SAFE Act

Mr. President, I rise today to urge my colleagues to cosponsor S. 1709, the Security and Freedom Ensured Act, the SAFE Act, which Senator Larry Craig and I have introduced with several of our colleagues from both sides of the aisle.

The SAFE Act is a narrowly tailored bill that would revise several provisions of the USA PATRIOT Act. It would safeguard the rights of innocent Americans without impeding law enforcement's ability to fight terrorism. The SAFE Act is supported by a broad coalition of organizations and individuals from across the political spectrum.

I challenge any of my colleagues to find the broad base of political support for virtually any bill that we have found for the SAFE Act.

I voted for the PATRIOT Act. I believed then and I still believe that the act made many reasonable and necessary changes in the law. However, the PATRIOT Act contains several provisions that do not adequately protect innocent Americans from unwarranted Government surveillance. The FBI now has broad authority to obtain a ``John Doe'' roving wiretap which does not identify the person or place being tapped. The FBI has authority now to conduct sneak-and-peek searches and to seize personal records.

The PATRIOT Act was passed at a critical moment in the history of the United States. It was a moment of tragedy and fear. Now with more than 2 years of hindsight and experience, it is time to revisit this law.

I can recall--and I am sure all who followed this debate can remember--how we felt after September 11. Just a few steps away from this Chamber, I was meeting in a room with Senator Daschle and a group of Senators and we saw on television the images which every American has seared in their memory. Then someone suggested a bomb had gone off at the Pentagon. We gathered by the windows and looked down this beautiful Mall toward the Washington Monument and saw black smoke billowing across the Potomac, unaware at that moment another airplane had struck that building, killing many innocent Americans.

It was a time of great concern and great anxiety and great unity. The administration came to us and said to the Congress, Give us the tools to find the people responsible for this terrible American tragedy. Give us what we need to protect Americans and to fight the war on terrorism.

In a rare showing of bipartisan support, Democrats and Republicans came together and addressed some of the most difficult and complicated questions about Government authority and

individual freedom we have had to address in our history. I am proud to say in a short period of time there was a bipartisan consensus, a consensus which tried to work out the best way to meet the requirements of the administration and to make America safe.

Many of these provisions were worrisome. We were not certain whether we had gone too far in giving the Government more authority and Americans fewer freedoms than necessary. So we included in the PATRIOT Act sunset provisions. Basically, what that means is that over some period of time, a year or two, these provisions would expire and be subject to renewal and reapproval by Congress. Of course, at that point we would be forced to assess their impact.

Interestingly, since that day, from some quarters, the volume has grown in support of basically eliminating the sunset provisions and saying this will be permanent law and we will not revisit it. However, many have looked at the PATRIOT Act, including Senator Craig and myself, and feel there are four specific areas of the Act that should be amended by our SAFE Act. Senator Craig, a Republican, and myself, as a Democrat, reached across the partisan divide to work together on this bill. It is quite an unusual political marriage. Senator John Sununu, also a cosponsor, joked that when Senator Craig and Senator Durbin introduce a bill together, it proves one thing: One of them must not have read it.

Well, that is not true. We have both read the SAFE Act. Our cooperation on this piece of legislation speaks volumes about the need to make changes in the PATRIOT Act.

Some claim because we are at war, the American people want the Government to keep them safe, no matter what. I think they are wrong. The American people care very deeply about their freedoms. They are watching Congress carefully and they are concerned that perhaps in some areas we went too far in passing the PATRIOT Act. I have heard from a lot of my constituents. 275 communities in 39 states have passed resolutions expressing concern about the provisions of the PATRIOT Act. These communities represent close to 50 million Americans. Almost one out of every six Americans has, through their elected representatives in their communities, expressed some concern about the provisions of the PATRIOT Act.

Let me be very frank about the bill itself. The PATRIOT Act was over 130 pages long. It is very complicated. Most Americans have not read every word of it. Many Americans who may not be able to explain the exact details of the PATRIOT Act still are concerned it is restricting their freedoms unnecessarily.

Some argue this means we should not take the American people so seriously because they cannot cite specific sections of the bill. I disagree. There is no reason to dismiss these public concerns. And this is no excuse for inaction. The burden of proof is not on the American people when the Government seeks to take away their rights and liberties. The burden of proof is on the Government.

What is clear is the American people want us to strike a balance, give the FBI and law enforcement and intelligence agencies the powers they need to fight terrorism but also to protect American liberty. That is what the SAFE Act would do.

An unusual thing has occurred with the introduction of this bill. I have been on Capitol Hill for over two decades working in the House and in the Senate. I have never seen this happen before. The Bush administration announced with the introduction of the bill they would veto it. The bill has not been considered before a committee. It has not been subject to amendment in committee. It has not been debated in committee. It has not come to the floor of the House or the Senate, nor has it been subject to debate and amendment there. There is no final work product, only the initial offering by Senator Craig and myself.

Based on that and that alone, the Bush administration has said they are going to oppose this bill and they are going to veto this bill. I have never seen anything quite like that.

The Justice Department argues our bill would eliminate some PATRIOT Act powers and make it even more difficult to effectively fight terrorism. Frankly, these objections do not hold water. The SAFE Act neither repeals any provision of the PATRIOT Act nor amends pre-PATRIOT Act law. In fact, the SAFE Act retains the expanded powers created by the PATRIOT Act while placing important checks on these powers.

Senator Craig and I wrote a letter responding in detail to the Justice Department's objections to the bill and their threat to veto the bill, which has not even passed either the House or the Senate.

I ask unanimous consent that this letter be printed in the Record.

Mr. President, let me cut through some of the rhetoric and tell you what the SAFE Act does.

The SAFE Act would place reasonable checks on what are known as roving wiretaps. Typically, when the Government seeks a warrant authorizing a wiretap, its application must specify the individual and the phone that will be tapped. A recommendation on roving wiretaps came to us in the PATRIOT Act because of the obvious: There was a time and place in America when people had one telephone at work, one telephone at home, and if the Government sought to tap that telephone to find out what was going on, it was pretty obvious which telephone lines needed to be tapped. Now we live in a different world where people carry around phones in their pockets. People may have several phones.

So the Government asked for additional authority to focus on those who were engaged in telephone conversations on numerous different telephone lines. Roving wiretaps do not require the Government to specify the phone being tapped. They are designed to allow law enforcement to track targets that evade surveillance by frequently changing phones.

Before the PATRIOT Act, they were only permitted for criminal investigations, not intelligence investigations. The PATRIOT Act authorized the FBI to use roving wiretaps for intelligence purposes for the first time. I supported this. I thought it was a reasonable expansion of wiretap authority because it is important that intelligence investigators have that authority.

Unfortunately, the PATRIOT Act did not include the same limits on these powers that exist for criminal investigations. These limits would have protected innocent Americans from unjustified surveillance. It is a basic tenet of law that if you are going to tap a conversation, the Government has to be specific enough so as to protect innocent people. We should not allow the Government at any given time to impose a wiretap on a phone that anybody might use. The Government should be specific, protecting in the process the privacy of innocent people, while clearly targeting those with a wiretap who could be guilty of a crime or guilty of activities that are treasonous.

Under the PATRIOT Act, the FBI is not required to determine whether the target of the wiretap is physically present at the location being wiretapped before beginning the wiretap, as it is for criminal wiretaps. The ascertainment requirement, as it is known, ensures innocent Americans are not wiretapped unnecessarily, especially when the FBI wiretaps a public telephone.

The FBI is now permitted to obtain a John Doe roving wiretap for intelligence purposes, a sweeping authority never before authorized by Congress. A John Doe roving wiretap does not specify the person or the phone to be wiretapped. In other words, the FBI can obtain a wiretap without telling a court whom they want to wiretap and where they want to wiretap. This is a virtually limitless power.

The SAFE Act, which we have introduced, would continue to authorize roving wiretaps for intelligence purposes but would impose reasonable limits, the same limits that exist for criminal investigations. Law enforcement would be required to determine whether the target of the wiretap is physically present before beginning the wiretap. The FBI would not be able to obtain ``John Doe'' roving wiretaps. These protections would ensure that the Government does not wiretap innocent Americans.

Secondly, the SAFE Act would impose reasonable limits on sneak-and- peek searches. Sneak-and-peek searches are conducted secretly by the FBI with no notice to the target until some time after the search.

You have all seen the scene on television--maybe you are familiar with it from your community--where there is a knock on the door and a law enforcement official says: I have a warrant to search your home. Well, that is the usual course of events in criminal investigations. It is much different when it comes to sneak-and-peek searches.

The Justice Department argues that warrants for sneak-and-peek searches ``had been available for decades before the PATRIOT Act was passed,'' but such warrants were never authorized by Congress before the passage of the PATRIOT Act. Some courts permitted sneak-and-peek warrants in limited circumstances, although the Supreme Court has never ruled on their constitutionality.

In authorizing sneak-and-peek warrants, section 213 of the PATRIOT Act did not include checks and limitations on the power of the Government so as to protect innocent Americans. Courts have required the FBI to notify the target of the search within 7 days of the search. Section 213 of the PATRIOT Act, however, requires notice of the search only within ``a reasonable period,'' which is not defined. According to the Justice Department, this has resulted in delays of notice of up to 90 days, and of ``unspecified duration.''

Section 213 authorizes sneak-and-peek searches where a court finds that providing immediate notice of the search would have an adverse result. ``Adverse result'' is defined broadly. It includes circumstances ``seriously jeopardizing an investigation or unduly delaying a trial.'' This catch-all provision could arguably apply in almost every case.

Unlike many other PATRIOT Act provisions that give new surveillance powers to the FBI, the sneak-and-peek

authority does not sunset. It is permanent law.

According to a recent poll, 71 percent of Americans disapprove of the current sneak-and-peek provision in the PATRIOT Act. Last year, an overwhelming, bipartisan majority in the House of Representatives voted to repeal this section of the PATRIOT Act. The SAFE Act that we introduce would not go nearly that far. It would place reasonable limits on the FBI's ability to conduct sneak-and-peek searches, while still permitting broad use of this authority.

The SAFE Act would still authorize sneak-and-peek searches in a broad set of specific circumstances. However, it would eliminate the catch- all provision that allows sneak-and-peek searches in any circumstances.

The SAFE Act would require notification of a covert search within 7 days but would authorize a court to allow unlimited additional 7-day delays upon application by the Government. According to the Justice Department, ``the most common period of delay'' under section 213 is 7 days, so this limit that we establish is not unreasonable.

The SAFE Act would also sunset the sneak-and-peek authority, giving Congress an opportunity to take a hard look at a provision in the law that is so widely unpopular in the United States.

The third area has received a lot of attention, and it relates to the compelled production of library and personal records.

The SAFE Act would place reasonable limits on the FBI's authority to compel production of library and personal records. Before the PATRIOT Act, the FBI was authorized to seek a court order for the production of records from four types of businesses--common carriers, such as airlines and trains and buses; public accommodations, such as hotels and restaurants; storage facilities; and car rental companies. In order to obtain records, the FBI was required to convince a court it had reason to believe that the person to whom the records related was a terrorist or a spy.

Under section 215 of the PATRIOT Act, the FBI can compel production of ``any tangible things,'' not just records, from any entity, not just the four types of businesses previously covered. The FBI, under the PATRIOT Act, is only required to certify that the records are ``sought for'' a terrorism or intelligence investigation, a standard even lower than relevance. The FBI is not required to show that the documents relate to a suspected terrorist or spy.

Now, those who defend section 215 frequently claim the FBI must obtain court approval to compel production of records, but if you read section 215, you will see that the type of court approval which is authorized is a rubber stamp.

The PATRIOT Act gives the Government too much power to seize the personal records of innocent Americans who are not suspected of involvement in any terrorism or espionage. This could lead to broad fishing expeditions which waste scarce Government resources, are unlikely to produce useful information, and can infringe upon privacy rights.

The SAFE Act would retain the PATRIOT Act's expansion of the records provision to cover ``any tangible things,'' as I said earlier, and any entity. But it would reinstate the pre-PATRIOT Act standard for obtaining records, which requires individualized suspicion and increased judicial oversight. The FBI would be required to convince a court that it has reason to believe that the person to whom the records relate is a terrorist or a spy. This would protect innocent Americans and prevent fishing expeditions by the Government.

It is very important to note that in the more than 2 years since the passage of the PATRIOT Act, section 215--compelling records, as I have described--has never been used. If the authority has never been used during this time of great national concern and peril, it is difficult to understand how imposing some reasonable checks could harm the war on terrorism.

The fourth and last section of the SAFE Act relates to national security letters. The SAFE Act would impose reasonable limits on the issuance of these letters. An NSL, as they are known, is a document signed by an FBI agent requiring disclosure of financial, credit, or other personal information. It can be issued to a wire or electronic communication provider. The recipient of an NSL is subject to a gag order and cannot disclose the request to the individual whose records are being sought. An NSL does not require judicial or grand jury approval.

Before the PATRIOT Act, the FBI could issue such a letter to obtain records by certifying it had reason to believe that the person to whom the records relate is a terrorist or spy. The approval of FBI headquarters was required.

Section 505 of the PATRIOT Act allows the FBI to issue a national security letter by certifying that the records are ``sought for'' a terrorism or intelligence investigation, regardless of whether the target is a suspect. FBI headquarters approval is no longer required.

Unlike many other surveillance-related PATRIOT Act provisions, this expanded NSL authority does not sunset under the law of the PATRIOT Act.

The SAFE Act would retain the PATRIOT Act's lower standard for the issuance of NSLs and its delegation of issuing authority to FBI field offices.

It would simply clarify that a library is not a ``wire or communication service provider,'' which, from the plain meaning of the words, it is not. The FBI could still obtain information regarding e- mails and other communications originating from library computers by issuing a national security letter to the library's wire or communication service provider.

The SAFE Act would simply ensure that the FBI issues the national security letter to the service provider, which is the appropriate recipient, rather than a community library, which is not equipped to respond to such a request.

We would also sunset this NSL authority, giving Congress another opportunity to take a look at it.

We have the responsibility to give the Government the power it needs to keep us safe, but at the same time we have a responsibility to the Constitution, which we have all sworn to uphold and defend, to zealously protect the personal freedoms and liberties of American citizens.

Geoffrey Stone, a professor and former dean at the University of Chicago Law School, made this observation:

In time of war . . . we respond too harshly in our

restriction of civil liberties, and then, later, regret our

behavior. It is, of course, much easier to look back on past

crises and find our predecessors wanting, than it is to make

wise judgments when we ourselves are in the eye of the storm.

But that challenge now falls to us.

We must meet this challenge head on. As we reflect on the course of history, there has hardly been a time in the history of the Nation when we faced great threats to our safety and security when the Government did not overreach.

The greatest President, I think, who ever served us, Abraham Lincoln, from my State of Illinois, during the course of the Civil War, suspended the writ of habeas corpus, basically gathering into prison suspects without any charges. It was clearly in violation of the language of the Constitution. It was a power he assumed as Commander In Chief, and many have questioned it in the years that have followed.

During World War I, when there was real concern about outside threats to our country, we established the Alien and Sedition Acts, laws passed by Congress and signed by the President which, on reflection, went too far.

In World War II, we had the Japanese internment camps. We took perfectly innocent Japanese Americans, simply because of their ancestry, and put them in these settlement camps for lengthy periods of time, even while the children would leave the camps to serve in the Armed Forces.

During the cold war, a war that went on for decades and cost this Nation billions of dollars and created great anxiety, the McCarthy hearings and the questions of patriotism that were raised indicate that again we had gone entirely too far. The list continues. Sadly, it continues when we reflect on what we have done since September 11.

There is always a tension in our society between security and freedom. Those who want more security often argue that the Government needs more power and more authority, and individuals must give up those freedoms. Many of us believe that in surrendering

our freedoms, we are surrendering our heritage to the terrorists. The freedoms which were so carefully guarded and so zealously pursued by so many generations, freedoms which we have won with the lives of Americans in conflict time and time again, should be carefully guarded as well.

I hope we will understand that the burden of proof is not on individual Americans to come forward and prove to the Government they have a right to their freedoms and liberties. When the Government seeks to take away the freedom and liberty of an American citizen, it is the burden of the Government to prove that is necessary.

With the SAFE Act, Senator Craig and I have taken four very specific and discrete elements of the PATRIOT Act and we have said that by changing these, we will still keep America safe, but we will prevent intrusive Government activity into the privacy of individuals.

We can search the Constitution from the beginning to the end, through every amendment, and never see the word ``privacy'' in it, but courts have said repeatedly that that is what government should be all about-- protecting our privacy, only invading it in times when it is absolutely necessary to protect our safety in our community or our security as a Nation. The PATRIOT Act ended up being an allocation of power to the Government that went far beyond what was necessary for the security of our Nation and in fact invaded our rights and liberties.

We need to meet this challenge head on. It is possible to combat terrorism and to protect our freedoms. We can be safe and free. The SAFE Act demonstrates that. I urge my colleagues to join Senator Craig and myself as cosponsors.

I yield the floor and suggest the absence of a quorum.

October 26 will mark the second anniversary of the USA PATRIOT Act. I wish to speak today about the continuing and growing controversy surrounding that law, which was passed just 6 weeks after the September 11 terrorist attack.

I was the only Senator to vote against the PATRIOT Act. As I said during the debate in the fall of 2001, the act contained many provisions that were necessary and appropriate to help protect our Nation against terrorism. I still believe that. But I also argue that the PATRIOT Act went too far; that it threatened our citizens' constitutional rights and liberties. That is why I could not support it and why I insisted on offering amendments to the bill on the floor.

Today, 2 years later, I still believe that as well. An increasing number of Americans have agreed and have expressed their concerns that certain provisions of the PATRIOT Act threaten the rights and liberties guaranteed by our Constitution for over 200 years. The chorus of voices of doubt has grown so loud that the Bush administration has responded but not, I am sorry to say, by addressing these concerns in a constructive and open way. Rather, the administration has initiated what seems to be a public relations campaign in recent weeks to simply defend the PATRIOT Act in its entirety.

The Attorney General has gone on the road and on the Internet to extol the virtues of the law. Speaking before hand-picked audiences of law enforcement personnel, he has ridiculed and dismissed those who have raised concerns about the law. A few weeks ago he denounced ``the charges of the hysterics'' as ``castles in the air, built on misrepresentation, supported by unfounded fear, held aloft by hysteria.''

I think these words are unfortunate, and in its zeal to defend the act the administration appears unwilling to even acknowledge the legitimate concerns of many Americans; and it objects to commonsense proposals to protect privacy and civil liberties that would not in any way undermine the fight against terrorism--proposals such as my bill, the Library, Bookseller, and Personal Records Privacy Act, and Senator Craig's bill, the SAFE Act, which I also strongly support, which would protect the constitutional rights of innocent citizens, while still allowing the FBI to do its job to protect our Nation from another terrorist attack.

As Members of Congress, we have taken a solemn oath to uphold the Constitution of the United States. The President and the executive branch officials, of course, take this same oath. The burden is on the administration, which sought the powers included in the PATRIOT Act and which now seeks even more powers, to show that the current law and proposed new laws are consistent with the Constitution.

Let me take a moment to remind my colleagues how a commitment to individual rights became part of the founding principles of our Nation and enshrined as the Bill of Rights.

In 1787, in the halls of the State House of Pennsylvania in Philadelphia, GEN George Washington, who led our Nation to victory during the Revolution, convened the Constitutional Convention. A number of great political figures were delegates to that convention. Joining Washington were other distinguished Americans such as James Madison, Benjamin Franklin, Alexander Hamilton, and George Mason. Mason participated in the Convention, but he was concerned that the deliberations would result in a Constitution creating a central government with too much power over the States and individuals.

Mason, a patriotic American, who loved his newly found freedom from British rule, had reservations when he made the trip to Philadelphia. Prior to the Convention, he had written a bill of rights for the State Constitution of Virginia. He urged delegates to the Convention to include a bill of rights also in the national Constitution.

But a majority of delegates initially disagreed with Mason. When the draft of the Constitution was released, it failed to contain a bill of rights or any other explicit protection for the rights of individuals. Mason was bitterly disappointed.

Mason was concerned that, without any explicit protection for individual liberties, the Constitution would open the doors to tyranny by a central government. Why? Because our experience with British rule, in which the colonial power was able to infringe on individual rights, was still very much on his mind. So after the Constitutional Convention adjourned, Mason continued to push for a bill of rights.

During the next 2 years, as the Constitution made its way to the States for consideration and ratification, the American people came to agree with Mason, and he prevailed.

Thomas Jefferson wrote to Madison that a bill of rights was ``what the people are entitled to against every government on earth.''

Another statesman, Richard Henry Lee, who was one of the signers of the Declaration of Independence, said provisions were needed to protect ``those essential rights of mankind without which liberty cannot exist.''

Madison, who was initially opposed to including a bill of rights, was persuaded. An explicit protection for the rights of people or a bill of rights was needed in our Nation's governing document.

So, Mr. President, on September 25, 1789--almost exactly 214 years ago--the First Congress of the United States proposed 12 amendments to the Constitution. Ten of these amendments were ratified 2 years later by the legislatures of at least three-fourths of the States. The remaining two amendments relating to compensation for Members of Congress and the number of constituents per Representative were not ratified at that time.

The first 10 amendments to the Constitution, of course, are what Americans now know as the Bill of Rights. The first amendment guarantees freedom of speech, freedom of religion, and freedom of association.

The second amendment guarantees the right to bear arms.

The fourth amendment protects against unreasonable search and seizures.

The fifth amendment ensures that no person shall be deprived of life, liberty, or property without due process of law.

The sixth amendment guarantees a right to counsel and a right to trial by jury to those charged with crimes.

During the debate on our Constitution, our Nation was at a critical juncture: Do we follow a path toward a highly centralized government with the potential for tyranny or do we follow a path toward a government with checks and balances, respect for States in a Federal system, and protections of individual rights and liberties?

The decisions made in the first days of the Republic have stood the test of time. They, of course, created the greatest democracy on Earth and a governmental structure that is most protective of individual freedom and liberty in history.

Today we stand at another critical crossroads. As our Nation faces new terrorist threats, we must respond to those threats without compromising the civil liberties that are the bedrock of our country. We must balance the legitimate needs of law enforcement against the privacy and freedom of all Americans, and that is not an easy task.

One thing I know, the solution is not simply to grant the Federal Government more and more power to conduct surveillance, eavesdrop, and collect information on law-abiding Americans.

The debate about the PATRIOT Act echoes the debate over two centuries ago in the halls of the statehouse in Philadelphia. Today, as then, we must take from our experience as a nation. We must remember the critical role the Constitution and, in particular, the Bill of Rights, has had in guiding our country through national crises, war, and armed conflicts at home and abroad, including the War of 1812, the Civil War, the two World Wars, and the cold war.

The Constitution has survived and flourished throughout our history, and respect for individual freedom and privacy has steadily advanced.

In the immediate aftermath of the September 11, 2001, terrorist attacks, there was, understandably, a great desire to give the administration the tools it said it needed to fight terrorism and prevent another terrorist

attack. But with time to study and reflect after enactment of the PATRIOT Act 2 years ago, many Americans have now paused and come to see a very real potential for abuse of power and infringement of privacy and civil liberties unleashed by this law.

There is strong and growing bipartisan support for changes to the act to protect our rights and liberties. I am confident that this right- left and moderate coalition of support will continue to grow and eventually occupy the center as more and more Americans learn what the law means.

The coalition includes Americans for Tax Reform, the American Conservative Union, and the Free Congress Foundation, as well as the ACLU and the Open Society Policy Center.

At the State and local level, 3 States and over 180 cities and counties have enacted provisions and resolutions expressing concern with the PATRIOT Act. These States and communities represent over 25 million residents, and these localities are not just left-leaning college towns, such as Madison and Berkeley, but also right-leaning, libertarian regions of the country such as Flagstaff, AZ, Boise, ID, and the State of Alaska.

Here in Congress several legislative proposals have now been introduced proposing changes to the PATRIOT Act to protect privacy and civil liberties. During its consideration of the Commerce-State-Justice appropriations legislation, the House adopted an amendment by Representative Otter to restrict the FBI's use of the ``sneak and peak'' power granted by the PATRIOT Act. The Otter amendment received overwhelming support, including 113 votes from Republican Members of the House.

In the Senate, Senator Murkowski of Alaska and Senator Wyden of Oregon have introduced a bill, S. 1552, proposing to modify a number of the provisions of the PATRIOT Act. As I mentioned earlier, I have introduced the Library, Bookseller, and Personal Records Privacy Act, S. 1507, and now there is the SAFE Act, S. 1709, which I also mentioned earlier. I am pleased to join my colleagues Senators Craig, Durbin, Crapo, Sununu, Wyden, and Bingaman in supporting this bill.

The SAFE Act does not repeal the PATRIOT Act. It simply proposes reasonable modifications to four particularly troubling PATRIOT Act provisions. These modifications will help to protect civil liberties and privacy by strengthening the role of judges in approving certain kinds of search and surveillance authority expanded by the PATRIOT Act.

Specifically, the SAFE Act would strengthen the role of the courts in approving delayed notice searches, requests for access to library, medical, and other records containing sensitive personal information, and roving wiretaps in FISA cases.

These are the issues I first raised in the fall of 2001 as the main reasons why I believe the PATRIOT Act was flawed and threatened fundamental constitutional rights and protections. For me and those few of my colleagues who supported my business records and roving wiretap amendments to the PATRIOT Act, it sure was a lonely feeling in October 2001. I must say, I did not imagine at that time that reasonable minds would begin to prevail so soon. Now 2 years later, we have a strong bipartisan effort to change these provisions, and I am pleased to see that. I look forward to working with Senator Craig and my other colleagues on both sides of the aisle to get the bill passed.

I am still very troubled by the administration's response to legislative efforts, such as those I just mentioned, and to the public's outcry to repeal or modify the PATRIOT Act. The administration has launched an effort to defend the PATRIOT Act, but its defense only tells the American people half the story at best. Its PR campaign eagerly describes the new powers the PATRIOT Act gives to law enforcement, but it doesn't say anything about what the law potentially takes away from the American people: our liberty and our privacy.

Perhaps most disturbing, the administration's campaign fails to seriously address section 215, which I have long seen as the act's most troubling provision. Both my bill and the Craig bill contain the same proposal to modify this provision. Section 215 allows the FBI access to the private details of the lives of law-abiding Americans--which books we have checked out from the library, what our medical records reveal, and what charges we have made on our credit cards. Americans reasonably expect the details of their private lives, from what they read to what drugs they have been prescribed, to remain just that--private. The PATRIOT Act undermines that expectation.

Under section 215, all the FBI has to do is assert that the records are ``sought for'' an international terrorism or foreign intelligence investigation. As long as the FBI makes such an assertion--and it is just an assertion--the secret foreign intelligence court is required to issue an order allowing access to those records. The courts cannot review the merits of the subpoena request.

Both my bill and the Craig bill would simply require the FBI to set forth specific facts showing that the records sought relate to a suspected terrorist or spy. Thus, the Government could not ask, say, Amazon.com or e-Bay to turn over the records of law-abiding customers. It could, however, obtain records of those customers who are actually suspected terrorists. My bill would allow the FBI to follow up on legitimate leads by also respecting the privacy and civil liberties of law-abiding Americans.

The administration has recently asserted that the criticism of section 215 is baseless because this section has not yet been used since it was enacted. The administration says that librarians concerned about access to Americans' reading records are hysterics and have been duped by civil rights advocates and Members of Congress.

I am disappointed that the administration would use such rhetoric. No one has been duped, and the people concerned about their privacy are not in hysterics. They are simply worried, as I am, about the Government possessing a power that has the potential to intrude on their civil liberties, particularly since the statute itself prohibits a library, bookseller, or anyone else who has been served a subpoena from making that information public.

What I said before the PATRIOT Act was passed, and continue to maintain now, is that section 215 presents the potential for abuse.

I will say it again, because I cannot emphasize this enough, section 215 presents the potential for abuse. Regardless of whether the provision has not yet been used, that potential still exists, and the public has a reason to be concerned. No amount of ridicule or spin can change that.

The recent disclosure that section 215 has never been used does not address the concern that it could be used in a way that would violate the privacy of innocent Americans. But it does raise another question: If the section has never been used in the 2 years since the bill was passed, the 2 years immediately following the September 11 attacks, when concern over terrorism has been at its peak, including numerous periods of orange alert status, then whey is this provision even on the books? Or at the least, what possible objection could there be to modifying it so that the potential for abuse is eliminated?

Both my bill and the Craig bill would protect the rights of law- abiding citizens by limiting the FBI's access only to information that pertains to suspected terrorists or spies. Our legislation recognizes the legitimate uses of section 215 and would not interfere with the use of the provision to investigate and prevent terrorism.

I urge the administration to open an honest dialogue with Congress and the American people to address the PATRIOT Act's specific problems instead of continuing to try to sell it. We do not need a government that forces its authority on the people and rejects and ridicules legitimate, heartfelt, and principled criticism of its actions and its laws. That is what our Founding Fathers strived to ensure would never happen again. The Federal Government should be responsive and accountable to the people. But most importantly, the Federal Government should respect and uphold the Constitution.

Unfortunately, the administration has not only failed to engage in an honest dialogue about the PATRIOT Act, but it now proposes that Congress grant to it even more power. The American people have expressed very legitimate and sincerely-held concerns

about the PATRIOT Act. The administration should answer those concerns honestly and forthrightly before seeking more power.

The administration has announced its support for three legislative proposals to expand executive branch power and diminish the role of judges, an essential part of our Nation's system of checks and balances. One proposal grants the Attorney General significant power to compel people to testify or the production of documents, all without prior court approval. A second proposal broadens the presumption of pretrial detention to cases that may not even involve terrorism. Finally, the third proposal expands the Federal death penalty.

Criticism of the PATRIOT Act appears to have had the effect of influencing the administration's strategy to secure this new power, but not the substance of its effort. Rather than proposing a single bill with various provisions to expand the PATRIOT Act, the administration instead appears to have given its blessing to many little ``PATRIOT IIs.''

The administration is apparently reluctant to allow these proposals to be linked to the PATRIOT Act. In fact, the Justice Department has even tried to suggest that they are unrelated. No one is fooled, however, least of all the American people. The fact is that these proposals did appear in the draft ``Patriot II'' leaked earlier this year and entitled the Domestic Security Enhancement Act.

``Patriot II,'' whether contained in one bill or a series of bills, is the wrong response at the wrong time. An increasing number of Americans want to know exactly how this administration is using the powers it already has and want the PATRIOT Act to be amended to protect privacy and civil liberties.

The burden is on the administration to show Congress and the American people why current law is inadequate, why it needs even more power, and how the powers it already has and the new powers it seeks are consistent with the Constitution and Bill of Rights.

That would be the patriotic thing to do.

I yield the floor.

Mr. President, the USA PATRIOT Act, the counterterrorism bill that the Bush administration pushed through Congress after the September 11 terrorist attacks, has been the focus of much controversy in recent months. I voted for the PATRIOT Act, as did the vast majority of my colleagues in the Congress. I believed then, and I still believe, that the PATRIOT Act made many reasonable and necessary changes in the law.

For example, the PATRIOT Act tripled the number of Federal agents at the Northern border, an area that had been greatly understaffed. It allocated $100 million to upgrade technology for monitoring the Northern border. It expedited the hiring of FBI translators, who were desperately needed to translate intelligence after 9/11.

Most importantly, the PATRIOT Act updated information technology and enhanced information sharing between Federal agencies, especially the FBI and the CIA. As we learned after 9/11, the failure of these agencies to communicate with each other may have prevented law enforcement from uncovering the 9/11 plot before that terrible day.

However, the PATRIOT Act contains several controversial provisions that I and many of my colleagues believe went too far. The Bush administration placed Congress in a very difficult situation by insisting on including these provisions in the bill. We were able to amend or sunset some of the most troubling components of the bill. However, many remained in the final version. As a result, the PATRIOT Act makes it much easier for the FBI to monitor the innocent activities of American citizens with minimal or no judicial oversight. For example:

The FBI can now seize records on the books you check out of the library or the videos you rent, simply by certifying that the records are sought for a terrorism or intelligence investigation, a very low standard. A court no longer has authority to question the FBI's certification. The FBI no longer must show that the documents relate to a suspected terrorist or spy.

The FBI can conduct a ``sneak and peek'' search of your home, not notifying you of the search until after a ``reasonable period,'' a term which is not defined in the PATRIOT Act. A court is now authorized to issue a ``sneak and peek'' warrant where a court finds ``reasonable cause'' that providing immediate notice of the warrant would have an ``adverse result,'' a very broad standard. The use of ``sneak and peek'' warrants is not limited to terrorism cases.

The FBI can obtain a ``John Doe'' roving wiretap, which does not specify the target of the wiretap or the place to be wiretapped. This increases the likelihood that the conversations of innocent people wholly unrelated to an investigation will be intercepted.

Many in Congress did not want to deny law enforcement some of the reasonable reforms contained in the PATRIOT Act that they needed to combat terrorism. So, we reluctantly decided to support the administration's version of the bill, but not until we secured a commitment that they would be responsive to Congressional oversight and consult extensively with us before seeking any further changes in the law.

Unfortunately, the Justice Department has reneged on their commitment to Congress, frustrating oversight on the PATRIOT Act at every turn. Attorney General Ashcroft only rarely appears on Capitol Hill. In fact, he has only testified before the Senate Judiciary Committee, of which I am a member, once this year. He appeared, along with two other administration officials, for just half a day. The Justice Department regularly fails to answer congressional inquiries, either arguing that requested information is classified, or simply not responding at all.

At the same time, the administration's allies in Congress have argued that the PATRIOT Act's sunset clauses should be repealed before we have had an opportunity to review their effectiveness. Earlier this year, we learned that the administration had secretly drafted another sweeping counterterrorism bill, ``PATRIOT Act II,'' without consulting with Congress. This bill would grant the Justice Department even broader authority, such as the right to strip Americans of their citizenship.

That proposal generated widespread opposition, but, unchastened, the administration went on the offensive again recently. On the anniversary of the 9/11 attacks, President Bush proposed new legislation that would give the Justice Department the authority to issue so-called administrative subpoenas, without judicial review, create 15 new federal death penalty crimes, and mandate pretrial detention for defendants accused of a laundry list of crimes, many of them unrelated to terrorism. These proposals continue the Administration's pattern of seeking to limit judicial oversight and grant broad, unchecked authority to law enforcement.

While they are pushing radical changes in the law, the Bush administration has failed to take commonsense steps to prevent terrorism, like developing fully interoperable information systems and creating a consolidated terrorist watch list. Most of the information systems now within the Department of Homeland Security's jurisdiction were acquired and developed independently within the former agencies in a parochial ``stovepipe'' fashion, and may be incompatible with other DHS systems. The Bush administration indicated that an initial inventory of these systems would be completed by this spring. I understand that inventory is still not completed.

This April, the GAO concluded that nine different agencies still develop and maintain a dozen terrorist watch lists, including overlapping and different data, and inconsistent procedures and policies on information sharing. The law creating the Department of Homeland Security requires the Department to consolidate watch lists. The Bush Administration promised that these lists would be consolidated by the first day of Homeland Security's operations. Seven months later, the lists are still not consolidated.

The Bush administration has devoted too many resources to counterterrorism measures that threaten our civil liberties and do little to improve our security. For example, John Ashcroft's Justice Department has launched a number of high-profile initiatives that explicitly target immigrants, especially Arabs and Muslims, for heightened scrutiny. These efforts squander precious law enforcement resources and alienate communities whose cooperation we desperately need. They run counter to basic principles of community policing, which reject the use of racial and ethnic profiles and focus on building trust and respect by working cooperatively with community members.

The Justice Department's own Inspector General has found that the Justice Department has not adequately distinguished between terrorism suspects and other immigration detainees. The IG found that the Justice Department detained 762 aliens as a result of the September 11 investigation, exactly zero of whom were charged with terrorist-related offenses. No one is suggesting that the Department should never use immigration charges to detain a suspected terrorist, but the broad brush of terrorism should not be applied to large numbers of every out- of-status immigrants who happen to be Arab or Muslim.

Many of us in Congress have raised concerns with the Justice Department about implementation of the PATRIOT Act and other civil liberties issues, and, rather than respond to legitimate concerns, they have gone on the offensive. In testimony before the Judiciary Committee, Attorney General John Ashcroft warned his critics:

To those who scare peace-loving people with phantoms of

lost liberty; my message is this: Your tactics only aid

terrorists--for they erode our national unity and diminish

our resolve. They give ammunition to America's enemies, and

pause to America's friends. They encourage people of good

will to remain silent in the face of evil.

It is unacceptable to dismiss those who raise legitimate concerns about civil liberties as terrorist sympathizers.

For the American people, the PATRIOT Act has become a potent symbol of the Justice Department's poor record on civil liberties. In fact, three states, Alaska, Hawaii, and Vermont, and over 180 cities and counties across the country, including Chicago in my home State of Illinois, have passed resolutions opposing provisions of the PATRIOT Act.

Almost 2 years after its passage, I believe that it is time to revisit the debate about the PATRIOT Act. Let me be clear: I do not believe that we should repeal the PATRIOT Act. However, I do believe that we should amend several of its most troubling provisions. Law enforcement must have all the necessary tools to combat terrorism, but we must also be careful to protect the civil liberties of Americans. I believe we can be both safe and free.

Today, I, Senator Craig, and several of our Republican and Democratic colleagues in the Senate introduced the Security and Freedom Ensured Act of 2003. The SAFE Act is a narrowly-tailored bipartisan bill that would amend the most problematic provisions of the PATRIOT Act, those that grant broad powers to the FBI to monitor Americans with inadequate judicial oversight. The bill would impose reasonable limits on law enforcement's authority without impeding their ability to investigate and prevent terrorism. It would not amend pre-PATRIOT Act law in anyway. The SAFE Act is supported by a broad coalition from across the political spectrum, including the American Civil Liberties Union and the American Conservative Union.

The SAFE Act would:

Reinstate the pre-PATRIOT Act standard for seizing business records. In order to obtain a subpoena, the FBI would have to demonstrate that it has reason to believe that the person to whom the records relate is a suspected terrorist or spy. The SAFE Act retains the expansion of the business record provision to include all business records, including library records, rather than just the four types of records--hotel, car rental, storage facility and common carrier--covered before the PATRIOT Act.

Authorize a court to issue a delayed notification warrant where notice of the warrant would endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant. It would require notification of a covert search within seven days, rather than an undefined ``reasonable period.'' It would authorize unlimited additional 7-day delays if the court found that notice of the warrant would continue to endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant.

Limit ``John Doe'' roving wiretaps by requiring the warrant to identify either the target of the wiretap or the place to be wiretapped. To protect innocent people from Government surveillance, it would also require that surveillance be conducted only when the suspect is present at the place to be wiretapped.

Sunset several of the PATRIOT Act's most controversial surveillance provisions on December 31, 2005. Many of PATRIOT's surveillance provisions already sunset on December 31, 2005. The SAFE Act would simply give Congress an opportunity to assess the effectiveness of several additional controversial provisions before deciding whether to reauthorize them.

Under the SAFE Act, the FBI would still have broad authority to combat terrorism. For example, consider the following hypotheticals:

The FBI would like to search the travel records of a suspected terrorist to help determine if he attended a meeting with other extremists. The FBI has reason to believe the records are related to a suspected terrorist, so the SAFE Act would authorize the issuance of a subpoena.

The FBI suspects that an individual affiliated with an extremist organization is planning a terrorist attack. The FBI would like to search the suspect's computer drive to learn more about the plot without tipping off the suspect and his co-conspirators. The SAFE Act would permit the issuance of a ``sneak and peek'' warrant, and permit the FBI to delay notice of the warrant for as long as it would continue to endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant.

At the same time, the SAFE Act would protect innocent Americans from unchecked Government surveillance. For example:

The FBI is investigating suspected members of a terrorist cell and would like to subpoena the records of a library and a bookstore that they frequent. Currently, the FBI could subpoena all of the records of the library and bookstore, including the records of countless innocent Americans, by certifying they are sought for a terrorism investigation, the exceedingly low standard created by the PATRIOT Act. The SAFE Act would permit the FBI to obtain the records related to the suspected terrorists, but not records related to innocent Americans who are not suspected terrorists.

The FBI is tracking a suspected terrorist who is using public phones at local restaurants to do business. The PATRIOT Act would permit the issuance of a roving wiretap that would apply to any phone the suspect uses. Under the PATRIOT Act, the FBI could monitor the conversations not just of the suspect, but of innocent patrons of these restaurants. The SAFE Act would also permit the issuance of a roving wiretap that would apply to any phone the suspect uses, but would only permit the FBI to gather intelligence when they ascertain that the suspect is using a phone.

The Justice Department has argued that amending the PATRIOT Act would handcuff law enforcement and make it very difficult to combat terrorism. Nothing could be further from the truth. It is possible to combat terrorism and protect our liberties. The SAFE Act demonstrates that. I urge my colleagues to support it.

Mr. President, the USA PATRIOT Act, the counterterrorism bill that the Bush administration pushed through Congress after the September 11 terrorist attacks, has been the focus of much controversy in recent months. I voted for the PATRIOT Act, as did the vast majority of my colleagues in the Congress. I believed then, and I still believe, that the PATRIOT Act made many reasonable and necessary changes in the law.

For example, the PATRIOT Act tripled the number of Federal agents at the Northern border, an area that had been greatly understaffed. It allocated $100 million to upgrade technology for monitoring the Northern border. It expedited the hiring of FBI translators, who were desperately needed to translate intelligence after 9/11.

Most importantly, the PATRIOT Act updated information technology and enhanced information sharing between Federal agencies, especially the FBI and the CIA. As we learned after 9/11, the failure of these agencies to communicate with each other may have prevented law enforcement from uncovering the 9/11 plot before that terrible day.

However, the PATRIOT Act contains several controversial provisions that I and many of my colleagues believe went too far. The Bush administration placed Congress in a very difficult situation by insisting on including these provisions in the bill. We were able to amend or sunset some of the most troubling components of the bill. However, many remained in the final version. As a result, the PATRIOT Act makes it much easier for the FBI to monitor the innocent activities of American citizens with minimal or no judicial oversight. For example:

The FBI can now seize records on the books you check out of the library or the videos you rent, simply by certifying that the records are sought for a terrorism or intelligence investigation, a very low standard. A court no longer has authority to question the FBI's certification. The FBI no longer must show that the documents relate to a suspected terrorist or spy.

The FBI can conduct a ``sneak and peek'' search of your home, not notifying you of the search until after a ``reasonable period,'' a term which is not defined in the PATRIOT Act. A court is now authorized to issue a ``sneak and peek'' warrant where a court finds ``reasonable cause'' that providing immediate notice of the warrant would have an ``adverse result,'' a very broad standard. The use of ``sneak and peek'' warrants is not limited to terrorism cases.

The FBI can obtain a ``John Doe'' roving wiretap, which does not specify the target of the wiretap or the place to be wiretapped. This increases the likelihood that the conversations of innocent people wholly unrelated to an investigation will be intercepted.

Many in Congress did not want to deny law enforcement some of the reasonable reforms contained in the PATRIOT Act that they needed to combat terrorism. So, we reluctantly decided to support the administration's version of the bill, but not until we secured a commitment that they would be responsive to Congressional oversight and consult extensively with us before seeking any further changes in the law.

Unfortunately, the Justice Department has reneged on their commitment to Congress, frustrating oversight on the PATRIOT Act at every turn. Attorney General Ashcroft only rarely appears on Capitol Hill. In fact, he has only testified before the Senate Judiciary Committee, of which I am a member, once this year. He appeared, along with two other administration officials, for just half a day. The Justice Department regularly fails to answer congressional inquiries, either arguing that requested information is classified, or simply not responding at all.

At the same time, the administration's allies in Congress have argued that the PATRIOT Act's sunset clauses should be repealed before we have had an opportunity to review their effectiveness. Earlier this year, we learned that the administration had secretly drafted another sweeping counterterrorism bill, ``PATRIOT Act II,'' without consulting with Congress. This bill would grant the Justice Department even broader authority, such as the right to strip Americans of their citizenship.

That proposal generated widespread opposition, but, unchastened, the administration went on the offensive again recently. On the anniversary of the 9/11 attacks, President Bush proposed new legislation that would give the Justice Department the authority to issue so-called administrative subpoenas, without judicial review, create 15 new federal death penalty crimes, and mandate pretrial detention for defendants accused of a laundry list of crimes, many of them unrelated to terrorism. These proposals continue the Administration's pattern of seeking to limit judicial oversight and grant broad, unchecked authority to law enforcement.

While they are pushing radical changes in the law, the Bush administration has failed to take commonsense steps to prevent terrorism, like developing fully interoperable information systems and creating a consolidated terrorist watch list. Most of the information systems now within the Department of Homeland Security's jurisdiction were acquired and developed independently within the former agencies in a parochial ``stovepipe'' fashion, and may be incompatible with other DHS systems. The Bush administration indicated that an initial inventory of these systems would be completed by this spring. I understand that inventory is still not completed.

This April, the GAO concluded that nine different agencies still develop and maintain a dozen terrorist watch lists, including overlapping and different data, and inconsistent procedures and policies on information sharing. The law creating the Department of Homeland Security requires the Department to consolidate watch lists. The Bush Administration promised that these lists would be consolidated by the first day of Homeland Security's operations. Seven months later, the lists are still not consolidated.

The Bush administration has devoted too many resources to counterterrorism measures that threaten our civil liberties and do little to improve our security. For example, John Ashcroft's Justice Department has launched a number of high-profile initiatives that explicitly target immigrants, especially Arabs and Muslims, for heightened scrutiny. These efforts squander precious law enforcement resources and alienate communities whose cooperation we desperately need. They run counter to basic principles of community policing, which reject the use of racial and ethnic profiles and focus on building trust and respect by working cooperatively with community members.

The Justice Department's own Inspector General has found that the Justice Department has not adequately distinguished between terrorism suspects and other immigration detainees. The IG found that the Justice Department detained 762 aliens as a result of the September 11 investigation, exactly zero of whom were charged with terrorist-related offenses. No one is suggesting that the Department should never use immigration charges to detain a suspected terrorist, but the broad brush of terrorism should not be applied to large numbers of every out- of-status immigrants who happen to be Arab or Muslim.

Many of us in Congress have raised concerns with the Justice Department about implementation of the PATRIOT Act and other civil liberties issues, and, rather than respond to legitimate concerns, they have gone on the offensive. In testimony before the Judiciary Committee, Attorney General John Ashcroft warned his critics:

To those who scare peace-loving people with phantoms of

lost liberty; my message is this: Your tactics only aid

terrorists--for they erode our national unity and diminish

our resolve. They give ammunition to America's enemies, and

pause to America's friends. They encourage people of good

will to remain silent in the face of evil.

It is unacceptable to dismiss those who raise legitimate concerns about civil liberties as terrorist sympathizers.

For the American people, the PATRIOT Act has become a potent symbol of the Justice Department's poor record on civil liberties. In fact, three states, Alaska, Hawaii, and Vermont, and over 180 cities and counties across the country, including Chicago in my home State of Illinois, have passed resolutions opposing provisions of the PATRIOT Act.

Almost 2 years after its passage, I believe that it is time to revisit the debate about the PATRIOT Act. Let me be clear: I do not believe that we should repeal the PATRIOT Act. However, I do believe that we should amend several of its most troubling provisions. Law enforcement must have all the necessary tools to combat terrorism, but we must also be careful to protect the civil liberties of Americans. I believe we can be both safe and free.

Today, I, Senator Craig, and several of our Republican and Democratic colleagues in the Senate introduced the Security and Freedom Ensured Act of 2003. The SAFE Act is a narrowly-tailored bipartisan bill that would amend the most problematic provisions of the PATRIOT Act, those that grant broad powers to the FBI to monitor Americans with inadequate judicial oversight. The bill would impose reasonable limits on law enforcement's authority without impeding their ability to investigate and prevent terrorism. It would not amend pre-PATRIOT Act law in anyway. The SAFE Act is supported by a broad coalition from across the political spectrum, including the American Civil Liberties Union and the American Conservative Union.

The SAFE Act would:

Reinstate the pre-PATRIOT Act standard for seizing business records. In order to obtain a subpoena, the FBI would have to demonstrate that it has reason to believe that the person to whom the records relate is a suspected terrorist or spy. The SAFE Act retains the expansion of the business record provision to include all business records, including library records, rather than just the four types of records--hotel, car rental, storage facility and common carrier--covered before the PATRIOT Act.

Authorize a court to issue a delayed notification warrant where notice of the warrant would endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant. It would require notification of a covert search within seven days, rather than an undefined ``reasonable period.'' It would authorize unlimited additional 7-day delays if the court found that notice of the warrant would continue to endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant.

Limit ``John Doe'' roving wiretaps by requiring the warrant to identify either the target of the wiretap or the place to be wiretapped. To protect innocent people from Government surveillance, it would also require that surveillance be conducted only when the suspect is present at the place to be wiretapped.

Sunset several of the PATRIOT Act's most controversial surveillance provisions on December 31, 2005. Many of PATRIOT's surveillance provisions already sunset on December 31, 2005. The SAFE Act would simply give Congress an opportunity to assess the effectiveness of several additional controversial provisions before deciding whether to reauthorize them.

Under the SAFE Act, the FBI would still have broad authority to combat terrorism. For example, consider the following hypotheticals:

The FBI would like to search the travel records of a suspected terrorist to help determine if he attended a meeting with other extremists. The FBI has reason to believe the records are related to a suspected terrorist, so the SAFE Act would authorize the issuance of a subpoena.

The FBI suspects that an individual affiliated with an extremist organization is planning a terrorist attack. The FBI would like to search the suspect's computer drive to learn more about the plot without tipping off the suspect and his co-conspirators. The SAFE Act would permit the issuance of a ``sneak and peek'' warrant, and permit the FBI to delay notice of the warrant for as long as it would continue to endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant.

At the same time, the SAFE Act would protect innocent Americans from unchecked Government surveillance. For example:

The FBI is investigating suspected members of a terrorist cell and would like to subpoena the records of a library and a bookstore that they frequent. Currently, the FBI could subpoena all of the records of the library and bookstore, including the records of countless innocent Americans, by certifying they are sought for a terrorism investigation, the exceedingly low standard created by the PATRIOT Act. The SAFE Act would permit the FBI to obtain the records related to the suspected terrorists, but not records related to innocent Americans who are not suspected terrorists.

The FBI is tracking a suspected terrorist who is using public phones at local restaurants to do business. The PATRIOT Act would permit the issuance of a roving wiretap that would apply to any phone the suspect uses. Under the PATRIOT Act, the FBI could monitor the conversations not just of the suspect, but of innocent patrons of these restaurants. The SAFE Act would also permit the issuance of a roving wiretap that would apply to any phone the suspect uses, but would only permit the FBI to gather intelligence when they ascertain that the suspect is using a phone.

The Justice Department has argued that amending the PATRIOT Act would handcuff law enforcement and make it very difficult to combat terrorism. Nothing could be further from the truth. It is possible to combat terrorism and protect our liberties. The SAFE Act demonstrates that. I urge my colleagues to support it.

Mr. President, I rise today to support the Jumpstart Our Business Strength Act, a bill that provides much-needed tax relief to our Nation's manufacturing base in a manner that will not only protect but will create jobs. Without question, passing this bipartisan legislation will provide a major boost to the manufacturing sector of our economy.

Indeed, this legislation is necessary because our country's manufacturers are in desperate need of help. Not only has America been hard hit by slow worldwide growth, but also has sustained significant job losses during the last few years.

Although the economic statistics for March are a positive improvement, there remains cause for concern when one considers the profound erosion of U.S. manufacturing jobs in recent years. The damage this sector has sustained is nothing short of stunning. From July 2000 through July 2003, nearly 2.8 million U.S. manufacturing jobs were eliminated. Incredibly, New England lost more than 214,000 manufacturing jobs in the decade between June 1993 and June 2003.

According to the National Association of Manufacturers, between January 2001 through January 2004, manufacturing employment in our Nation declined by 16 percent. In New England, there was a 20 percent decrease in manufacturing employment during that same time period. This means that between January 2001 and January 2004, New England's manufacturing sector employment declined by an alarming 28 percent faster rate than it did nationally.

My home State of Maine has been shedding manufacturing jobs at an alarming rate over the past decade--and all the more so in the past two years. From January 1993 through June 2003, a 10\1/2\ year period, Maine lost 18,900 manufacturing jobs. More specifically, from July 2000 to June 2003, Maine has lost 17,300 manufacturing jobs--the highest loss of any State during that time period.

In addition to passing this legislation to reverse these trends, we are also here to replace the Foreign Sales Corporation/Extraterritorial Income, FSC/ETI, rules. Congress enacted these rules to make U.S. exporters more competitive overseas by reducing their maximum income tax rate on export income from 35 percent to about 29.75 percent. This incentive is necessary to offset the disadvantage that U.S. exporters face vis-a-vis foreign competitors who benefit from a territorial tax regime. Nevertheless, the World Trade Organization, WTO, determined that the FSC/ETI rules provide an impermissible export subsidy, meaning Congress must repeal those rules or face over $4 billion in trade sanctions. Those sanctions began to take effect March 1.

At the same time, repealing these rules will result in a nearly $50 billion tax increase on the manufacturing sector over the next ten years. Consequently, we need to replace the FSC/ETI regime with an appropriate substitute that not only complies with WTO rules but, more importantly, protects our own manufacturing base.

Our objectives should therefore be clear: not only must we pass legislation to comply with international trade law, but more importantly, we need to offer our country's manufacturers with a solution that will jumpstart their production and create jobs, and we must do so right now. Were we to neglect this duty to ensure that our nation's manufacturers are simply given the chance to compete on a level playing field with foreign competitors, we would only be compounding the current situation--a

result with which I am sure very few persons, particularly those workers who have lost their jobs would be pleased.

Our task, then, is to identify the best way to ``reallocate'' the $50 billion in revenues that replacing the FSC/ETI rules will generate and ensure that those funds continue to benefit their original beneficiary--namely our manufacturers. For that reason, I am pleased that the main component of this bill provides direct tax relief to the manufacturing sector of our economy. By permitting manufacturers to exclude from tax a portion of their income earned directly from manufacturing operations that employ U.S. workers and are located in the United States, we will continue to ensure that our Nation's manufacturers are on a level playing field with foreign competitors, and we will accelerate the overall economic recovery that is so desperately needed and that is already underway.

This legislation, therefore, provides poignant, targeted tax relief directly into the sector of our nation's economy that needs it most. In short, this income tax rate reduction for manufacturers will reduce their cost of doing business and increase their ability to compete in a global economy. Consequently, these businesses will be able to reinvest this savings directly into their operations, thereby increasing productivity and creating jobs.

To achieve these results, it is essential that this tax relief must be available for all manufacturers--regardless of entity classification. As such, I along with several Senators worked hard during the Finance Committee's markup to insist that this bill apply to small businesses that operate in the form of S-corporations, partnerships, limited liability companies, and sole-proprietorships. With small business manufacturers constituting over 98 percent of our Nation's manufacturing enterprises, employing 12 million people, and supplying more than 50 percent of the value-added during U.S. manufacturing, it is imperative that we not turn our backs on these hard working taxpayers.

Despite the significance that small businesses play in our country's economy, and despite the fact that not every manufacturer operates as a corporation, some contend that in place of this bill's targeted manufacturing relief, a more appropriate course of action would be to provide an across-the-board 2 percent tax cut for all domestic corporations--regardless if they are manufacturers.

I find this alternative problematic for two reasons. First, this proposition forgets the reason why we are here in the first place-- namely to reallocate tax cuts that Congress provided specifically for domestic manufacturers in an effort to maintain their international competitiveness. Doesn't it make sense to ensure that all manufacturers, which are the primary beneficiaries of the FSC/ETI rules, continue to be the primary beneficiary of its replacement legislation, particularly when the manufacturing sector of our economy is already struggling to compete and preserve jobs?

After all, the main goal of this bill is to increase the competitiveness of our manufacturing base and stop the current job loss trend, meaning legislation that is not necessarily focused exclusively on manufacturing sector might fall short of this goal. Rather, the focus must remain on promoting domestic job creation, and the legislation before us accomplishes this task much more effectively than would an across-the-board tax cut that is exclusive to corporations.

In addition, an across-the-board corporate rate cut limits this tax relief to only corporations--something that is simply unacceptable as small businesses, many of which are S-corporations, limited liability companies, partnerships, and sole-proprietorships, are the true engine that drives this economy and are responsible for a majority of domestic job creation. Indeed, small businesses account for 97.5 percent of Maine businesses . . . 98 percent of America's manufacturing enterprise . . . and contribute three-quarters of all new jobs nationwide. It is therefore imperative that this legislation, which is intended to ``Jumpstart Our Business Strength,'' include all manufacturers, particularly all small businesses, so that we continue this upward trend and reinvigorate America's entrepreneurial spirit.

Along those lines, I am also pleased that Chairman Grassley incorporated several other of my provisions during the Finance Committee's markup of this bill. For example, current law permits small businesses to expense, rather than depreciate, up to $100,000 spent on equipment used in their trade or business. While this provision encourages capital investments and stimulates economic growth, the current phase-out limits the number of small businesses that can qualify.

My provision already in this bill increases the phase out threshold-- thereby increasing the number of eligible small businesses for this much-needed tax relief. In turn, these taxpayers will be provided with greater incentive to expand their operations that will not only increase productivity but ultimately create jobs.

Another one of my provisions included in this legislation is based on my bill S. 885--The Small Business Investment Company Capital Access Act of 2003. In short, this bill provides that certain government- guaranteed debt capital of Debenture Small Business Investment Companies, SBICs, is excluded from the definition of ``debt'' for purposes of the unrelated businesses taxable income rules.

This change is necessary because under current law, potential tax- exempt investors such as pension funds and universities are dissuaded from investing in small businesses due to the tax liability that would result from the SBICs. By eliminating this problem and expanding the capital available for SBICs to invest in the nation's small businesses at the modest rate of $1 million per year, this provision has the potential to result in $500-$600 million of new capital investments in SBICs, which in turn will create thousands of jobs each year.

Furthermore, this bill includes specific provisions at my urging that will benefit greatly many taxpayers in my home State of Maine. In committee, I worked to ensure that the tax relief in this bill was extended to ``unprocessed softwood timber.'' The Softwood Lumber industry, like paper and steel, has faced unfair trade from countries that subsidize their products and dump them on the U.S. market. For that reason, combined with the fact that this legislation is intended to benefit manufacturers in general and not only exporters, it is essential that this legislation extend this tax relief to the timber industry.

Similarly, I urged Chairman Grassley to include a provision in this legislation that would classify gains resulting from the sale or exchange of timber as capital rather than ordinary. The crux of this provision is to change the way in which capital gains are calculated for timber by taking the amount of gain and subtracting three percent for each year the timber was held. This change is necessary because although individuals pay a maximum capital gains rate of 15 percent, corporations must still pay a 35 percent rate. As such, this change will reduce the rate of tax for corporations that sell timber, therefore making the U.S. forest products industry more competitive internationally and preserving domestic jobs.

In addition to these provisions that already are included in the bill, I am working with Chairman Grassley on an amendment that I have filed that will not only spur economic growth but that will also go a long way in bolstering our national security. Currently, navy shipbuilders are treated unfairly by the tax code because they are required to pay tax based on an expected percentage of their profits. This treatment is problematic because oftentimes, they do not receive payment for several years, meaning the income tax has an overly burdensome effect on their cash flow and their overall production.

My amendment would change this treatment by placing navy shipbuilders on equal treatment with commercial shipbuilders in allowing them to pay 40 percent of their estimated income tax during the contract and the remaining 60 percent upon completion of the contract so long as the contract does not exceed 8 years. Importantly, this amendment does not in any way affect the amount of tax that navy shipbuilders will pay; rather, it simply affords a more equitable payment schedule to allow these taxpayers to satisfy

more of their tax obligation at a time in which they have cash in hand. I hope that in working with the chairman, we will find a way to address this unfair disparity that is harming our Nation's naval shipbuilders.

Accordingly, I believe that the bill before us strikes the proper balance of providing needed tax relief to the taxpayers in our economy who need it most. It has taken a great deal of work to get us where we are today, yet I firmly believe that providing targeted, affordable tax relief to the manufacturing sector of our economy is certainly the right path to choose in repealing the FSC/ETI rules.

The key here is that this bill simply reallocates the revenue that repealing the FSC/ETI rules will raise and distributes it directly to the primary beneficiaries of those rules--our country's manufacturers, which is indeed appropriate as the manufacturing base is in dire need of help.

While the legislation also simplifies the international tax code and contains other miscellaneous tax cuts designed to create jobs, it does so without increasing the federal budget deficit because it contains tax offsets that will thwart taxpayers' participation in illegal tax shelters and abusive leasing transactions. Consequently, unlike previous tax bills, this legislation is revenue neutral. Therefore, not only is this bill affordable, but it is much needed in order to bolster our manufacturing base and enhance the competitiveness of the U.S. based businesses.

Thank you, Mr. President.

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