in December. This is simply
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. But 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 four
years, I supported most of that bill. There are many good provisions in
that bill. As my colleagues know, the Patriot Act did a lot more than
expand our surveillance laws. Among other things, it set up a national
network to prevent and detect electronic crimes, like the sabotage of
the nation’s financial sector; it established a counterterrorism fund
to help Justice Department offices disabled in terrorist attacks keep
operating; and it changed the money laundering laws to make them more
useful in disrupting the financing of terrorist organizations. One
section even condemned discrimination against Arab and Muslim
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 termed "the wall" that had built up between
intelligence and law enforcement agencies.
we start debating the Patriot Act, we hear a lot of people saying that
we must reauthorize the Patriot Act in order to ensure that the wall
does not go back up. So let me make this clear. I supported the
information sharing provisions of the Patriot Act. One of the key
lessons we learned in the wake of September 11 was that our
intelligence and law enforcement agencies were not sharing information
with each other, even where the statutes permitted it.
the wall was not so much a legal problem as it was a problem of
culture. The report of the 9/11 Commission made that clear. And I’m
sorry to report that we have not made as much progress as we should
have in bringing down those very significant cultural barriers to
information sharing among our agencies. The 9/11 Commission report card
that was issued toward the end of last year gave the government a "D"
for information sharing because our agencies’ cultures have not changed
enough. As the statement issued by Chairman Kean and Vice Chairman
Hamilton explained, "You can change the law, you can change the
technology, but you still need to change the culture. You still need to
motivate institutions and individuals to share information." And so
far, our government has not met this challenge.
about the importance of information sharing, as Administration
officials and other supporters of the conference report have done
repeatedly, is part of a pattern that started several years ago. Rather
than engage in a true debate on the controversial parts of the Patriot
Act, as some in this body have done – to their credit – during this
reauthorization process, many proponents of the Patriot Act just point
to non-controversial provisions of the Patriot Act and talk about how
important they are. They say this bill must be passed because it
reauthorizes those non-controversial provisions. That does not advance
the debate, it just muddies the waters. We don’t have to accept bad
provisions to make sure the good provisions become law.
President, today I do want to 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 very
unfortunate that the whole Congress could not come together as the
Senate did around the Senate’s bipartisan, compromise reauthorization
bill. Back in July, the Senate Judiciary Committee voted unanimously in
favor of a reauthorization bill that made meaningful changes to the
most controversial provisions of the Patriot Act to protect the rights
and freedoms of innocent Americans. Shortly thereafter, that bill
passed the full Senate by unanimous consent.
was not easy for me to support that Senate bill, which fell short of
the improvements contained in the bipartisan SAFE Act. But at the end
of the day, the Senate bill contained meaningful changes to some of the
most problematic provisions of the Patriot Act – provisions that I have
been trying to fix since October 2001 – and I decided to support it. I
made it very clear at the time, however, that I viewed that bill as the
end point of negotiations, not the beginning. In fact, I specifically
warned my colleagues "that the conference process must not be allowed
to dilute the safeguards in this bill." Mr. President, I meant it, but
it appears that people either weren’t listening or weren’t taking me
seriously. This conference report as slightly modified by this deal,
unfortunately, does not contain many important reforms to the Patriot
Act that we passed here in the Senate. So I cannot support it. And I
will fight it.
want to remind my colleagues of the serious problems with the Patriot
Act that we have been discussing for several years. Let me start with
Section 215, the so-called "library" provision, which has received so
much public attention. I remember when the former Attorney General of
the United States called the librarians who were expressing
disagreement with this provision "hysterical." What a revelation it was
when the Chairman of the Judiciary Committee, the Senator from
Pennsylvania, opened his questioning of the current Attorney General
during his confirmation hearing by expressing concern about this
provision of the Patriot Act. He got the Attorney General to concede
that yes, in fact, this provision probably went a bit too far and could
be improved and clarified. That was an extraordinary moment.
was a moment that was very slow in coming, and long overdue. And I give
credit to the Senator from Pennsylvania because it allowed us to start
having a real debate on the Patriot Act. But credit also has to go to
the American people who stood up, despite the dismissive and derisive
comments of government officials, and said with loud voices – the
Patriot Act needs to be changed.
voices came from the left and the right, from big cities and small
towns all across the country. So far, more than 400 state and local
government bodies have passed resolutions calling for revisions to the
Patriot Act. I plan to read some of those resolutions on the floor
during this debate. There are a lot of them. And nearly every one
mentions Section 215. Section 215 is at the center of this debate over
the Patriot Act. It is also one of the provisions that I tried
unsuccessfully to amend here on this floor in October 2001. So it makes
sense to start my discussion of the specific problems I have with the
conference report with the infamous "library" provision.
215 of the Patriot Act allows the government to obtain secret court
orders in domestic intelligence investigations to get all kinds of
business records about people, including not just library records, but
also medical records and various other types of business records. The
Patriot Act allowed the government to obtain these records as long as
they were "sought for" a terrorism investigation. That’s a very low
standard. It didn’t require that the records concern someone who was
suspected of being a terrorist or spy, or even suspected of being
connected to a terrorist or spy. It didn’t require any demonstration of
how the records would be useful in the investigation. Under Section
215, if the government simply said it wanted records for a terrorism
investigation the secret FISA court was required to issue the order –
period. To make matters worse, recipients of these orders are also
subject to an automatic gag order. They cannot tell anyone that they
have been asked for records.
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 "[t]here have been no verified civil
liberties abuses in the four 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 so
that it’s almost impossible to know if abuses have occurred.
even more importantly, the claim about lack of abuses just isn’t
credible given what we now know about how this Administration views the
surveillance laws that this body writes. We now know that for the past
four-plus years, the government has been wiretapping the international
communications of Americans inside the United States, without obtaining
the wiretap orders required by statute. You 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 that they are possibly
criminals, 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.
government should not have the kind of broad, intrusive powers in
Section 215 – not this government, not any government. And the American
people shouldn’t have to live with a poorly drafted provision that
clearly allows for the records of innocent Americans to be searched and
just hope that the government uses it with restraint. A government of
laws doesn’t require its citizens to rely on the good will and good
faith of those who have these powers – especially when adequate
safeguards can be written into the laws without compromising their
usefulness as a law enforcement tool.
lengthy and difficult negotiations, the Judiciary Committee came up
with language that achieved that goal. It would require the government
to convince a judge that a person has some connection to terrorism or
espionage before obtaining their sensitive records. And when I say some
connection, that’s what I mean. The Senate bill’s standard is the
following: (1) that the records pertain to a terrorist or spy; (2) that
the records pertain to an individual in contact with or known to a
suspected terrorist or spy; or (3) that the records are relevant to the
activities of a suspected terrorist or spy. That’s the three prong test
in the Senate bill and I think it is more than adequate to give law
enforcement the power it needs to conduct investigations, while also
protecting the rights of innocent Americans. It would not limit the
types of records that the government could obtain, and it does not go
as far to protect law-abiding Americans as I might prefer, but it would
make sure the government cannot go on fishing expeditions into the
records of innocent people.
Senate bill also would give recipients of a 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. As anyone
familiar with the Judiciary Committee knows, that’s no easy feat.
conference report did away with this delicate compromise. First, and
most importantly, it does not contain the critical modification to the
standard for Section 215 orders. The Senate bill permits the government
to obtain business records only if it can satisfy one or more prongs of
the three prong test. This is a broad standard with a lot of
flexibility. But it retains the core protection that the government
cannot go after someone who has no connection whatsoever to a terrorist
or spy or their activities.
conference report replaces the three prong test with a simple relevance
standard. It then provides a presumption of relevance if the government
meets one of the three prongs. It is silly to argue that this is
adequate protection against a fishing expedition. The only actual
requirement in the conference report is that the government show that
those records are relevant to an authorized intelligence investigation.
Relevance is a very broad standard that could arguably justify the
collection of all kinds of information about law-abiding Americans. The
three prongs now are just examples of how the government can satisfy
the relevance standard. That is not simply a loophole or an exception
that swallows the rule. The exception is the rule.
try to make this as straightforward as I can. The Senate bill requires
the government to satisfy one of three tests. Each test requires some
connection between the records and a suspected terrorist or spy. The
conference report says that the government only is required to satisfy
a new, fourth test, which is relevance, and which does not require a
connection between the records and a suspect. The other three tests no
longer provide any protections at all.
issue was perhaps the most significant reason that I and others
objected to the conference report. So how was this issue addressed by
the White House deal to get the support of some Senators? It wasn’t.
Not one change was made on the standard for obtaining Section 215
orders. 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.
significant problem with the conference report that was rejected back
in December was 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 case. This is a
serious deficiency, one that very likely violates the First Amendment.
In litigation challenging a similar permanent, automatic gag rule in a
National Security Letter statute, two courts have found First Amendment
violations because there is no individualized evaluation of the need
for secrecy. I have those decisions here. Perhaps I’ll have a chance to
read them during this debate.
this question of judicial review of the Section 215 gag order is one
issue that actually is addressed 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 can only be successful if the recipient of the Section 215
order proves that that 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. We need meaningful judicial
review of these gag orders, not just the illusion of it.
do want to acknowledge one change made by the White House deal that I
think is an improvement over the conference report. The conference
report clarifies that recipients of both Section 215 orders and
National Security Letters – which I will talk about in detail in a
moment – can consult an attorney. But it also includes a provision that
appears to require the recipients of these letters to notify the FBI if
they consult with an 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 and 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 change.
President, let me turn next to a very closely related provision that
has finally been getting the attention it deserves: National Security
Letters, or NSLs, an authority that was expanded by Sections 358 and
505 of the Patriot Act. This NSL issue has flown under the radar for
years, even though many of us have been trying to bring more public
attention to it. I’m gratified that we are finally talking about NSLs,
in large part due to a lengthy Washington Post story published last
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 really is important.
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.
can only be used to obtain certain categories of business records,
while Section 215 orders can be used to obtain "any tangible thing."
But even the categories reachable by an NSL are quite broad. 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.
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.
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.
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?
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 LA, or booked a trip to LA 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.
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
there are many other reasons why the conference report does so little
good on NSLs. Let’s talk next about judicial review. The conference
report creates the illusion of judicial review for NSLs, both for the
letters themselves and for the accompanying gag rule, but if you look
at the details, it is drafted in a way that makes that review virtually
meaningless. With regard to the NSLs themselves, the conference report
permits recipients to consult their lawyer and seek judicial review,
but it also allows the government to keep all of its submissions secret
and not share them with the challenger, regardless of whether there are
national security interests at stake. So you can challenge the order,
but you have no way of knowing what the government is telling the court
in response to your challenge. The parties could be arguing about
something as garden variety as attorney-client privilege, with no
national security issues, and the government would have the ability to
keep its submission secret. That is a serious departure from our usual
adversarial process, and it is very disturbing.
other significant problem with the judicial review provisions is the
standard for getting the gag rule overturned. In order to prevail, the
recipient has to prove that any certification by the government that
disclosure would harm national security or impair diplomatic relations
was made in bad faith. This is a standard of review that is virtually
impossible to meet. So what we have is the illusion of judicial review.
When you look behind the words in the statute, you realize it’s just a
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 of Section 215 gag orders.
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 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 "fig leaf" and expressing
disappointment that so many Senators have agreed to this deal.
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 because I supported the Senate bill, by some convoluted
theory my complaints are therefore invalid and I should support the
President, 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
the argument has been made that after supporting a compromise package
for its good parts, I am supposed to accept a conference report that
has the bad parts of the package even though the good parts have been
stripped out. That is just nonsense, and every member of this chamber
who has ever agreed to a compromise – and I must assume that includes
every single one of us – knows it.
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.
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 Mr. President. It doesn’t
pass the laugh test.
suspect, Mr. President, that the NSL power is something that the
Administration is zealously guarding because it is one area where there
is almost no judicial involvement or oversight. It is the last refuge
for those who want virtually unlimited government power in intelligence
investigations. And that is why the Congress should be very concerned,
and very insistent on making the reasonable changes we have suggested.
President, 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
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 that?"
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
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.
does the Constitution require that particular description? Well, for
one thing, that description becomes a limit on what can be searched or
what can be seized. If the magistrate approves a warrant to search
someone’s home and the police show up at the person’s business, that
search is not valid. If the warrant authorizes a search at a particular
address, and the police take it next door, they have no right to enter
that house. But of course, there is no opportunity to point out that
the warrant is inadequate unless that warrant is handed to someone at
the premises. If there is no one present to receive the warrant, and
the search must be carried out immediately, most warrants require that
they be left behind at the premises that were searched. Notice of the
search is part of the standard Fourth Amendment protection. It’s what
gives meaning, or maybe we should say "teeth," to the Constitution’s
requirement of a warrant and a particular description of the place to
be searched and the persons or items to be seized.
the years, the courts have had to deal with government claims that the
circumstances of a particular investigation require a search without
notifying the target prior to carrying out the search. In some cases,
giving notice would compromise the success of the search by leading to
the flight of the suspect or the destruction of evidence. The two
leading cases on so-called surreptitious entry, or what have come to be
known as "sneak and peek" searches, came to very similar conclusions.
Notice of criminal search warrants could be delayed, but not omitted
entirely. Both the Second Circuit in US v. Villegas and the Ninth
Circuit in US v. Freitas held that a sneak and peek warrant must
provide that notice of the search will be given within seven days,
unless extended by the court. Listen to what the Freitas court said
about such searches:
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.
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 seven days.
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.
sneak and peek power in the Patriot Act caused concern right from the
start. And not just because of the lack of a time-limited notice
requirement. The Patriot Act also broadened the justifications that the
government could give in order to obtain a sneak and peek warrant. It
included what came to be known as the "catch-all" provision, which
allows the government to avoid giving notice of a search if it would
"seriously jeopardize an investigation." Some think that that
justification in some ways swallows the requirement of notice since
most investigators would prefer not to give notice of a search and can
easily argue that giving notice will hurt the investigation.
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 seven
days, with an unlimited number of 21-day extensions if approved by the
Senate bill was a compromise. It kept the catch-all provision as a
justification for obtaining a sneak and peek warrant. Those of us who
were concerned about that provision agreed to accept it in return for
getting the seven-day notice requirement. And we accepted unlimited
extensions of up to 90 days at a time. The key thing was prompt notice
after the fact, or a court order that continuing to delay notice was
that’s the background to the numbers game that the Senator from
Pennsylvania and other supporters of the conference report point to.
They want credit for walking the House back from its outrageous
position of 180 days, but they refuse to recognize that the sneak and
peek provision still has the catch-all justification, and unlimited
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 seven days and demonstrate a need for continued secrecy?
Why insist that the government get thirty days free without getting an
extension? Could it be that they think that the courts usually won’t
agree that continued secrecy is needed after the search is conducted,
so they won’t get the 90-day extension? If they have to go back to a
court at some point, why not go back after seven days rather than 30?
From the point of view of the government, I don’t see the big deal. But
from the point of view of someone whose house has been secretly
searched, there is a big difference between one week and a month.
for example, that the government actually searched the wrong house – as
I mentioned, that’s one of the reasons that notice is a Fourth
Amendment requirement. The innocent owner of the place that had been
searched might suspect that someone had broken in, might be living in
fear that someone has a key or some other way to enter. Should we make
that person wait a month to get an explanation rather than a week?
Presumably, if the search revealed nothing, and especially if the
government realized the mistake and does not intend to apply for an
extension, it will be no hardship, other than embarrassment, for notice
to be given within seven days.
Mr. President, that is why I’m not persuaded by the numbers game. The
Senate bill was already a compromise on this very controversial
provision. And there is no good reason not to adopt the Senate’s
provision. 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 seven 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 wasn’t.
me put it to you this way: If the House had passed a provision that
allowed for notice to be delayed for 1,000 days, would anyone be
boasting about a compromise that requires notice within 100 days, more
than three months? Would that be a persuasive argument? I don’t think
so. The House provision of 180 days was arguably worse than current
law, which required notice "within a reasonable time," because it
creates a presumption that delaying notice for 180 days, six months, is
reasonable. It was a bargaining ploy. The Senate version was what the
courts had required prior to the Patriot Act. And it was itself a
compromise because it leaves in place the catch-all provision for
justifying the warrant in the first place. That is why I believe the
conference report on the sneak and peek provision is inadequate and
must be opposed. 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.
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
President, 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
four-year sunsets on three of the most controversial provisions: roving
wiretaps, the so-called "library" provision, and the "lone wolf"
provision of the Foreign Intelligence Surveillance Act. Previously, the
sunsets on these provisions were at seven years, and it is certainly an
improvement to have reduced that number so that Congress can take
another look at those provisions sooner.
also want to acknowledge that the conference report creates new
reporting requirements for some Patriot Act powers, including new
reporting on roving wiretaps, Section 215, "sneak and peek" search
warrants, and National Security Letters. There are also new
requirements that the Inspector General of the Department of Justice
conduct audits of the government’s use of National Security Letters and
Section 215. In addition, the conference report includes some other
useful oversight provisions relating to FISA. It requires that Congress
be informed about the FISA Court’s rules and procedures and about the
use of emergency authorities under FISA, and gives the Senate Judiciary
Committee access to certain FISA reporting that currently only goes to
the Intelligence Committee. I’m also glad to see that it requires the
Department of Justice to report to us on its data mining activities.
Mr. President, 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 four years is not good enough.
Simply requiring reporting on the government’s use of these overly
expansive tools does not ensure that they won’t be abused. We must make
substantive changes to the law, not just improve oversight. This is our
chance, and we cannot let it pass by.
President, trust of government 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
four years with the Act, and with the careful deliberation and debate
that, quite frankly, was missing four years ago. Well, Mr. President,
this process of reauthorization has certainly generated debate, but if
we pass the conference report, even with the few White House
modifications, we will have wasted a lot of time and missed our
opportunity to finally get it right.
American people will not be happy with us for missing that chance. They
will not accept our explanation that we decided to wait another four
years before really addressing their concerns. 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.