USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006

Mr. President, I suggest the absence of a quorum.

Mr. President, reserving the right to object.

Mr. President, I object to raising the quorum call.

Mr. President, I ask unanimous--I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that I be recognized to speak at 11 a.m. on the motion to proceed.

Mr. President, it will come as no surprise that I would like to talk about the PATRIOT Act today, and certainly I listened to the remarks of the Senator from New Hampshire and have greatly enjoyed the experience of working with him on this issue for the last couple of years.

I, of course, come to a very different conclusion about the matters before us. I strongly oppose proceeding to the consideration of S. 2271, which is legislation introduced by some of my friends and colleagues to implement the deal on the PATRIOT Act that was struck by the White House last week.

Some may argue that there is no harm in passing a bill that could charitably be described as trivial. But protecting the rights of law- abiding Americans is not trivial, and passage of S. 2271 is the first step toward passage of the flawed PATRIOT Act conference report.

I will oppose both measures, and I am prepared to discuss at length my reasons for doing so. I do greatly respect the Senators who negotiated this deal, but I am gravely disappointed in the outcome. The White House would agree to only a few very minor changes to the same PATRIOT Act conference report that could not get through the Senate just back in this past December. These changes do not address the major problems with the PATRIOT Act that the bipartisan coalition has been trying to fix for the past several years.

In fact, the Senator from New Hampshire described the issues that brought us together, the points that brought us together. This agreement doesn't relate, in any significant way, to the provisions that we were concerned about that brought us together in a bipartisan way.

What came out of this agreement is, quite frankly, a figleaf to allow those who were fighting hard to improve the act to step down, claim victory, and move on. What a hollow victory that would be and what a complete reversal of the strong, bipartisan consensus that we saw in this body a couple months ago.

What we are seeing, I regret to say, is quite simply a capitulation on the intransigent and misleading rhetoric of the White House that sees any effort to protect civil liberties as a sign of weakness. Protecting American values is not weakness. Standing on principle is not weakness. Committing to fight terrorism aggressively without compromising the rights and freedoms this country was founded upon is not weakness either.

We have come too far and fought too hard to agree to reauthorize the PATRIOT Act without fixing any of the major problems with the act. A few insignificant face-saving changes don't cut it. So I cannot support this deal. I strongly oppose proceeding to legislation that would implement it.

I understand the pressure my colleagues have been under on this issue, and I again want to say I appreciate all the hard work they have done on the PATRIOT Act. It has been very gratifying to work on a bipartisan basis on this issue. It is unfortunate the White House is so obviously trying to make this into a partisan issue because it sees some political advantage in doing so. But whether the White House likes it, this will continue to be an issue where both Democrats and Republicans have concerns, and we will continue to work together for changes in the law. I am sure of that. But I will also continue to strongly oppose any reauthorization of the PATRIOT Act that doesn't protect the rights and freedoms of law-abiding Americans who have absolutely no connection whatsoever to terrorism.

This deal does not meet that standard. Frankly, Mr. President, it doesn't even come close. I urge my colleagues to oppose it and I, therefore, ask that they oppose even proceeding to this legislation.

I wanted to take some time to lay out the background and context for this ongoing debate over the PATRIOT Act, a debate that will not end with the reauthorization of the 16 provisions that are now set to expire March 10. And I want to discuss my concerns about this reauthorization deal with some specificity.

Mr. President, because I was the only Senator to vote against the PATRIOT Act in 2001, I want to be very clear from the start. I am not opposed to reauthorization of the PATRIOT Act. I supported the bipartisan compromise, the reauthorization bill the Senate passed last July without a single Senator objecting. I believe that bill should become law.

The Senate reauthorization bill is not a perfect bill, but it is actually a good bill. If that were the bill we considered back in December or the bill we were considering today, I would be speaking in support of it. In fact, we could have completed the process of reauthorizing the PATRIOT Act months ago if the House had taken up the bill that the Senate approved without any objection from any Senator on either side of the aisle.

I also want to respond to those who argue that any people who are continuing to call for a better reauthorization package want to let the PATRIOT Act expire. That is nonsense. Not a single Member of this body is calling for any provision--not only that the bill should not be reauthorized, but no Senator is calling for even one provision at all to actually expire. There are any number of ways we can reauthorize the act, while amending its most problematic provisions, and I am not prepared to support reauthorization without adequate reform.

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

Let me quickly read excerpts from a letter that we sent out explaining our concerns:

The draft conference report would allow the Government to

obtain sensitive personal information on a mere showing of

relevance. This would allow Government fishing expeditions.

As business groups like the U.S. Chamber of Commerce have

argued, the Government should be required to convince a judge

that the records they are seeking have some connection to a

suspected terrorist or spy.

The draft conference report does not permit the recipient

of a section 215 order to challenge its automatic, permanent

gag order. Courts have held that similar restrictions violate

the First Amendment. The recipient of a section 215 order is

entitled to meaningful judicial review of the gag order.

The draft conference report doesn't provide meaningful

judicial review of a national security letter's gag order. It

requires the court to accept as conclusive the Government's

assertion that a gag order should not be lifted, unless the

court determines the

Government is acting in bad faith. The recipients of NSLs are

entitled to meaningful judicial review of a gag order.

The draft conference report does not sunset the NSL

authority. In light of recent revelations about possible

abuses of NSLs, the NSL provision should sunset in no more

than four years so that Congress will have an opportunity to

review the use of this power.

The draft conference report requires the Government to

notify the target of a ``sneak and peek'' search no earlier

than 30 days after the search, rather than within seven days,

as the Senate bill provides and as pre-PATRIOT Act judicial

decisions required. The conference report should include a

presumption that notice will be provided within a

significantly shorter period in order to better protect

Fourth Amendment rights. The availability of additional 90-

day extensions means that a shorter initial timeframe should

not be a hardship on the Government.

Those are the key parts of the letter that we sent late last year. Now, you might ask, in this newly announced deal on the PATRIOT Act, have any of these problems been solved? Have any of the five problems identified by the SAFE Act authors been solved?

The answer is simple, Mr. President. The answer is: No, not a single one. Only one of these issues has been even partially addressed by this deal. The White House applied immense pressure and pulled out its usual scare tactics and succeeded in somehow convincing people to accept a deal that makes only a tiny substantive improvement to a bill that was actually rejected in December. This is simply not acceptable.

I want to explain in detail my biggest concerns with the conference report, as modified by S. 2271, the legislation that the majority leader is seeking to take up. First, I want to clear up one frequent misconception. I have never advocated repeal of any portion of the PATRIOT Act. In fact, as I have said repeatedly over the past 4 years, I supported most of that bill. There were many good provisions in that bill. As my colleagues know, the PATRIOT Act did a lot more than expand our surveillance laws. Among other things, it set up a national network to prevent and detect electronic crimes, such as the sabotage of the Nation's financial sector; it established a counterterrorism fund to allow the Justice Department offices, disabled in terrorist attacks, to keep operating; and it changed the money laundering laws to make them more useful in disrupting the financing of terrorist organizations. One section even condemned discrimination against Arab and Muslim Americans.

Even some of the act's surveillance sections were reasonable. One provision authorized the FBI to expedite the hiring of translators. Another added terrorism and computer crimes to the list of crimes for which criminal wiretap orders could be sought. And some provisions helped to bring down what has been called frequently ``the wall''--the wall that had been built up between intelligence and law enforcement agencies.

Whenever we start debating the PATRIOT Act, we hear a lot of people saying we must reauthorize the PATRIOT Act in order to ensure that the wall doesn't go back up. So let me make it clear. I supported the information-sharing provisions of the PATRIOT Act. One of the key lessons we learned in the wake of September 11 was that our intelligence and law enforcement agencies were not sharing information with each other, even where the statutes permitted it.

Unfortunately, the wall was not so much a legal problem as it was a problem of culture. That is not just my conclusion. The report of the 9/11 Commission made that very clear. I am sorry to report we have not made as much progress as we should have in bringing down those very significant cultural barriers to information sharing among our agencies. The 9/11 Commission report card that was issued toward the end of last year gave the Government a ``D'' for information sharing because our agencies' cultures have not changed enough. A statement issued by Chairman Kean and Vice Chairman Hamilton explained, ``You can change the law, you can change the technology, but you still need to change the culture. You still need to motivate institutions and individuals to share information.'' And so far, apparently, our Government has not met that challenge.

Talking about the importance of information sharing, as administration officials and other supporters of the conference report have done repeatedly, is part of a pattern that started several years ago on this issue of renewing or revising the PATRIOT Act. Rather than engage in a true debate on the controversial parts of the PATRIOT Act, as some in this body have done--to their credit--during this reauthorization process, many proponents of the PATRIOT Act point to the noncontroversial provisions of the act and talk about how important they are. They say this bill must be passed because it reauthorizes those noncontroversial provisions. But, that doesn't advance the debate; it muddies the waters because we all agree that those provisions should be continued.

The point is we don't have to accept bad provisions to make sure the good provisions become law, or continue to be law.

I hope I actually advance the debate. I want to spend some time explaining my specific concerns with the conference report and the deal that was struck to make a few minor changes to it. It is unfortunate the whole Congress could not come together, as the Senate did around the Senate's bipartisan compromise reauthorization bill. In July, the Senate Judiciary Committee voted unanimously in favor of a reauthorization bill that made meaningful changes to the most controversial provisions of the PATRIOT Act to protect the rights and freedoms of innocent Americans.

Shortly thereafter, that bill passed the full Senate by unanimous consent. It was not entirely easy for me to support the Senate bill, which fell short of the improvements contained in the bipartisan SAFE Act. But at the end of the day, the Senate bill actually contained meaningful changes to some of the most problematic provisions in the PATRIOT Act--provisions I have been trying to fix since October 2001-- so I decided to support it. I made it very clear at the time, however, that I viewed the bill as the end point of negotiations, not the beginning. In fact, I specifically warned my colleagues ``that the conference process must not be allowed to dilute the safeguards in this bill.'' Obviously, I meant it, but it appears that people either were not listening or weren't taking me seriously. This conference report, as slightly modified by this deal, unfortunately does not contain many important reforms to the PATRIOT Act we passed in the Senate, so I cannot support it. And I will fight.

I wish to remind my colleagues of the serious problems with the PATRIOT Act which we have been discussing for several years now. Let me start with section 215, the so-called library provision, which has received probably the most public attention of any one of the controversial provisions. I remember when the former Attorney General of the United States called the librarians who were expressing disagreement with this provision ``hysterical.'' What a revelation it was when the Chairman of the Judiciary Committee, the Senator from Pennsylvania, opened his questioning of the current Attorney General during his confirmation hearing by expressing concerns about this provision of the PATRIOT Act, section 215. He got the Attorney General to concede that, yes, in fact, this provision probably went a bit too far and could be improved and clarified. And that was really an extraordinary moment. It was a moment that was very slow in coming, and it was long overdue.

I give credit to the Senator from Pennsylvania because it allowed us to start having a real debate on the PATRIOT Act. Credit also has to go to the American people, who stood up, despite the dismissive and derisive comments of Government officials, and said, with loud voices: The PATRIOT Act needs to be changed.

My colleagues know as well as I do that these voices came from the left and the right, from big cities and small towns across America. So far, more than 400 State and local governmental bodies have passed resolutions calling for revisions to the PATRIOT Act. I plan to read some of those resolutions on the floor during this debate, and there are a lot of them. Nearly every one mentions section 215.

Section 215 is at the center of this debate over the PATRIOT Act. It is also one of the provisions that I tried unsuccessfully to amend here on the floor in October of 2001. So it makes sense to start my discussion of the specific problems I have with the conference report with the infamous ``library'' provision.

Section 215 of the PATRIOT Act allows the Government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including not just library records but also medical records and various other types of business records. The PATRIOT Act allowed the Government to obtain these records as long as they were ``sought for'' a terrorism investigation. That is all they had to say. That is a very low standard. It didn't require that the records concern someone who was suspected of being a terrorist or spy or even suspected of being connected to a terrorist or a spy. It didn't require any demonstration of how the records would be useful in the investigation. Under section 215, if the Government simply said it wanted records for a terrorism investigation, the secret FISA Court was required to issue the order--no discretion required to issue the order, period. To make matters worse, recipients of these orders are also subject to an automatic gag order. They cannot tell anyone that they have been asked for records.

Some in the administration and even in this body took the position that people shouldn't be able to criticize these provisions until they could come up with a specific example of ``abuse.'' The Attorney General has repeatedly made that same argument, and he did so again in December in an op-ed in the Washington Post when he dismissed concerns about the PATRIOT Act by saying that ``there have been no verified civil liberty abuses in the 4 years of the Act's existence.''

First of all, that has always struck me as a strange argument since 215 orders are issued by a secret court and people who receive them are prohibited by law from discussing them. In other words, the law is designed--it is actually designed--so that it is almost impossible for you to know if abuses have occurred. But even more importantly, the claim about lack of abuse just isn't credible anymore, given what we now know about how this administration views the surveillance laws that this body, this Congress, writes. We now know that for the past 4-plus years, the Government has been wiretapping the international communications of Americans inside the United States without obtaining the wiretap orders required by statute.

If we want to talk about abuses, I can't imagine a more shocking example of an abuse of power than to violate the law by eavesdropping on American citizens without first getting a court order based on some evidence, some evidence that they are possibly criminals or terrorists or spies. So I don't want to hear again from the Attorney General or anyone on this floor that this Government has shown it can be trusted to use the power we give it with restraint and care.

The Government should not have those kinds of broad, intrusive powers in section 215--not this Government, not any government. The American people shouldn't have to live with a poorly drafted provision which clearly allows for the records of innocent Americans to be searched and just hope that the Government uses it with restraint. A government of laws doesn't require its citizens to rely on the good will and good faith of those who have these powers, especially when adequate safeguards could easily be written into the law--easily be written into the law--without compromising their usefulness as a law enforcement or antiterrorist tool.

After lengthy and difficult negotiations, the Judiciary Committee came up with language that achieved that goal. It would require the Government to convince a judge that a person has some connection to terrorism or espionage before obtaining their sensitive records. When I say ``some connection,'' that is what I mean. The Senate bill's standard is the following: No. 1, that the records pertain to a terrorist or spy; No. 2, that the records pertain to an individual in contact with or known to a suspected terrorist or spy; or No. 3, that the records are relevant to the activities of a suspected terrorist or spy. That is the three-prong test in the Senate bill, and I believe it is more than adequate to give law enforcement the power it needs to conduct investigations while also sufficiently protecting the rights of innocent Americans. It would not limit the types of records the Government could obtain, and it does not go as far to protect law- abiding Americans as I would prefer, but it would make sure the Government cannot go on fishing expeditions into the records of completely innocent people.

The Senate bill would also give recipients of the 215 order an explicit, meaningful right to challenge those orders and the accompanying gag orders in court. These provisions passed the Senate Judiciary Committee unanimously after tough negotiations late into the night, and as anyone familiar with the Judiciary Committee knows, including the Chair, that is no mean feat, to get that done in the Judiciary Committee on any issue.

The conference report did away with this delicate provision. First and most importantly, it does not contain the critical modifications to the standard for section 215 orders. The Senate permits the Government to obtain business records only if it can satisfy one or more of the prongs of the three-prong test I just described. This is a broad standard, and it has a lot of flexibility. But it retains the core protection--the core protection--that the Government cannot go after someone who has no connection whatsoever to a terrorist or spy or their activities.

The conference replaces the three-prong test with a simple relevance standard. It then provides a presumption of relevance that the Government meets one of the three prongs. It is silly to argue that this is adequate protection against a fishing expedition. The only actual requirement in the conference report is that the Government show that those records are just relevant to an authorized intelligence investigation--that is all--just relevant to an authorized intelligence investigation. Relevance is a very broad standard that could arguably justify the collection of all kinds of information about all kinds of law-abiding Americans. The three prongs are just examples of how the Government can satisfy the relevance standard. That is not simply a loophole or an exception that swallows the rule; the exception is the rule. The exception basically destroys the meaning of the carefully considered three-prong test we all supported in the Senate.

I will try to make this as straightforward as I can. The Senate bill requires the Government to satisfy one of three tests. Each test requires some connection between the records and a suspected terrorist or spy. But the conference report says that the Government only is required to satisfy a new fourth test, and that test is only relevance and which does not require a connection between the records and a suspect. So the other three tests no longer provide any protections at all.

This issue was perhaps the most significant reason I and others objected to the conference report. So, naturally, the question today is, How was this issue addressed by the White House deal to get the support of some Senators? The answer is, It wasn't. Not one change was made on the standard for obtaining section 215 orders, and that is a grave disappointment. The White House refused to make any changes at all. Not only would it not accept the Senate version of section 215, which no Member of this body objected to back in July, it wouldn't make any change in the conference report on this issue at all.

Another significant problem with the conference report that was rejected back in December is that it does not authorize judicial review of the gag order that comes with a section 215 order. While some have argued that the review by the FISA Court of a Government application for a section 215 order is equivalent to judicial review of the accompanying gag order, that is simply inaccurate. The statute does not give the FISA Court any latitude to make an individualized decision about whether to impose a gag order when it issues a section 215 order. It is required by statute to include a gag order in every section 215 order. That means the gag order is automatic and permanent in every case.

This is a serious deficiency and one which very likely violates the First Amendment. In litigation challenging a similar, permanent, automatic gag rule in a national security letter statute, two courts have found first amendment violations because there is no individualized evaluation of the need for secrecy. I have those decisions here,

and perhaps I will have a chance to read them during this debate.

This question of judicial review of the section 215 gag order is one issue that is actually addressed in some way by the White House deal-- addressed but not solved. Far from it. Under the deal, there is judicial review of section 215 gag orders, but it can only take place after a year has passed, and it can only be successful if the recipient of the section 215 order proves that the Government has acted in bad faith. As many of us have argued in the context of national security letters, that is a virtually impossible standard to meet. What we need is meaningful judicial review of these gag orders, not just the illusion of it.

I do acknowledge one change made by the White House deal that I do think is an improvement over the conference report. The conference report clarifies that the recipients of both section 215 orders and national security letters, which I will discuss in detail in a moment, can consult an attorney, but it also includes a provision that requires the recipients of these letters to notify the FBI if they consult with the attorney and to identify the attorney to the FBI. Obviously, this could have a significant chilling effect on the right to counsel. The deal struck with the White House makes clear that recipients of section 215 orders in national security letters would not have to tell the FBI if they consult with an attorney. That is an improvement over the conference report but, unfortunately, it is only one relatively minor change.

Let me now turn to a very closely related provision that has finally been getting the attention it deserves: national security letters, or NSLs--an authority that was expanded by section 358 and 505 of the PATRIOT Act. This NSL issue has flown under the radar for years, even though many of us have been trying to bring more public attention to it. I am gratified that we are finally talking about NSLs, in large part due to a lengthy Washington Post story published last year on the use of these authorities.

What are NSLs, and why are they such a concern? Let me spend a little time on this because it is quite important. National security letters are issued by the FBI to businesses to obtain certain types of records. So they are similar to section 215 orders, but with one very critical difference: the Government does not need to get any court approval whatsoever to issue them. It doesn't have to go to the FISA Court and make even the most minimal showing. It simply issues the order signed by the special agent in charge of a field office or some other FBI headquarters official.

NSLs can only be used to obtain certain categories of business records, in fairness, while section 215 orders can be used to obtain ``any tangible thing.''

But even the categories reachable by an NSL are quite broad. NSLs can be used to obtain three types of business records: subscriber and transactional information related to Internet and phone usage; credit reports; and financial records, a category that has been expanded to include records from all kinds of everyday businesses like jewelers, car dealers, travel agents and even casinos.

Just as with section 215, the PATRIOT Act expanded the NSL authorities to allow the Government to use them to obtain records of people who are not suspected of being, or even of being connected to, terrorists or spies. The Government need only certify that the documents are either sought for or relevant to an authorized intelligence investigation, a far-reaching standard that could be used to obtain all kinds of records about innocent Americans. And just as with section 215, the recipient is subject to an automatic, permanent gag rule.

The conference report does little to fix the problems with the national security letter authorities. In fact, it could be argued that it makes the law worse. Let me explain why.

First, the conference report does nothing to fix the standard for issuing an NSL. It leaves in place the breathtakingly broad relevance standard. Now, some have analogized NSLs to grand jury subpoenas, which are issued by grand juries in criminal investigations to obtain records that are relevant to the crime they are investigating. So, the argument goes, what is the big deal if NSLs are also issued under a relevance standard for intelligence investigations?

Two critical differences make that analogy break down very quickly. First of all, the key question is: Relevant to what? In criminal cases, grand juries are investigating specific crimes, the scope of which is explicitly defined in the criminal code. Although the grand jury is quite powerful, the scope of its investigation is limited by the particular crime it is investigating. In sharp contrast, intelligence investigations are, by definition, extremely broad. When you are gathering information in an intelligence investigation, anything could potentially be relevant. Suppose the Government believes a suspected terrorist visited Los Angeles in the last year or so. It might then want to obtain and keep the records of everyone who has stayed in every hotel in L.A., or booked a trip to L.A. through a travel agent, over the past couple years, and it could argue strongly that that information is relevant to a terrorism investigation because it would be useful to run all those names through the terrorist watch list.

I don't have any reason to believe that such broad use of NSLs is happening. But the point is that when you are talking about intelligence investigations, ``relevance'' is a very different concept than in criminal investigations. It is certainly conceivable that NSLs could be used for that kind of broad dragnet in an intelligence investigation. Nothing in current law prevents it. The nature of criminal investigations and intelligence investigations is different, and let's not forget that.

Second, the recipients of grand jury subpoenas are not subject to the automatic secrecy that NSL recipients are. We should not underestimate the power of allowing public disclosure when the Government overreaches. In 2004, Federal officials withdrew a grand jury subpoena issued to Drake University for a list of participants in an antiwar protest because of public revelations about the demand. That could not have happened if the request had been under section 215 or for records available via the NSL authorities.

Unfortunately, there are many other reasons why the conference report does so little good on NSLs. Let's talk next about judicial review. The conference report creates the illusion of judicial review for NSLs, both for the letters themselves and for the accompanying gag rule, but, if you look at the details, it is drafted in a way that makes that review virtually meaningless. With regard to the NSLs themselves, the conference report permits recipients to consult their lawyer and seek judicial review, but it also allows the Government to keep all of its submissions secret and not share them with the challenger, regardless of whether there are national security interests at stake. So you can challenge the order, but you have no way of knowing what the Government is telling the court in response to your challenge. The parties could be arguing about something as garden variety as attorney-client privilege, with no national security issues, and the Government would have the ability to keep its submission secret. That is a serious departure from our usual adversarial process, and it is very disturbing.

The other significant problem with the judicial review provisions is the standard for getting the gag rule overturned. In order to prevail, the recipient has to prove that any certification by the Government that disclosure would harm national security or impair diplomatic relations was made in bad faith. Again, this is a standard of review that is virtually impossible to meet. So what we have is the illusion of judicial review. When you look behind the words in the statute, you realize it's just a mirage.

Does the White House deal address these problems? It does not. In fact, as I have already discussed, it expands that same very troubling standard of review to judicial review section 215 gag orders.

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

the library is offering ``electronic communication services'' as defined in the statute. But that just restates the existing requirements of the NSL statute, which currently applies only to entities--libraries or otherwise--that provide ``electronic communication services.'' So that provision has no real legal effect whatsoever. Perhaps that explains why the American Library Association issued a statement calling this provision a ``figleaf'' and expressing disappointment that so many Senators have agreed to this deal.

I also want to take a moment to address, again, an argument that has been made about the NSL provisions of the conference report. It has been argued that many of the complaints I have about the NSL provisions of the conference report apply equally to the NSL provisions of the Senate bill and therefore, because I supported the Senate bill, by some convoluted theory my complaints are therefore invalid and I should support the conference report.

That just makes no sense. The NSL section of the Senate bill was one of the worst sections of the bill. I didn't like it then, and I don't like it now. But in the context of the larger package of reforms that were in the Senate bill, including the important changes to section 215 that I talked about earlier and the new time limit on ``sneak and peek'' search warrants that I will talk about in a moment, I was able to accept that NSL section even though I would have preferred additional reforms.

The argument has been made that after supporting a compromise package for its good parts, I guess the idea is I am supposed to accept a conference report that has only the bad parts of the package even though the good parts have been stripped out. That is just nonsense, and every Member of this chamber who has ever agreed to a compromise-- and I must assume that includes every single one of us--knows it.

The other point I want to emphasize here is that the Senate bill was passed before the Post reported about the use of NSLs and the difficulties that the gag rule poses for businesses that feel they are being unfairly burdened by them. At the very least, I would think that a sunset of the NSL authorities would be justified to ensure that Congress has the opportunity to take a close look at such a broad power. But the conferees and the White House refused to make that change. Nor would they budge at all on the absurdly difficult standard of review, the so-called conclusive presumption; in fact, the White House insisted on repeating it in the context of judicial review of section 215 gag orders.

This points out a real problem I have with the White House deal. In our letter in December, my colleagues and I, Democratic and Republican, complained about the unfair standard for judicial review of the gag order in connection to NSLs. So how can the supporters of this deal argue that applying that same standard to challenges to the gag rule for section 215 orders is an improvement? A standard that was unacceptable in December has somehow miraculously been transformed into a meaningful concession. That is just spin. It doesn't pass the laugh test.

I suspect that the NSL power is something that the administration is zealously guarding because it is one area where there is almost no judicial involvement or oversight. It is the last refuge for those who want virtually unlimited Governmental power in intelligence investigations. And that is why the Congress should be very concerned and very insistent on making the reasonable changes we have suggested.

I next want to address ``sneak and peek'' searches. This is another area where the conference report departs from the Senate's compromise language, another area where the White House deal makes no changes whatsoever, and another reason that I must oppose the conference report.

When we debated the PATRIOT Act in December, the senior Senator from Pennsylvania made what seems on the surface to be an appealing argument. He said that the Senate bill requires notice of a sneak and peek search within 7 days of the search, and the House said 180 days. The conference compromised on 30 days. ``That's a good result,'' he says. ``They came down 150 days, we went up only 23. What's wrong with that?''

Let me take a little time to put this issue in context and explain why this isn't just a numbers game--an important constitutional right is at stake.

One of the most fundamental protections in the Bill of Rights is the fourth amendment's guarantee that all citizens have the right to ``be secure in their persons, houses, papers, and effects'' against ``unreasonable searches and seizures.'' The idea that the Government cannot enter our homes improperly is a bedrock principle for Americans, and rightly so. The fourth amendment has a rich history and includes in its ambit some very important requirements for searches. One is the requirement that a search be conducted pursuant to a warrant. The Constitution specifically requires that a warrant for a search be issued only where there is probable cause and that the warrant specifically describe the place to be searched and the persons or things to be seized.

Why does the Constitution require that particular description? For one thing, that description becomes a limit on what can be searched or what can be seized. If the magistrate approves a warrant to search someone's home and the police show up at the person's business, that search is not valid. If the warrant authorizes a search at a particular address, and the police take it next door, they have no right to enter that house. But of course, there is no opportunity to point out that the warrant is inadequate unless that warrant is handed to someone at the premises. If there is no one present to receive the warrant, and the search must be carried out immediately, most warrants require that they be left behind at the premises that were searched. Notice of the search is part of the standard Fourth Amendment protection. It's what gives meaning, or maybe we should say ``teeth,'' to the Constitution's requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized.

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

We take this position because surreptitious searches and

seizures of intangibles strike at the very heart of the

interests protected by the Fourth Amendment. The mere thought

of strangers walking through and visually examining the

center of our privacy interest, our home, arouses our passion

for freedom as does nothing else. That passion, the true

source of the Fourth Amendment, demands that surreptitious

entries be closely circumscribed.

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

Section 213 of the PATRIOT Act didn't get this part of the balance right. It allowed notice to be delayed for any reasonable length of time. Information provided by the administration about the use of this provision indicates that delays of months at a time are now becoming commonplace. Those are hardly the kind of delays that the courts had been allowing prior to the PATRIOT Act.

The sneak and peek power in the PATRIOT Act caused concern right from the start. And not just because of the lack of a time-limited notice requirement. The PATRIOT Act also broadened the justifications that the Government could give in order to obtain a sneak and peek warrant. It 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.

That is why it sounds to many like a catch-all provision.

Critics of the sneak and peek provision worked to fix both of the problems when they introduced the SAFE Act. First, in that bill, we tightened the standard for justifying a sneak and peek search to a limited set of circumstances--when advance notice would endanger life or property, or result in flight from prosecution, the intimidation of witnesses, or the destruction of evidence. Second, we required notice within 7 days, with an unlimited number of 21-day extensions if approved by the court.

The Senate bill, as we all know, was a compromise. It kept the catch- all provision as a justification for obtaining a sneak and peek warrant. Those of us who were concerned about that provision agreed to accept it in return for getting the 7-day notice requirement. And we accepted unlimited extensions of up to 90 days at a time. The key thing was prompt notice after the fact, or a court order that continuing to delay notice was justified.

That is the background to the numbers game that the Senator from Pennsylvania and other supporters of the conference report point to. They want credit for walking the House back from its outrageous position of 180 days, but they refuse to recognize that the sneak and peek provision still has the catch-all justification and unlimited 90- day extensions.

Here is the crucial question that they refuse to answer. What possible rationale is there for not requiring the Government to go back to a court within 7 days and demonstrate a need for continued secrecy? Why insist that the Government get 30 days free without getting an extension? Could it be that they think that the courts usually won't agree that continued secrecy is needed after the search is conducted, so they won't get the 90-day extension? If they have to go back to a court at some point, why not go back after 7 days rather than 30? From the point of view of the Government, I don't see the big deal. But from the point of view of someone whose house has been secretly searched, there is a big difference between 1 week and a month with regard to the time you are notified that some one came into your house and you had absolutely no idea about it.

Suppose, for example, that the Government actually searched the wrong house. As I mentioned, that's one of the reasons that notice is a fourth amendment requirement. The innocent owner of the place that had been searched might suspect that someone had broken in, might be living in fear that someone has a key or some other way to enter. Should we make that person wait a month to get an explanation rather than a week? Presumably, if the search revealed nothing, and especially if the Government realized the mistake and does not intend to apply for an extension, it will be no hardship, other than embarrassment, for notice to be given within 7 days.

That is why I'm not persuaded by the numbers game. The Senate bill was already a compromise on this very controversial provision. And there is no good reason not to adopt the Senate's provision. I have pointed this out repeatedly, and no one has ever come forward and explained why the Government can't come back to the court within 7 days of executing the search. Instead, they let the House get away with a negotiating tactic--by starting with 180 days, they can argue that 30 days is a big concession. But it certainly wasn't.

Let me put it to you this way: If the House had passed a provision that allowed for notice to be delayed for 1,000 days, would anyone be boasting about a compromise that requires notice within 100 days, more than 3 months? Would that be a persuasive argument? I don't think so. The House provision of 180 days was arguably worse than current law, which required notice ``within a reasonable time,'' because it creates a presumption that delaying notice for 180 days, 6 months, is reasonable. It was a bargaining ploy. The Senate version was what the courts had required prior to the PATRIOT Act. And it was itself a compromise because it leaves in place the catch-all provision for justifying the warrant in the first place. That is why I believe the conference report on the sneak and peek provision is inadequate and must be opposed. And the fact that this so-called deal with the White House does not address this issue is yet another reason why I see no reason why I, or anyone, should change their position on this.

Let me make one final point about sneak and peek warrants. Don't be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It's not. Section 213 is a criminal provision that applies in whatever kinds of criminal investigations the Government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations. So why do I say that they aren't needed in terrorism investigations? Because FISA also can apply to those investigations. And FISA search warrants are always executed in secret, and never require notice. If you really don't want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that limiting the sneak and peek power as we have proposed will interfere with sensitive terrorism investigations is a red herring.

I have spoken at some length about the provisions of this conference report that trouble me, and the ways in which the deal struck with the White House does not address those problems with the conference report. But to be fair, I should mention one aspect of the conference report that was better than a draft that circulated prior to the final signing of that report. The conference report includes 4-year sunsets on three of the most controversial provisions: roving wiretaps, the so-called ``library'' provision, and the ``lone wolf' provision of the Foreign Intelligence Surveillance Act. Previously, the sunsets on these provisions were at 7 years, and it is certainly an improvement to have reduced that number so that Congress can take another look at those provisions sooner.

I also want to acknowledge that the conference report creates new reporting requirements for some PATRIOT Act powers, including new reporting on roving wiretaps, section 215, ``sneak and peek'' search warrants, and national security letters. There are also new requirements that the Inspector General of the Department of Justice conduct audits of the Government's use of national security letters and section 215. In addition, the conference report includes some other useful oversight provisions relating to FISA. It requires that Congress be informed about the FISA Court's rules and procedures and about the use of emergency authorities under FISA, and gives the Senate Judiciary Committee access to certain FISA reporting that currently only goes to the Intelligence Committee. I am also glad to see that it requires the Department of Justice to report to us on its data mining activities.

But adding sunsets and new reporting and oversight requirements only gets you so far. The conference report, as it would be modified by S. 2271, remains deeply flawed. I appreciate sunsets and reporting, and I know that the senior Senator from Pennsylvania worked hard to ensure they were included, but these improvements are not enough. Sunsetting bad law in another 4 years is not good enough. Simply requiring reporting on the Government's use of these overly expansive tools does not ensure that they will not be abused. We must make substantive changes to the law, not just improve oversight. This is our chance, and we cannot let it pass by.

Trust of Government cannot be cannot be demanded or asserted or assumed; it must be earned. And this administration has not earned our trust. It has fought reasonable safeguards for constitutional freedoms every step of the way. It has resisted congressional oversight and often misled the public about its use of the PATRIOT Act. We know now that it has even authorized illegal wiretaps and is making misleading legal arguments to try to justify them. We sunsetted 16 provisions of the original PATRIOT Act precisely so we could revisit them and make necessary changes--to make improvements based on the experience of 4

years with the Act, and with the careful deliberation and debate that, quite frankly, was missing 4 years ago. This process of reauthorization has certainly generated debate, but if we pass the conference report, even with the few White House modifications, in some ways we will have wasted a lot of time and missed our opportunity to finally get it right.

The American people will not be happy with us for missing that chance. They will not accept our explanation that we decided to wait another 4 years before really addressing their concerns. It appears that is now an inevitable outcome. But I am prepared to keep fighting for as long as it takes to get this right. For now, I urge my colleagues to oppose the motion to proceed to this legislation to implement the White House deal. We can do better than these minor cosmetic changes.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, I appreciate the Senator from Alabama joining the debate about the PATRIOT Act. I am going to respond very briefly to his remarks because I know there are other Senators on the floor who wish to speak about other issues, and I will defer to them in a moment.

But the Senator complained that the Senate is enduring another filibuster on this issue. I suppose that is one way to characterize it. What I would characterize it as is those of us who have concerns about this bill are enduring again speech after speech that has absolutely nothing to do with the issues at hand. That is irrelevant to the concerns we have raised about the PATRIOT Act.

Throughout his speech, the Senator from Alabama talked about issues that are not about the concerns we have raised. In fact, again, we are subjected to this idea that somehow those of us who raise these concerns are not concerned about what happened to this Nation on 9/11, that we do not feel exactly as much as the Senator from Alabama the pain and the tragedy of the loss of those 3,000 lives.

Not a single concern I have raised about this bill would have anything to do with this Government's ability to crack down on people who are trying to attack this country. In fact, that is the whole point. All of the changes we seek are to try to make sure we distinguish those who are completely innocent and unrelated to the terrorists from those who, in fact, are involved in espionage or terrorism.

The Senator talks about academic issues. But these are not academic issues. The fact is, when he brings up anything specific, he is changing the subject. He is bringing up noncontroversial issues. He talks about this wall. I talked about this in my speech before: the wall between the CIA and FBI. No Member of this body disputes that wall needed to be taken down. The wall has been taken down. I do not want it to be put back up. That is not in controversy.

And virtually the entire speech by the Senator from Alabama was about specific issues--the Midhar case and the Moussaoui case. All of that part of his speech was about something that is not in controversy. If he wants to offer that as a bill right now to simply continue that provision, he can put me down as a cosponsor. So it is completely irrelevant to what we are discussing and what my concerns are at this point.

The Senator says that somehow people are running around saying that the FBI is kicking down people's doors without a warrant. Nobody ever said that. I understand how the sneak-and-peek provisions work. We have been on this issue for a while. We know that in sneak and peek there has to be a warrant.

The question there is not whether there are warrantless searches of people's homes. The question is, when somebody is allowed, through a judicial order and a warrant, to come into somebody's house when they do not get notice of it, how long somebody should have to endure the possibility that their home has been searched and they

do not get notice after the fact that somebody came into their house when they were not there. So again, the argument is entirely unrelated to the concern.

The concerns we have raised are important, but they are limited. I am going to insist in this debate that we debate the concerns that we have put forward.

Finally, Mr. President, I am amused by the Senator talking about how we passed a bill in the Judiciary Committee by a unanimous vote. You bet we did. The Senator from Alabama voted for it and I voted for it. The whole Senate did not oppose the bill. Now every single thing I have advocated to change in the PATRIOT Act, in terms of the product of this body, is what I am advocating today. The Senator is acting as if those are dangerous provisions. Well, he voted for them. He voted for the stronger standard on 215. He voted for 7 days on the sneak-and-peek provisions. So how can they be dangerous if the Senator from Alabama actually voted for those provisions with me in the Judiciary Committee?

These are not dangerous changes. These are not irresponsible changes. These are not changes that have anything to do with legitimate efforts to try to stop the terrorists.

I so thank the Senator. I always enjoy debating him. He is the one Senator who has come down here and engaged on this today. I appreciate that. But I wish the debate could be about the questions that have arisen having to do with notice issues in sneak and peek, whether there is going to be a stronger provision on national security letters, whether there is going to be a provision on library business records to make sure it is tied to terrorists. The only reason I am doing this has to do with those kinds of provisions, not the issues the Senator from Alabama raised on which I happen to, in large part, agree.

Mr. President, if the Senator is asking me a question, I am happy to respond.

I spoke at some length this morning about this issue which I call the numbers game on the sneak and peek. Of course, the sneak-and-peek provision is not my only concern. There are four or five areas. But I am very concerned about the length of time that somebody does not get notice that the FBI has come into their home without their being aware of it and the idea that somehow, after very careful court decisions said there will be exceptions to the requirements of the fourth amendment for perhaps 7 days--that was the standard in the court decisions upon which these unusual sneak-and-peek provisions were based--then to somehow have it become reasonable to have a whole month, a 30-day period, strikes me as extreme.

The 7-day standard was not picked out of the air. The 7-day standard was based on those court decisions which made the unusual law, in terms of our history as a country in the prohibition against unreasonable searches and seizures--the 7 days was based on those court decisions. So, yes, 30 days, four times more, is unreasonable.

After the Government has come into somebody's home and they have had 7 days, why is it that they should not have to come back and get permission to do that for a longer period of time? What is the need for the Government to have 30 days to not tell somebody to do that, when you remember that the Senate version you and I both voted for had the 7-day period?

Mr. President, I could say: Gee, it went from 180 to 30. I could tell my constituents in Spooner, WI: Look, the Government is going to come into your home under a special circumstance when you are not around, and it might not have even been the right house, and we are making this exception for 7 days because of emergencies in important situations. You and I both agree in certain circumstances that might occur. But the idea that for a whole month, that for 30 days the Government of the United States of America can come into your home without telling you they have been there, even if they have made a mistake, and they have no responsibility to tell a completely innocent person they made a mistake, to me is serious business.

If the Senator could make a credible argument as to why it is important for the Government to have a whole month after this 7-day period or 3 more weeks after the 7-day period, it would be one thing. But nobody has even made the argument that it is important for the Government to have 30 days to conduct this search. It is essentially an unreasonable period of time. I think it is important. The erring here should be on the side of people's liberty. It should be on the side of people protecting their homes from unreasonable searches and seizures. It should not be: What is the problem here? The Senator should be happy he got something better than the House version. I don't accept that, as somebody who believes the fourth amendment still has meaning.

I yield to the Senator from West Virginia.

Absolutely.

I yield my time.

Certainly, I had no objection to that.

Mr. President, reserving the right to object, I ask to be recognized at the completion of the Senator's speech.

Mr. President, I ask unanimous consent to be recognized at the conclusion of the remarks of the Senator from Virginia and the Senator from Arkansas.

I understand an agreement has been reached to have the cloture vote on the motion to proceed tomorrow morning and then a cloture vote on the bill on that Tuesday after we return from the recess.

I point out the agreement essentially implements the schedule that would have been followed had I required the Senate to go through all the procedural hoops necessary to reach a vote on the White House deal. It, of course, maintains the 60-vote threshold for passing this legislation.

I thank the two leaders for working with me. I have no desire to inconvenience my colleagues or force votes in the middle of the night, as I understand the majority leader was threatening.

I have been trying all day to get an agreement to allow debate and votes on a small number of amendments to this bill. I do not understand what the majority leader is afraid of or concerned about in rejecting this reasonable request. So while I do not object to the agreement that will be propounded in a few minutes, I hope once we are on the bill tomorrow, I will be able to offer amendments and have them voted on.

I suggest the absence of a quorum.

Mr. President, I am sorry we are now facing another filibuster and delay of efforts to reauthorize the PATRIOT Act. We have taken 3 days this week to deal with legislation Senator Sununu introduced to assuage concerns he and others had about the bill. Senator Sununu's proposed bill guaranteed that at least four more Members of the Senate were on board to completely support a cloture vote on and final passage of the Conference Report. It certainly brought on board all the Republicans who expressed concern over the bill. But we are still going through the process of grinding down certain provisions to get an up-or-down vote on reauthorizing the PATRIOT Act. That is all we are asking for, an up-or-down vote, to determine whether we want to extend the provisions of the PATRIOT Act. That is being held up. We have many other things that are important for us to do for our country, but we have been forced to spend an extraordinary amount of time on this.

If you look around, you will see that people are not engaging the issue. The complaints--Senator Kyl talked about some of them--are insubstantial. They are not the kind of serious concerns people have portrayed them to be. The act itself provides quite a number of provisions that simply allow investigators to use the same tactics to investigate terrorists, people who want to kill us, that they use to investigate wage-and-hour disputes, to investigate your taxes, to investigate drug dealers and pharmacists and drug dispensers and doctors. It is important that investigators continue to have these tools at their disposal.

It is unfortunate we have had this obstruction. We have seen a pattern of it, frankly. The more time we spend on delaying these kinds of provisions, means that at the end of the year there will be a jammed-up calendar. We will have appropriations bills that have to pass, and other bills that need to pass. All the days we had at the beginning of the year have now been frittered away on rearguing things that we have argued and settled before.

I don't mind debate. Senator Feingold has come down and spent a number of hours expressing his concerns. I respect him. He is a most articulate opponent of the act. He has certainly studied the act. We don't agree, but I respect that. But we went through all this in December for days on the floor of the Senate, debating these same issues. With Senator Sununu's compromise and suggestions for improvement that have been accepted, the basis for many of those complaints have gone away. Now we are taking another big, long time to reargue settled issues. I believe the majority leader, Senator Frist, is justified in his frustration that something that has been debated completely and fully and that now has a clear majority of Senators prepared to support it is being held up, delaying all the processes of the Senate.

Let's talk about the merits of the bill and how the law deals with certain issues for which we have heard objections. One of the biggest items and perhaps the biggest issue that Senator Feingold and opponents have raised has been the delayed search warrants. The bill that came out of the Senate was passed by unanimous consent. We moved the PATRIOT Act reauthorization out of the Judiciary Committee by a unanimous vote. We moved it out of the Senate by a unanimous vote. The House passed a bill by an overwhelming majority. The House and the Senate bills went to conference, and they discussed it. We made concessions on each side.

Senator Specter, chairman of the Judiciary Committee, a man who certainly has been respectful to civil liberties, has stated that he believes about 80 percent of the compromise that was reached favored the Senate version, not the House version. The House conceded on more issues than the Senate. They gave more than the Senate did. The bill that came out of conference was very close to the Senate bill. Then we hit the Senate floor, after having a unanimous vote, and now we have a filibuster. It is, indeed, frustrating.

Let me talk about the delayed search warrants. What the PATRIOT Act does is to codify, to make a part of the law of the country, provisions for delayed notice search warrants. Delayed notice search warrants are not, as some have said in the Senate, an unusual procedure. Delayed notice search warrants have been in use for decades, long before we passed the PATRIOT Act. This act did not create any new authority or close any gap because there was no gap to close. The PATRIOT Act simply created a nationally uniform process and standard for obtaining a delayed notice search warrant.

Some have said: The court said 7 days is what you ought to delay notice. That is the maximum time you should delay notice. That is not quite accurate. The Ninth Circuit, the most liberal circuit in the United States, the most reversed circuit in the United States by the Supreme Court, has held in one case that delayed notice search warrants that explicitly provided for notice within a reasonable period of time by the judge issuing the warrant pass constitutional muster under the fourth amendment. They said a delayed notice search warrant does pass constitutional muster. Then they went on to ask, though, what is a reasonable period of time? They defined it as 7 days, absent a strong showing of necessity. That is what the Ninth Circuit said, the most liberal circuit in America. But other courts, such as the Fourth Circuit, have upheld much longer initial delays as constitutional. For example, the Fourth Circuit has determined that a 45 day period for delayed notice is constitutional. The Fourth Circuit did not even suggest that 45 days was the upper limit. They simply concluded it was reasonable in those circumstances. The truth is, there is no standard set under current law by the courts that would mandate a specific period of time for a delayed notice.

When the House of Representatives passed its version of PATRIOT Act reauthorization, it called for 180 day delayed notification period. The vote in the House was 257 to 171, a bipartisan vote of Republicans and Democrats, to approve overwhelmingly a delay of 180 days. The bill we sent to conference had a 7 day delayed notification provision in it. When the conference reported the bill, it tilted much closer to the Senate bill. It came out with 30 days, less than the 45 that the Fourth Circuit had approved, more than the Ninth Circuit had said. And it was a perfectly logical process we went through.

About the importance of delayed search warrants in terrorist investigations, I can't express how strongly I believe that this has the potential to be the most significant provision in our legislation, the PATRIOT Act. Time and time again, Federal investigators, working with State and local investigators, determine that groups are involved in terrorist activities. They don't know all the people who are involved. They don't know the full extent, but they have probable cause to establish that they are violating or planning to attack the United States or are participating in a conspiracy to kill people to further their terrorist goals. So what do you do then?

Under the PATRIOT Act--not the National Security Act or what we have talked about, the national security intercepts you have heard so much about in the paper; those are international and involve the President's inherent authority--under the traditional law of America, what do you do if you have probable cause to believe these groups are meeting, that there is some sort of sleeper cell in existence, you have proof, not just suspicion, proof to the level of probable cause that they are participating in this scheme?

One of the most potentially beneficial things would be to get a search warrant for that house. But if you do it under normal conditions, when you have to conduct a search warrant if the defendant is not there, you provide him notice that you have conducted a search warrant. When you come to the door and before you go in, if no one is there, you have to leave a return on the door showing that you searched the place and any items you seized and who to contact. That is what you normally do in a search warrant.

Police officers do that every day. But first they go to a judge and they swear under oath that they have probable cause, and not only say they have it, they spell it out. And judges, on appeal, can review it. If the judge who approved the search warrant was in error, they can reverse it or the evidence can be excluded from trial. So you go to a judge. We are not in any way changing that great principle that a U.S. Federal judge or a State judge would have to approve a search warrant. You are not changing in any way the principle that they have to have probable cause under oath that evidence exists at the scene of the place searched which would be relevant to an investigation. All of that is the same as it has always been.

But the one critical thing--and this has been legitimated by courts and approved by the U.S. Supreme Court--is that you can, in certain cases, ask that the notice which you would normally give to the owner of the residence or the person who has custody and control of that location be delayed.

Now, this can be absolutely critical in a case of national security. It is so important. Please, I want you to understand that. You may be able to go in that area and find names, phone numbers, records, or bank deposits that would identify a whole group of other people, and you are not ready to arrest them that moment because you don't know where they are located. You need to check this out and follow up on it. If you arrest that bad guy and give notice to the people right there, the whole world will know it, and they will spread the word and they will scatter. That is exactly what will happen. So that is why, in certain instances, law enforcement officers have sought, and courts have approved without the PATRIOT Act, delayed notice search warrants.

So then when do you notify the person? All the PATRIOT Act says is that the police officers can delay notification for 30 days. At the end of that 30 days, if they don't come back to the court and show a legal basis to continue to delay to notify the defendant, they have to notify the defendant on the 30th day. That is all this Conference Report says. That is reasonable. It is not an abuse of the power of the Congress. It is not in any way contradictory to the great traditions of law enforcement in America. It has nothing to do with the President's Executive powers to fight a war. This is under the criminal law aspect of American justice.

I asked for delayed notices on rare occasions when I was a Federal prosecutor. I am telling you, whether investigating a big drug gang or a Mafia group, these are the kinds of things which can make all the difference in the world. And it is even more important in terrorist investigations because these people will scatter and because it is a matter of life and death. That is all I am saying. There is nothing unusual or strange about it.

The Department of Justice wrote a letter which said that a delayed notice warrant differs from an ordinary search warrant only in that the judge authorizes the officer executing the warrant to wait for a limited period before notifying the subject of the search because immediate notice would have an adverse result, as defined by statute, that could undermine the investigation. So this is all this is about. I think few people would dispute it. Yet we have a filibuster because some Senators apparently believe that 30 days destroys the Constitution. They believe that it violates the Constitution to ask the police officer to wait 30 days before they notify the defendant.

The House of Representatives, by an overwhelmingly bipartisan vote of 257 to 174, voted to allow the officers to delay 180 days. So now we have been here 3 days debating this issue this week. This is the No. 1 complaint they have about the bill. I don't know what it is that got us to this point.

The conference report before us today eliminates the possibility of an open-ended delayed notice. It requires notice within 30 days unless the court grants an extension. Current law allows for simply a reasonable delay, which is whatever the judge may decide in a given case. Well, they say, why do you need 30 days? Well, the Fourth Circuit found that 45 days is good enough. I will give this example which the Department of Justice gave: Operation Candy Box. A delayed notice was permitted in a multijurisdictional investigation targeting a Canadian- based ecstasy and marijuana-trafficking organization. The delay allowed for a successful, uninterrupted, month-long investigation that resulted in the arrest of over 130 people. Without delayed notice, agents would have been forced to reveal the existence of the investigation prematurely.

As a Federal prosecutor myself, I want to tell you, one of the biggest decisions in any investigation of any organized criminal group or terrorist group is the decision of when to conduct the takedown. When do you arrest them? Do you run out as soon as you know there is a group and you have

evidence on one of them--do you run out and grab that one? How stupid can you be? If you grab one, the rest will know it and know you are going to come after them; they are going to scatter or they will destroy evidence. They will run and hide, and they may create a sleeper cell in a different city and continue their plans to kill Americans or to sell dope or whatever it is they are doing illegally. So you have to plan the takedown.

When you are dealing with cases involving life and death, you have to be very careful about it. Don't think the agents don't work with prosecutors and staff people and plan out these takedowns to the most minute detail. When do you do it? Do you catch six low-level flunkies and let the big guys get away? No. Someone might say the big guy is coming into town the next day, so we will have a team there and we will have probable cause to arrest him. Then you get a search warrant. When do you execute the warrant? You want to execute it at a time of your choosing so you can wrap up as many of the members of the organization as possible at one time. That is what it is all about.

Sometimes you need to know more about this organization. You don't know all the people who are involved. That is where a delayed notice warrant can allow you to obtain information about other people who are involved and do further investigations and find out, maybe, that two or three dangerous criminals should also be arrested at or about the same time. They will provide you the probable cause to arrest them because you cannot arrest people without probable cause in America. You have to have evidence. You cannot just arrest somebody on suspicion.

So where do you get the evidence? Some people in this Senate forget that police officers are not magicians; they have to gather evidence. How do you get it? One way you find out the evidence is to conduct a lawful search on a warrant approved by a Federal judge or a State judge. If it is a Federal crime, it would be a Federal judge. Then you may execute a delayed notice warrant, and you may find more evidence of other people that can be corroborated and you can build up probable cause. And instead of having probable cause to arrest just 2 defendants, you may have probable cause to arrest 8 of them, and maybe you take down the whole sleeper cell. Maybe there are 8 in this town and 4 more in Boston and some more in San Diego or in Washington, DC. You can arrest all three or four cells at the same time. Would that not be the ideal thing?

I am telling you that this is what law enforcement officers attempt to do every day. They do it according to the laws that we require.

In 2002, the issuance of a delayed notice search warrant helped break a massive multistate methamphetamine ring. The delayed notice allowed investigators to locate illegal drugs, which provided further leads, eventually resulting in the seizure of mass quantities of drugs and the identification of those involved in the criminal organization. More than 100 people were charged with drug-trafficking offenses, and a number of them have been convicted.

In another case, a delayed warrant was issued to search an envelope which was sent to the target of an investigation. An envelope had been sent to the person, and they got a warrant to search the envelope. The search confirmed that the target was operating an illegal money exchange and was funneling money to the Middle East, including to an associate of an Islamic jihad operative. Delayed notice allowed the investigators to conduct a search without compromising an ongoing wiretap they had been carrying on based on probable cause, and with the approval of a U.S. District judge. But they didn't just conduct a wiretap; they were conducting this wiretap and they needed to find out if money or drugs were moving so they could seize that or allow the package to continue and then arrest the person who received it.

That is what we are talking about here. That is why there is nothing extreme in any way about the delayed notice search warrant law.

Well, what about the national security letters? You have heard a lot about that issue. The complaint is that Senators have said this will allow you to obtain information from people not connected to terrorists or spies. The national security letters, which existed long before the PATRIOT Act, can only be in a certain specific and limited number of circumstances.

Now, I will talk about those in a moment, but they are listed in 5 statutes, so it is not an open-ended provision. It only deals with national security issues. The procedures set forth in this act which allow those letters to issue are in no way extreme. They in no way threaten the great liberties all of us share but indeed are essential tools in this age of national security threats to our country, and they can be critical, critical, critical facts for investigators to enable them to identify those cells which may be in this country trying to attack and kill American citizens, as we saw on September 11.

I want to emphasize that national security letters existed long before the PATRIOT Act and can be used in only very limited circumstances for national security issues. In fact, it is a particularly valuable tool that is utilized frequently by investigators. The New York Times said there have been a lot of national security letters issued since 9/11. Well, we are doing a lot more investigation. Every FBI office in America is pursuing every lead that pops up, unlike what we were doing before 9/11, and are verifying and checking out and determining the kinds of things that are necessary to find out, such as if someone may be connected to a terrorist organization and may be planning an attack on the United States. Isn't that what we demanded after 9/11? But the numbers that have been published are clearly exaggerated. They are not accurate, and they have been criticized by the officials who are involved. I add that parenthetically.

The PATRIOT Act originally made very few changes to the national security letter procedure. It merely made relevance the standard for obtaining a national security letter and allowed special agents in charge to issue them. The special agent in charge would be the special agent in charge of the FBI office in New York City, for example, or in Boston or in Birmingham, AL, and those special agents in charge supervise everyone in the office. They are considered to be high- ranking FBI officials responsible for the law enforcement issues relating to their agency in that district. So this was what we originally passed.

However, now under this conference report, the national security letters are to be used only for investigations involving terrorism and espionage, and they must pertain to ``an authorized investigation'' involving ``national security.''

These are national security investigations. National security letters cannot be used to obtain unlimited categories of material. They can only be used to obtain very limited categories of material in the possession of third parties, not the defendant. The great protections against the searching of your home have not been undermined. What we are talking about here are records that are under the dominion and control of a third party. You can say they are your bank records, but they are the bank's records. You can say they are your telephone company records, but they are the telephone company's records.

The law has always made a big distinction between the kind of proof you have to have for someone to come in and search your desk, to search your automobile, to search your home, than the kinds of procedures they have to go through to get the record at the local motel that might have your name on it. It is not your record, it is the motel's record. You have a diminished expectation of privacy. The courts have consistently held this view ever since the issue has been discussed. It is a fundamental part of daily law enforcement in America.

So they can be used only to obtain these kinds of records, not records you have under your control that would require a search warrant approved by a judge on probable cause, as I discussed earlier, as you would in a delayed search warrant case. It is a big deal. I am telling you, in a case such as this, I bet you search warrants would be 30 pages of affidavits to justify what they are searching for. But these are simply subpoenas, basically, for these records.

These records, as I said, belong to companies, and the individuals to

whom they refer have a reduced privacy interest in them. These national security letters cannot be used to obtain ``content information'' that involve any communications you may have made or the words of those communications with the phone company, but simply what the billing record said and the phone numbers you called. But you can't get, through a national security letter, the words of your phone call or intercept or record your phone call in any way, or your e-mails. The content of your e-mails can't be obtained with a national security letter. The national security letter is simply a request by a national security investigator for records.

If the recipient such as the bank, for example, objects, the FBI cannot compel production without going to court. The conference report specifically allows the recipient, however, of a national security letter to move to quash or dismiss or modify the national security letter and to challenge the nondisclosure order that accompanies the national security letter, and to talk to their attorneys about it if they choose, and other people who may be necessary to comply with the national security letter.

Some people say the nondisclosure requirement can keep you from speaking with your attorney. This legislation specifically allows you to talk to your attorney or anybody else who is related to it before you decide to utilize a motion to quash.

Let me share this with you. Imagine, now, you are an investigator, an FBI agent, and you have serious cause to believe that an individual may be connected to a terrorist organization. You want to find out if they have been calling Kabul, Baghdad or Islamabad. It is critically important, at a preliminary stage in an investigation such as this-- critically important, I emphasize--that the people being investigated not know that they are being investigated, that the investigators are on to them. That is why we placed in the law the limitation that the person or entity subpoenaed should not go and tell the people that the Feds are out there asking for your bank records or your telephone records. How can you conduct an investigation? From these records is the way the police officers and FBI agents get the probable cause to conduct a search warrant.

How do you get probable cause to conduct a search warrant? You take lesser steps to obtain information that is available to you, and it builds up until you get enough to have probable cause to go a judge to get a search warrant to search the home and you may even want to delay notice to the people at the home until you can be sure that everybody in this organization is known to you and they can all be arrested before they can get away. So that is what this is all about. It is perfectly logical and part of our law enforcement heritage.

In the conference report that is before us, it also provides an express right to judicial review for all types of national security letters, allowing courts to modify or quash the order if compliance would be unreasonable, oppressive or otherwise unlawful. It also changed the certification requirement. It requires a higher level of certification before you can ask for nondisclosure in the issuance of a national security letter. The nondisclosure requirement is not automatic. Local FBI cannot ask it. The local special agent in charge can't ask for it. Now it has to be invoked by one of the top officials of the DOJ in Washington, an official who must certify that disclosure would ``endanger the national security of the United States.''

I want to say that is too high a standard. We are going to fail to execute requests for mere documents in control of banks and telephone companies and motels and records of that kind because a DOJ official in Washington is going to be nervous about whether he has enough proof to certify that this matter would endanger the security of the United States. That is too high a standard. But it is in this bill because the civil libertarians wanted to put it in here.

Any county district attorney in America this very day can issue a subpoena to a bank or to a telephone company to get your phone records or the records from your doctor. This is not unusual that investigators can obtain documents in the possession of third parties. Please hear me. I know Senator Kyl made the comment that it is easier for an investigator to obtain your business records relating to whether you have paid withholding tax than it is for an investigator, under this case, to get records of whether you are connected to a terrorist organization.

I would add a few other examples. A Federal drug officer, a DEA agent, can walk into any pharmacy in America today and examine the pharmacy records that exist to see if somebody has submitted false documents, is overpurchasing drugs or the pharmacist is failing to keep records. He can examine all the records that are there. He doesn't have to have a warrant or a national security letter.

The IRS agents investigating whether you paid your taxes can subpoena your bank records by an administrative subpoena that does not require a grand jury approval or approval of any prosecutor. He can do it as an part of an administrative subpoena because they are not your records. But if he goes into your house and tries to take your personal documents, that is not so because he has to have a search warrant. A provision requiring this high level of certification is important protection for sure, and the standard imposed on the top FBI official I believe is too high. I believe one day we are going to regret it.

An express right to challenge the nondisclosure requirement is included in the conference report. An express right to disclose the receipt of a subpoena to a attorney is protected. There is the requirement that the Department of Justice Inspector General must audit certain past and future uses of national security letters and provide a public report on the aggregate number of national security letters issued concerning U.S. persons. But IRS agents out there in every community in America are issuing subpoenas for your records by the thousands every week. They don't have to maintain these records.

Senator Feingold and others, I am sure, would be pleased to note that the House passed a 1-year misdemeanor for knowing and willful disclosure of a national security letter with no intent to obstruct the investigation, which the Senate dropped in conference. The House of Representatives' bill said if you violate the requirement that you not disclose, and run out and tell the people whose records have been subpoenaed, you would be subject to a misdemeanor. But, oh, no, they objected to that. So now, apparently, there is no penalty if someone violates the act and tells the terrorists that you are investigating them. That ought to make people happy. We ought to feel a lot better that our liberties are being protected.

Under the conference report, recipients of a national security letter can challenge the nondisclosure requirement after 2 years, a time period where the national security interests involved will be dissipated. The Sununu bill on the floor today, that was designed to complement the conference report and to alleviate some concerns a few Senators had, allows nondisclosure to be challenged after 1 year and each and every year thereafter. Some opponents of the report wish to see sunsets placed on National Security Letters. National security letters have never been subject to sunset. They are currently governed by six permanent statutes in the code already. No abuses of national security letters have surfaced, and a New York Times article that suggests these large numbers have been issued contains many inaccuracies and that is not accurate.

I want to emphasize that. Nondisclosure is absolutely critical in national security cases. Frankly, in reality, bankers and medical doctors and others who may have records subpoenaed or requested by the national security letter, for the most part, do not desire to tell the person if the FBI agent asks them not to. But they go to their lawyers, and we have gotten so lawyerly today, the lawyer may tell them: Well, I think you have an obligation to tell this bad guy that the FBI came by and picked up his records. If you don't tell him, maybe he can sue you.

So this is a protection for the bank, for the phone company, for the doctor who gets these records subpoenaed because then he can rightly tell anybody who complains after the fact: I would have told you, but the Federal Government told me not to.

Section 215, the FISA Court business record production orders, is another matter of importance. Section 215 orders for the production of business records allows the FBI to go to the FISA Court and seek these orders. You have to go to court now and seek a judicial order of the FISA Court for ``the production of tangible things, including books, records, papers, documents and other items'' for an investigation to obtain foreign intelligence information. It doesn't allow the FBI to go out and do it on their own. They have to go to court and present evidence that would justify production--basically, a form of subpoena authority. Section 215 orders must be preapproved by a judge and cannot be used to investigate ordinary crimes or even domestic terrorism, only foreign terrorism.

Orders for the production of business records under the USA PATRIOT Act, section 215, are not and cannot be used for so-called fishing expeditions. The fishing expedition complaint is wrong--wrong--wrong-- for three reasons. First, section 215 orders are court orders that must be authorized by Federal judges prior to issuance. Judicial review will cull out fishing expedition requests. Second, section 215 orders are available only for authorized national security investigations, not your run-of-the-mill investigation, a category that certainly does not include fishing expeditions. And the conference report clarifies that the orders cannot be used for threat assessments. Third, rigorous guidelines issued by the Attorney General govern when the FBI may use a section 215 order.

There has also been uproar over the three-part relevance test. The Senate bill included an unworkable and burdensome three-part relevance test. You recall--relevance plus. I opposed it. It was not good. I steadfastly believe that it was the kind of confusion that blocks legitimate action under this law and would undermine the ability for the investigators to do what we intended to authorize them to do. The test would have compromised the ability of the Government to get section 215 orders. The language of the three-prong test was ambiguous and would inevitably have resulted in major complications in terrorist investigations.

As we saw by the attacks on 9/11, seemingly small or technical barriers can make a critical difference to the success of a terrorism investigation. That is exactly what the three-prong test would have done.

Senator Kyl, who spoke earlier this afternoon, Senator Roberts, who is chairman of the Intelligence Committee, and I sent a letter to Chairman Specter, expressing our strong concerns with the three-prong test and asking him not to include it in the conference report. He did as we suggested. The conference report retains the three-part test only as a way to prove relevance. The conference report lists the three prongs of the Senate test as ways the materials sought are presumed to be relevant.

No. 1, the records pertain to a foreign power or an agent of a foreign power; No. 2, the records are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or, No. 3, the records pertain to an individual in contact with or known to a suspected agent of a foreign power.

As Senator Patrick Leahy explained in 2001, the ranking Democrat on our committee:

The FBI has made a clear case that a relevance standard is

appropriate for counterintelligence and counterterrorism

investigations as well as for criminal investigations.

Let me just say this. Your county attorney in every county in America can issue a subpoena for your bank records, your telephone records, on the basis of relevance to an ongoing investigation.

That is how subpoenas are issued. It has always been a relevance standard. I don't see anything unusual about this at all. We provided additional protection for relevance.

The conference report also requires the application for a 215 order to include a statement of fact which shows ``reasonable grounds to believe that the records are relevant to an authorized national security investigation.'' The original PATRIOT Act simply required a showing that the records ``were sought'' for an authorized investigation. This is a Senate provision which was included in the conference report which certainly made it more difficult to obtain these national security letters, and I assume it made colleagues who have been objecting happy to see this higher burden of proof placed on the investigators. Frankly, I believe that was unnecessary.

Both the conference report and bill we are currently debating-- Senator Sununu's PATRIOT Act Amendments bill--imposed new civil rights safeguards on the use of section 215 orders contained in the PATRIOT Act as it currently exists. So by blocking the PATRIOT Act which presently exists from being reauthorized by the Conference Report, civil rights are being diminished since the report provides enhanced protection.

The conference report clarifies and makes clear that a recipient of a 215 order has an explicit right to disclose or seek an order through an attorney and to challenge the order in court. Senator Sununu's bill which we are debating today and which I am certain will pass goes a bit further. I do not know that it is critical, but I am willing to accept things that are not perfect by my standards because I know we need to reauthorize the PATRIOT Act, and this is a condition of reauthorizing it. Senator Sununu's bill lays out the process by which a person receiving a section 215 production order may challenge the legality of that order. They can file a petition with the FISA Court, and that petition is ``immediately'' assigned to a judge who, in 72 hours after the assignment, ``shall conduct an initial review of the petition.''

The conference report also retains a 4-year sunset on section 215. In other words, this provision will expire in 4 years unless reauthorized. I don't know why that is necessary, but people apparently believed it was, and so we put it in there.

The conferees added a requirement that the Justice Department institute ``minimization procedures'' limiting the retention and dissemination of information obtained through a section 215 order for certain particularly sensitive material. The FBI request for these orders must be approved by one of three top officials at the FBI: the Director, the Deputy Director, or the Executive Assistant Director. One of those three top officials in the FBI has to sign off on it if it includes library records, medical records that would identify a person, library patron lists, book sales records, firearms sales records, tax return records, or educational records. This is a Senate provision that was accepted by the conference.

The IRS agents can walk in any time and get your tax records, for heaven's sake, but we can't get a terrorist's tax records without going through the FISA Court. A DEA agent can go into a pharmacy and examine every record in there to find out how many drugs you may have bought or anybody else may have bought. The IRS can subpoena your bank records by administrative subpoena without even the approval of a Federal prosecutor. This is not any erosion of American liberties, is the only point I am making.

Again, this does not allow them to go into your house, into the desk you own at your office, and search your personal belongings. It does not allow any Federal agent to open the trunk of your automobile, to go in your automobile, open your glove compartment, and seize anything you may have that is in your personal custody and control. You still have to have a search warrant approved by a judge on probable cause. This involves materials held by third parties.

Documents which can be obtained in this fashion are limited to the types of tangible things which could be obtained under grand jury subpoena or other Federal court orders, and the FBI must craft procedures to minimize retention and dissemination of materials gathered under this provision. OK. We will try to destroy them in so many months to minimize the danger that somebody will have a file on you. I am telling you, if you like those shows on television, the real- life cold-case files, you see where the records held for 10, 15 years turn out to be the key documents in convicting some murderer 15 years down the road. I really do not like this idea that a properly obtained document or record kept as part of a confidential investigative file has to be destroyed prematurely. But that is what we have here so people's liberties won't be undermined.

Under the conference report, the Department of Justice must conduct two

audits of the FBI's use of 215 orders, enhanced congressional and public reporting is required, and the inspector general is required to conduct an audit of all section 215 requests since the passage of the PATRIOT Act. The ironic thing is if those who support a filibuster succeed in preventing a vote on the bill, these additional civil liberties safeguards won't become law.

The language about the libraries included in Senator Sununu's bill is also a concern of mine. Opponents of section 215 have tried to create the impression that the FBI is using section 215 to visit libraries nationwide to check the reading records of ordinary Americans. How often have you heard that?

Rebecca Mitchell, director of the Alabama Public Library Service, has a different point of view. She wrote me a letter on August 15 and said:

I want to personally thank you for your strong leadership

to stand on the PATRIOT Act. Our libraries should not be used

as a tool for terrorism. I know you have received negative

comments from the American Library Association on your stand,

but this is not the opinion of most librarians in our State.

Please continue to fight to keep our Nation free.

The point I tried to make was that there is no special protection for a library record which would bar a Federal terrorist investigator from obtaining those records. Your local county attorney can subpoena them the same as any Federal investigator to try to stop a terrorist.

Neither section 215 nor any other provision of the PATRIOT Act specifically mentions libraries or is directed at libraries. Nevertheless, as Director Mitchell points out, it is important that library records remain obtainable as one of the kinds of ``tangible records'' a section 215 order can reach. Intelligence or investigators may have good and legitimate reasons for extending to library/bookstore records.

I would just point out that I prosecuted a number of cases. I prosecuted one guy--they made a television show about it--and we got his records and got a search warrant and seized items he had. He had a book called ``Death Dealers Manual.'' He had a book called ``Deadly Poisons.'' That was relevant evidence to help convict him of a crime.

So we are not going to allow a prosecutor access to this information. A guy may say: I don't know anything about medicine; I have never studied it. If the prosecutor goes down and checks with the library and subpoenas the records and sees that he bought three books on medicine, that may be relevant evidence to an important case. So to say that somehow library records can't be subpoenaed as part of an investigation goes beyond the pale, frankly. But because the Library Association had a fit and they complained, we have put in special protections for libraries, virtually like the spousal privilege or the priest-penitent.

I will conclude my remarks by saying that I do remain frustrated--not at the good intentions of my colleagues. They are well intentioned. Our colleagues really want to improve liberty in America. But the truth is, they have gotten off base. We have let outside groups with agendas confuse people about this legislation--confuse them as to whether historic civil liberties are being undermined when they are not--and as a result, we have had more difficulty passing this bill than we should have.

I see the Senator from Texas is presiding. I appreciate his patience in listening to me. As a former attorney general of Texas and a former member of the Supreme Court of Texas, he is a thorough scholar in these issues. I am proud to say that though he wouldn't agree with everything I have said, but in general he agrees with my view that this act is sound. He has been a steadfast advocate for it and understands the necessity of it and that it does not undermine any of the classical liberties we as Americans take for granted.

I yield the floor.

Mr. President, I ask unanimous consent that the pending amendment be set aside so I may offer an amendment which is at the desk, amendment No. 2892.

I yield to the Senator from Nevada.

Mr. President, I ask unanimous consent the pending amendment be set aside so I may offer an amendment at the desk, No. 2892.

Mr. President, we can obviously see what is going on here when the majority leader offered those two amendments earlier. He was filling the amendment tree. That means he is trying--in fact, he is going to do everything he can, and he will succeed, if he wishes--to refuse to allow Senators to improve this bill. Those amendments are nothing more than meaningless amendments, the amendments he has offered, that have to do with the effective date of the bill. They are nothing other than an attempt to prevent me or any other Senator from trying to amend this legislation.

Not only was this a take-it-or-leave-it deal from the White House, but now the majority leader and perhaps other Senators are apparently afraid of what happens if the Senate actually does its work on this issue and has open votes on the merits of these issues.

I want everyone to know that is the game that is being played here, on a bill that has major implications for the rights and freedom of the American people. Obviously, when the majority leader talks about how urgent it is that this be passed, he is conveniently ignoring the fact that this current law is in effect until March 10, and there is no risk whatsoever that the bill would not be renewed.

I am going to speak for a few minutes about the various amendments I have filed and that the majority leader is preventing me from offering.

Amendment No. 2892

Amendment No. 2892 is the amendment that would implement the standard for obtaining section 215 orders that was in the Senate bill the Judiciary Committee approved by a vote of 18 to 0 and that was agreed to in the Senate without objection. I hope my colleagues remember that. When the majority leader fills the tree, he is not preventing some type of esoteric amendments nobody has ever seen or heard of. Every member of the Judiciary Committee already voted for that

very provision and no Senator in the entire Senate, including the majority leader, objected to that being in the Senate bill. So this is not some kind of a last-minute deal. This is something the majority leader himself never objected to. It is a reasonable amendment that every Senator in one way or another has basically supported.

Of all the concerns that have been raised about the PATRIOT Act since it was passed in 2001, this is the one that has received the most public attention, and rightly so. This is the one that is often referred to as the ``library provision.'' A reauthorization bill that doesn't fix this provision, in my view, has no credibility.

Section 215 of the PATRIOT Act allows the Government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including not just library records, but also medical records and various other types of business records. The PATRIOT Act allowed the Government to obtain these records as long as they were ``sought for'' a terrorism investigation. That is 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.

Because of the breadth of this power, section 215 became the focal point of a lot of Americans' concerns about the PATRIOT Act. These 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. And nearly every one mentions section 215.

The Government should not have the kind of broad, intrusive powers that section 215 provides--not this Government, not any government. 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 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. Not one of the amendments I am offering would threaten the ability of law enforcement to do what is needs to do to investigate and prevent terrorism.

After lengthy and difficult negotiations, the Judiciary Committee came up with language that achieved that goal. It would require the Government to convince a judge that a person has some connection to terrorism or espionage before obtaining their sensitive records. And when I say some connection, that's what I mean. The Senate bill's standard is the following: No. 1, that the records pertain to a terrorist or spy; No. 2, that the records pertain to an individual in contact with or known to a suspected terrorist or spy; or No. 3, that the records are relevant--just 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.

The conference report did away with this delicate compromise. 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.

The 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, rendering basically meaningless the three-prong test that we worked so hard to create in the Senate version of the bill.

This 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-- including the majority leader--it wouldn't make any change in the conference report on this issue at all.

So today I offer an amendment to bring back the Senate standard on section 215. It simply replaces the standard in the conference report with the standard from the Senate bill. I urge my colleagues to support this change, which we all consented to 6 months ago, and which was one of the core issues that many of us stood up for in December when we voted against cloture on the conference report.

I know that some will say they must oppose this amendment because it would disrupt a delicate agreement that has been achieved with the White House. I disagree. There is no reason we can't reauthorize the PATRIOT Act and fix section 215--in fact, there is every reason we should do so. This body has expressed its strongly held views on this issue before, and it should do so again. If this issue went to a vote in the House I'm confident we would have strong support because the House has already indicated a willingness to modify section 215 to protect the privacy of innocent Americans. That is the first amendment I wanted to offer. Let me next turn to amendment No. 2893.

Amendment No. 2893

The second one is amendment No. 2893. This amendment would ensure that recipients of business records orders under section 215 of the PATRIOT Act and recipients of national security letters can get meaningful judicial review of the gag orders that they are subject to.

Recipients of both section 215 orders and national security letters are subject to automatic, indefinite gag orders. This means both that a recipient cannot tell anyone what the section 215 order or NSL says, and that the recipient can never even acknowledge that he or she received a section 215 order or NSL. Now I understand there may very well be a need to protect the confidentiality of these business records orders and NSLs in many cases, particularly with regard to the identity of the people whose records they seek. But I do not understand why even the fact of their existence must be a secret, forever, in every case. Even classified information can undergo declassification procedures and ultimately become public, when appropriate.

So I think that meaningful judicial review of these gag orders is critically important. In fact, these automatic, permanent gag rules very likely violate the first amendment. In litigation challenging the gag rule in one of the national security letter statutes, two courts have found first amendment violations because there is no individualized evaluation of the need for secrecy.

So what does the reauthorization package do about this serious problem? Under the conference report, as modified by the Sununu bill, recipients would theoretically have the ability to challenge these gag orders in court, but

the standard for getting the gag orders overturned would be virtually impossible to meet. It is not the meaningful judicial review that the sponsors of the SAFE Act and so many others have been calling for.

Let me start with the NSL provision of the conference report. In order to prevail in challenging the NSL gag order, the recipient would have to prove that any certification by the Government that disclosure would harm national security or impair diplomatic relations was made in bad faith.

There would be what many have called a ``conclusive presumption'' the gag order stands--unless the recipient can prove that the Government acted in bad faith. We all know that is not meaningful judicial review. That is just the illusion of judicial review.

Does the White House deal address this problem? It does not. In fact, it applies that same very troubling standard of review to judicial review of section 215 gag orders.

The conference report that was rejected back in December did not authorize judicial review of the gag order that comes with a section 215 order at all. That was a serious deficiency. But the White House deal does not solve it. Far from it. Under the deal, there is judicial review of section 215 gag orders, but subject to two limitations that are very problematic. First, judicial review can only take place after at least a year has passed. And second, it can only be successful if the recipient of the section 215 order proves that the Government has acted in bad faith, just as I have described with the NSL provision.

My amendment would eliminate the ``bad faith'' showing currently required for overturning both section 215 and NSL gag orders. And it would no longer require recipients of section 215 orders to wait a year before they can challenge the accompanying gag orders.

That is not everything I would want to address with regard to this issue. I am also concerned that the judicial review provisions allow the Government to present its evidence and arguments to the court in secret. But this amendment which I would like to offer is a good solid start. At a time when the Government is asserting extraordinary powers and seeking to exercise them without any oversight by the courts, judicial review of Government assertions that secrecy is necessary more essential than ever.

We cannot face the American people and claim that overreaching by the government under the PATRIOT Act cannot happen because the courts have the power to stop it--and then turn around and prevent the courts from doing their job. The illusion of judicial review is almost worse that no judicial review at all. In America, we cannot sanction kangaroo courts where the deck is stacked against one party before the case is even filed. Obviously, I hope that my colleagues will support this very reasonable amendment, if we are given a chance to vote on it. I think many would find it quite pervasive and particularly some of the people who were part of the White House negotiations.

amendment to add nsl sunset

The third amendment I would like to offer, No. 2891, would add to the conference report one additional 4-year sunset provision. It would sunset the national security letter authorities that were expanded by the PATRIOT Act. It would be simply add that sunset to the already existing 4-year sunsets that are in the conference report with respect to section 206, section 215, and the lone wolf provision.

National Security Letters, or NSLs, are finally starting to get the attention they deserve. This authority was expanded by sections 358 and 505 of the PATRIOT Act. The issue of NSLs has flown under the radar for years, even though many of us have been trying to bring more public attention to it. I am gratified that we are finally talking about NSLs, in large part due to a lengthy Washington Post story published last year about 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.

National security letters are issued by the FBI to businesses to obtain certain types of records. So they are similar to section 215 orders, but with one very critical difference. The Government does not need to get any court approval whatsoever to issue them. It doesn't have to go to the FISA court and make even the most minimal showing. It simply issues the order signed by the special agent in charge of a field office or an FBI headquarters official.

NSLs 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.

Just as with section 215, the PATRIOT Act expanded the NSL authorities to allow the Government to use them to obtain records of people who are not suspected of being, or even of being connected to, terrorists or spies. The Government need only certify that the documents are either sought for or relevant to an authorized intelligence investigation, a far-reaching standard that could be used to obtain all kinds of records about innocent Americans. And just as with section 215, the recipient is subject to an automatic, permanent gag rule.

The conference report does nothing to fix the standard for issuing an NSL. It leaves in place the breathtakingly broad relevance standard. And the White House deal doesn't do anything about this either.

It is true that the Senate bill does not contain a sunset on the NSL provision. But the Senate bill was passed before the Post brought so much attention to this issue by reporting 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 is justified to ensure that Congress has the opportunity to take a close look at such a broad power. And let me emphasize, the sunset in this amendment would only apply to the expansions of NSL authorities contained in the PATRIOT Act, not to pre- existing authorities.

I suspect that the NSL power is something that the administration is zealously guarding because it is one area where there is almost no judicial involvement or oversight. It is the last refuge for those who want virtually unlimited Government power in intelligence investigations. And that is why the Congress should be very concerned, and very insistent on including a sunset of these expanded authorities. A sunset is a reasonable step here. It helps Congress conduct oversight of these authorities, and requires us to revisit them in 4 years. Ideally we could go ahead and actually fix the NSL statutes now, but sunsetting the expanded powers would at least be a step in the right direction.

Adding this sunset does not change the law in any way. I cannot imagine that adopting this amendment would blow up the White House deal. This is a reasonable amendment, and again I want my colleagues to have a chance to vote on it.

sneak and peek amendment

The fourth amendment that I have, No. 2894, concerns so-called ``sneak and peek'' searches, whereby the Government can secretly search people's houses. The Senate bill included compromise language that was acceptable to me and the other proponents of the SAFE Act. The conference report departs from that compromise in one very significant respect, and the White House deal doesn't address this at all. My amendment would restore the key component of the Senate compromise by requiring that subjects of sneak and peek searches be notified of the search within 7 days, unless a judge grants an extension of that time because there is a good reason to still keep the search secret. It makes no other change to the conference report other than changing 30 days to 7 days.

Let me take a little time to put this issue in context and explain why the difference between 30 days and 7 days is necessary to protect an important constitutional right.

One of the most fundamental protections in the Bill of Rights is the fourth amendment's guarantee that all citizens have the right to ``be secure in

their persons, houses, papers, and effects'' against ``unreasonable searches and seizures.'' The idea that the Government cannot enter our homes improperly is a bedrock principle for Americans, and rightly so. The fourth amendment has a rich history and includes in its ambit some very important requirements for searches. One is the requirement that a search be conducted pursuant to a warrant. The Constitution specifically requires that a warrant for a search be issued only where there is probable cause and that the warrant specifically describe the place to be searched and the persons or things to be seized.

Why does the Constitution require that particular description? Well, for one thing, that description becomes a limit on what can be searched or 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 here is the key. 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 effect to the Constitution's requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized.

Over the years, the courts have faced claims by the Government 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 causing the suspect to flee or destroy evidence. The two leading court decisions on so-called surreptitious entry, or what have come to be known as ``sneak and peek'' searches, came to very similar conclusions. They held that notice of criminal search warrants could be delayed, but not omitted entirely. Both the Second Circuit in U.S. v. Villegas and the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant must provide that notice of the search will be given within 7 days, unless extended by the court. Listen to what the Freitas court said about such searches:

We take this position because surreptitious searches and

seizures of intangibles strike at the very heart of the

interests protected by the Fourth Amendment. The mere thought

of strangers walking through and visually examining the

center of our privacy interest, our home, arouses our passion

for freedom as does nothing else. That passion, the true

source of the Fourth Amendment, demands that surreptitious

entries be closely circumscribed.

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

Section 213 of the PATRIOT Act didn't get this balance right. It allowed notice to be delayed for any ``reasonable'' length of time. What is ``reasonable''? Information provided by the administration about the use of this provision since 2001 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.

I know that the conference report requirement of notice within 30 days was a compromise between the Senate and House provisions. And so, the Senator from Pennsylvania and others will strongly oppose this amendment, if I ever get to offer it. But let me point out that the House passed the Otter amendment to completely eliminate the sneak and peek provision by a wide bipartisan margin. I hardly think the House will balk at this reasonable amendment that allows these sneak and peek reviews but says that after 7 days you have to go back and get an application for more time, or you have to give notice to the persons whose house is intruded upon.

More importantly, here is the crucial question that no one has been able to answer so far. Listen carefully to the arguments made by the opponents of the amendment and see if they answer it this time, if we ever get a chance to debate it. What possible rationale is there for not requiring the Government to go back to a court within 7 days after a sneak and peek search and demonstrate a need for continued secrecy? What is the problem here? Why insist that the Government get 30 days of secrecy, instead of 7 days, without getting an extension from the court? Could it be that they think that the courts usually won't agree that continued secrecy is needed after the search is conducted, so they won't get the 90-day extension? If they have to go back to a court at some point, why not go back after 7 days rather than 30? From the point of view of the Government, I don't see the big deal.

It amazes me to hear Senators on the floor saying 7 days, 30 days. What is the difference? This is about big government coming into your home without your knowledge and saying it doesn't matter that you are not given notice in 7 days as opposed to 30 days. I tell you that it matters to people in my State, and it would matter to me. Government shouldn't be in your house without notice except for very narrowly identified circumstances that are consistent with the court decisions that allowed the sneak-and-peek provisions in the first place. There is a big difference between 1 week and 1 month when it comes to something like the Government secretly coming into your home.

Suppose, for example, that the Government actually searched the wrong house. As I mentioned, that is 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 his house, and he might be living in fear that someone has a key or some other way to enter his house. The owner might wonder: When is the intruder going to return? Do the locks have to be changed?

I implore my colleagues to look at this issue from the point of view of an innocent person in their own home somewhere in their own home State. Why would 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 a little embarrassment for notice to be given within 7 days.

If, on the other hand, the search was successful and revealed illegal activity and notifying the subject would compromise an ongoing investigation, the Government should have no trouble at all getting a 90-day extension of the search warrant. All they have to do is walk into the court and tell the judge: Judge, we found something, and we are now keeping the place under surveillance because there is ongoing criminal activity taking place there, so give us more time before we serve the search warrant.

That is all you have to say. What is so hard about that? We all know the judges will give them that. It is perfectly reasonable.

The Senate bill is already a compromise on this very controversial provision. There is no good reason not to adopt the Senate's position. I have pointed this out repeatedly and no one has ever come to the Senate and come up with any explanation of why the Government cannot come back to the court within 7 days of executing the search. The Senate provision was what the courts required prior to the PATRIOT Act. It worked fine then. It can work now.

Let me make one final point about sneak-and-peek warrants. Do not be fooled for a minute that this power has anything to do with just investigating terrorism or espionage. It does not. Section 213 is a criminal provision that applies in any kind of criminal investigation. In fact, most sneak-and-peek warrants are issued for drug investigations. So why do I say they are not needed in terrorism investigations? Because FISA, the Foreign Intelligence Surveillance Act, can also apply to these investigations. FISA search warrants are always executed in secret and never require notice--not in 7 days, not in 30 days, not in 180 days, not ever. So

if you do not want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that adopting this amendment will interfere with sensitive terrorism investigations is false. It is false, plain and simple.

I look forward to hearing the response of the opponents on this issue. I am beginning to lose faith I will ever hear from them. But I also urge my colleagues to listen carefully: Will anyone come forward and argue convincingly that 7 days, which the entire Senate approved in July, is too short of a period of time? If not, we should adopt this amendment.

I have had the opportunity the last few minutes to describe the four remaining amendments I have filed. I have tried to explain them clearly. These are provisions that are either consistent with or the same as provisions that we approved in the Senate last year by unanimous vote in the Judiciary Committee and in a unanimous consent agreement in the Senate, which not one single Senator, including the majority leader, objected to. Or they were central to the concerns raised by so many Senators late last year. So these are obviously not extreme ideas. They are very reasonable ideas.

The idea that right after the motion to proceed was approved the majority leader would come and ``fill up the tree,'' which means preventing me from offering these amendments on the Senate floor, is a disservice to the Senate and it is a disservice to the American people. The American people are concerned about this legislation. Whether Members of this Senate want to admit it, there is a lot of concern about this legislation. The goal should be to make sure that the law enforcement in our country has the tools it needs to fight those who are involved in terrorism or spying. But the goal should also be to reassure the American people that we are not somehow trying to take away the rights and freedoms and privacy of perfectly innocent Americans. I would think all of us would want that to be the way this legislation is perceived.

The act of preventing reasonable amendments, under a limited timeframe, on provisions that have already been approved by the Senate or that so many Senators have raised concerns about, is a guarantee of causing anxiety and concern on the part of the American people that something is wrong, that somehow the power grab by this administration is out of control.

I implore my colleagues to join me in imploring the majority leader to allow us to offer these reasonable amendments. That is not only the right thing to do, it is our responsibility, as Members of this Senate.

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

Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. President, I wish to speak for a moment, first of all, about the process we are going through and then about the substance of a couple of amendments that our colleague from Wisconsin would have liked to have introduced and have a vote on it with respect to the PATRIOT Act.

Our constituents might be wondering why we are on the floor of the Senate on this Thursday afternoon discussing the PATRIOT Act. After all, haven't we passed it? Of course, the answer is, in a sense, we have passed it now several times. But there are colleagues on the other side of the aisle who have decided that rather than let the will of the Senate be carried out with adoption of the PATRIOT Act so this bill can be sent to the President so he can then sign it, thus reauthorizing the act for another 4 years and giving the tools to fight terrorism to our intelligence and law enforcement officials that, rather, they are going to make us comply with all of the procedural technicalities which they can throw in our way which accomplishes absolutely nothing but requires us to take several more days to finish the process.

What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year.

What we are seeing is taking something very important for the protection of the American people--the PATRIOT Act--and using it for what I believe are improper purposes and simply delay action in the Senate so that we will have less time to act on other items.

There is no basis for delaying the PATRIOT Act. The votes are there to go to the conference and have the House of Representatives approve it, again, as it already has, so it can be sent to the President. There are no amendments that are going to be brought up. We are going to have a final vote on Tuesday--and that is it. But rather than being able to accomplish that result today, we are having to waste all of this time.

What kind of a message does this send to our allies who are, first of all, a little skittish about some of the news leaks about our surveillance programs in which they participate, to some extent. We get good information from our intelligence service, and I suspect they are worried about the lack of control over our intelligence process. They are not sure, I suspect, what to make of this debate about the PATRIOT Act. They thought we had it resolved so they could work with it on the basis of the laws they understood. They are not sure.

I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously.

I, for one, am taking his threats very seriously--and so does the Director of the CIA and so does Ambassador Negroponte.

Our intelligence officials and the people we have asked to do this job for us take this threat dead serious. They have asked the Congress to give them the tools they need to fight this terrorist threat. Part of the tool is this PATRIOT Act, which has now been revised and reformed and amended and gone over again, and, finally, there are now three more changes to it--and it is done.

We have the ability now to simply pass it on to the President so he can sign it, and for 4 more years everybody knows exactly what we have to work with here.

Remember the 9/11 Commission following the tragedy of September 11, when we asked this commission to analyze what we could have done better and what went wrong, part of what they said was wrong was that there was confusion in our law enforcement intelligence community about what they could and should do.

In fact, legal interpretations differed so much they felt there was a wall that separated the intelligence agencies and the law enforcement agencies from even talking to each other.

One of the things the PATRIOT Act does is makes clear that there is no such wall; that at least our law enforcement and intelligence folks can talk to each other about these terrorists.

It is most distressing that we can't simply get this bill passed on to the President so that everybody knows we have it reauthorized again for another 4 years.

As I said, if there were any rationale behind this, other than simply delaying so that we can't do other business, you might have something to bite your teeth into and debate on the floor. But in truth, this thing, when it passes, is going to be overwhelming. I doubt that we will have a handful of votes against it. In fact, we may have less than a handful, which would be 5 votes against this when we vote on it. But I thought at least it would be interesting to see what some of the objectives posed by some of the most vociferous critics of the PATRIOT Act are, what those criticisms are, to examine them so we can see exactly what the complaints are about, about what the President has called an essential tool in the war on terrorism.

When you look at the suggested amendments--again, amendments which we are not going to be voting on because we have already been through that process three times and that has thankfully come to an end--I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on. One of them has to do with something that has been in existence for 40 years, called national security letters. It is essentially a subpoena for records that is just like a grand jury subpoena.

The county attorney or the district attorney goes to the grand jury and says: I think we need the following documents in order to see whether we can make our case. They write up this piece of paper, it is delivered, say, to a hotel, and it asks for the business records: We want to know everyone who checked in and out of the hotel for the last 3 days because we think maybe this person we are after may have checked into this hotel--that would verify his presence on the night of the murder, or whatever the case--so the hotel gives them the records.

There is no expectation of privacy in the records. When the hotel clerk says: Here, sign in--and he turns it over, you can see exactly everyone else who has signed into the hotel. There is nothing private about it.

These national security letters have been used for many different government agencies. If you are investigated for Medicare fraud, for example, your doctor might get one of these security letters asking for information.

Back when the security letters were authorized, we did not have terrorism. Now we have terrorism in a big way in the last decade or dozen years. Law enforcement authorities say: You know that process we have of getting business records through the security letters is a good process, and we ought to apply that to terrorism, too. Why not? If we can investigate drug dealers or bank fraud criminals or people like that with this kind of a subpoena for records, why shouldn't we be able to do it for terrorists? That is a much bigger deal.

Now for the first time our colleagues are saying maybe we should have a court process to review this. That process exists in a totally different context. If we want a much more formal procedure, there is something called a Section 215 warrant. That is court supervised. This is the sort of light version. If it is contested, of course, you have to go to court. Most of the time the records are easily given because they are not private records.

For the first time in the context of terrorism our colleagues are saying this is an invasion of privacy and we need a court to review this. My point is, it must be very confusing to law enforcement to have Congress debating something like this when there is no rationale for changing the law of 40 years that has been applied in everyday context throughout the country, and all of a sudden where we would want the most streamlined procedure, where we would care most about the cops, where we need speed because we do not know whether an attack is imminent, for example, in the situation that is much more serious, now we are saying we need to throw some roadblocks in the way of the law enforcement tool. It does not make sense.

I thought I would take two of the amendments--we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the PATRIOT Act--the kind of amendments that would be offered. It shows how unnecessary this approach is.

Let me note one other thing. There have been a lot of unnecessary amendments attached to the PATRIOT Act. It is getting to the point where I wonder whether we can really do the job, our law enforcement community can really do the job that our constituents want it to do. For example, by my count, the final bill that we will send to the President requires 12 different reports or audits of our Nation's antiterror investigators. Obviously, oversight is important. Reports to the Congress are important. But it seems to me this is overkill. Our intelligence agencies should be devoting their resources primarily to investigating suspected terrorists, not to investigating each other. All of these reports simply add to the burden they already have.

And we wonder sometimes after the fact, when a September 11 commission reports that they were too burdened to do their job, how that could possibly be. Congress sometimes can be part of the problem as well as part of the solution.

All of the changes have been negotiated and renegotiated, as I said. At some point, we need to complete the bill. There are other amendments I would like to add, but I had my chance and this is not the time to be reopening the process for yet another round of amendments. It seems to me we ought to be moving on.

I will mention this one amendment. It is actually an amendment numbered 2893 that would have been offered by the Senator from Wisconsin. This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations in the manner I discussed a moment ago. The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror. They do not do that so it can be given out to the public. The purpose of classification is to see that the information remains secret. But this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order. FISA is the Foreign Intelligence Surveillance Act. It serves no substantial interest but, as I said, can be very damaging to our national security.

Let me put this in perspective. A section 215 order--which I discussed before, which is a FISA order and is always accompanied by a nondisclosure requirement--already is judicially reviewed, as I said. There has to be a court action on it before it can be issued. And under the amendment that was offered by the Senator from New Hampshire, a third party recipient of a section 215 order also would be able to have the courts review the section 215 order after its issue, which is a second round of review. We have added that in. To my mind this is redundant and unnecessary, but that has been added. That is one of those compromises to enable us to get to this point.

Let me put this issue in perspective. A section 215 order, which provides that second round of review, is much different than a national security letter which, as I said earlier, has been around since the 1970s. They have always been accompanied by a nondisclosure requirement. In other words, when the third party is served with this subpoena that says: Would you please give us these records, you are not supposed to tell the person that a law enforcement entity is seeking the records. Obviously, you do not want to tip them off that you are investigating them. There is a nondisclosure requirement. You cannot tell the person that the Government has come asking for the records. That requirement has always been automatic, and there has never been any provision for any judicial review of that nondisclosure requirement.

The national security letters, like virtually all other subpoenas, are also not judicially reviewed before they are issued. The conference report, for the first time in the history of these national security letters, authorizes judicial review of the need for the nondisclosure of the subpoenas. That was another compromise that was added. You not only have it in the formal section 215 requirement but also in the less formal security letter process. It allows the recipient to challenge the nondisclosure requirement, and it ensures the automatic nature of the nondisclosure requirement.

Now the FBI will have to evaluate each national security letter. The nondisclosure of the NSL and the nondisclosure requirement can only apply if the FBI certifies that the public disclosure of the service of the NSL will harm national security. In other words, before it is issued, the FBI has got to have a certification that the recipient of the letter may not disclose it because to do so would be to harm national security. That certification is based upon a very solemn judgment exercised by the Attorney General.

Critics condemn this provision as giving only the illusion of judicial review. When they say that, it bears mention that what they are condemning is language that is being added to a statute that never provided any kind of judicial review before that. For over a quarter of a century there has been none whatsoever, and yet there is a complaint this judicial review is not good enough. The sponsor of the amendment argues that the standard employed for the review of the security letter and the section 215 nondisclosure requirement is too high and can never be met.

It is high, but it is very high for a reason. If a challenge is made, the FBI needs to reevaluate whether there is a continued need for the disclosure. But if the FBI certifies that disclosure of the NSL would harm national security, that reclassification is conclusive. Now, when you say ``conclusive,'' that is a very high standard.

In this respect, the proponents of the amendment are correct; that is a high standard. But it is the only way the determination can work.

Think about it for a moment. Only the FBI, the people who are investigating the matter, not individual district judges, are in a position to determine when the disclosure of classified information would harm national security. Obviously, that is not something that a Federal district judge has any expertise on. You have to have, literally, a trial to determine whether that proposition were true in each particular case.

The reason nondisclosure might be necessary should be obvious. If a suspected terrorist or his associates, for example, are funneling money through a particular bank in a city, and if that bank were to make public the fact that it had received a security letter requesting records in a terrorism investigation, that disclosure would easily tip off the terrorists and their associates that they are under investigation. You do not want to do that.

It is also important that the FBI make the final determination whether the disclosure would harm national security. And only the agents in charge of these counterterrorism investigations will be able to evaluate how the

disclosure of a particular piece of information could potentially, for example, reveal sources and methods of intelligence and who, therefore, might be tipped off as a result of the disclosure.

We are all aware of this current controversy regarding the briefing of select members of the Intelligence Committee over a particular surveillance activity involving international communications with members of al-Qaida or people suspected of being with al-Qaida. The reason not every member of the Intelligence Committee is briefed is because of what we would call ``sources'' in this case. Methods of surveillance are so secret, so classified, that it has been determined that even some members of the Intelligence Committee should not be fully briefed on exactly how this methodology works.

So you can imagine when the FBI has sources of intelligence to protect or certain methods of intelligence gathering to protect, the last thing you want is for a judge to decide that those should simply be made public.

That is why this conclusive presumption is in the law, why it is so important, and why we cannot have this section amended to open that to public disclosure of that sensitive information. Yet this amendment numbered 2893 would allow every one of the 800 Federal district judges in the country, in fact, to be their own director of national intelligence and decide for themselves whether exposing classified information would inappropriately reveal the sources and methods I discussed, whether that might tip off terrorists to what we already know about them, and whether it would harm relations with our allies who, perhaps, have provided us with the information. Obviously, that cannot be allowed. We cannot expect our allies in the war on terror to cooperate with us if we treat this sensitive information that they provide to us with anything other than the most careful consideration. And we cannot expect our agents to be successful in detecting terrorist plots if every step of the way, every time they gather information through either a security letter or the more formal section 215 process, they can be sued and forced to divulge classified information about whom and where they are looking and what methods they are using.

This amendment would do serious harm to U.S. national security. And to what end? What powerful privacy interest or civil rights interest dictates a third party asked to produce business records in its possession must be allowed to disclose the existence of the investigation or must be given access to other classified information in order to plead that matter before the judge?

When the FBI is investigating organized crime in the United States and grand juries compel testimony or require the production of records, we do not let those witnesses or the parties holding the records publicize the fact that they had been subpoenaed or publicize that there was an ongoing investigation. We recognize that secrecy is important in an organized crime investigation and it outweighs any interest that third parties might have in talking about the investigation.

Why wouldn't we recognize the same realities in a terrorism investigation, an area where the safety and security of the American people are much higher? That is the kind of amendment that would be offered. Thankfully, as I said, we decided to go forward with the process and not have any more amendments and have the vote next week which will enable us to send this bill to the President.

My point in discussing this is to demonstrate there is no reason to have further debate or amendments, and we could have gotten done this afternoon and known we had reauthorized the act for another 4 years.

The only other amendment I want to discuss is amendment No. 2892, blocking these section 215 orders even where relevance is shown. This amendment is highly problematic because it would bar antiterrorism investigators from obtaining some third party business records even where they can persuade a court that those records are relevant to a legitimate antiterrorism investigation. We all know the term ``relevance.'' It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country. Yet the author of the amendment argues that relevance is too low a standard for allowing investigators to subpoena records.

Consider the context. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code. These national security letters have existed since the 1970s, and they have always employed a relevance standard.

Why now that we are faced with a terrorism threat, and we decide this same investigative tool should be available to investigate terrorists would we impose a higher standard to get the information? If anything, you would be talking about applying a lower standard because of the importance of the threat and the fact that sometimes speed is of the essence.

As the Department of Justice Office of Legal Policy recently noted in a published report--I want to quote this--``Congress has granted some form of administrative subpoena authority to most Federal agencies, with many agencies holding several such authorities.'' The Justice Department ``identified approximately 335 existing administrative subpoena authorities held by various executive-branch entities under current law.''

As I said, 215 orders already are harder to get than regular subpoenas, even though the subject matter would suggest that perhaps they ought to be easier to get. In the case of these section 215 orders, the law requires that the FBI first seek a determination of relevance from a judge, which makes it harder to get a 215 order than it is to get any other grand jury subpoena or virtually any other kind of administrative subpoena because none of them require preapproval from a judge. Even a grand jury subpoena is not approved or reviewed by a judge or the grand jury before it is issued. It is issued directly by the prosecutor.

It is interesting; there was a recent online article in National Review Online by Ramesh Ponnuru, a very good writer and student of this issue, who made the following comments. This is a quotation. He noted that critics say:

that investigators shouldn't be able to get business records

merely by convincing a judge that the records are

``relevant'' to an ongoing terrorism investigation. Yet that

relevance standard, from Section 215 of the law, is the exact

same standard employed for discovery orders in civil

litigation, for grand-jury subpoenas in criminal

investigation, and for each of the 335 different

administrative subpoenas currently authorized by the U.S.

Code. Getting a 215 order is harder than getting a grand-jury

subpoena or almost any kind of administrative subpoena, since

judges don't have to review the latter [before they are

issued].

Again, this is the current law. So even without an amendment, which would make it even more difficult, the law we are talking about with regard to terrorism investigations makes it more difficult in a terrorism investigation to get a subpoena than in any other situation. Yet the proponents of this amendment would make it even more difficult than that.

Now, let's imagine what this means. Here is a scenario:

Let's imagine that intelligence agents have discovered that

suspected Al Qaida agent Mohammed Atta is in the United

States and that he has hired another individual to work for

him. Under the Patriot Act legislation being considered now,

it will be easier for the federal government to subpoena

records in order to make sure that Atta is paying that

individual the minimum wage than it will be to obtain records

to find out if Atta is using him to engage in international

terrorism.

That is not right. I was going to say something else. I will just say that is not right. This is the existing law. This is before we would make it even more difficult with the amendment I discussed a minute ago.

So without making further arguments on this point, I think you can see that we have girded this PATRIOT Act with levels of civil rights protection and privacy rights protection that we do not have in any other part of the code, even though the need for speed and the need for agility to get after these terrorists is, I would argue, a much more important matter than investigating Medicare fraud or bank fraud or money laundering of whatever it might be.

We have not imposed all of those civil rights or privacy protections in those sections of the code, but here we

are going to add them and make it even more difficult for the FBI and other law enforcement and our intelligence agencies to do the job we want them to do. Then, of course, if something happens, we will haul them before Congress and say: Why couldn't you get your job done? And when they say: Well, the statute was a little tough for us to comply with, we will say: That will be no excuse.

So we need to be very careful what we do in considering further amendments to the law.

Mr. President, let me conclude by saying that the other amendments that would have been offered are in the same vein, making it unnecessarily difficult for our intelligence agents and our law enforcement officers to do the job we have asked them to do.

When my colleagues and I have had before us on the floor of the Senate amendments to add armor to humvees or to have better bulletproof vests or to have other kinds of equipment or tools for them to carry out the missions we ask them to perform when we send them into harm's way, we do not hesitate long to give our military everything they need because we want them to succeed in their mission. We do not want them to be left vulnerable in any way. Why? Because we want to be protected and we want them to be protected.

Yet when it comes to giving our intelligence agencies the tools to fight terrorism, we shirk back and say: Well, we are going to do it, but first we are going to add several layers of additional requirements to make it more difficult for you to do your job.

In the law and in this fight against terrorism, we are generally not fighting with airplanes and ships and the like. This is a different kind of war. This is a war against a very secretive enemy all over the globe. There is really only one way to get to this enemy, and that is with good intelligence to find out who they are, where they are, and what they are up to.

So the equipment we are giving to them, the tools for them to fight terror are these provisions of the PATRIOT Act and FISA and the other activities that have been discussed. This is what enables them to perform their missions. We cannot load these tools up with so many restrictions and legal loopholes that it is impossible for them to do their job. If we expect them to be able to protect us, we have to write these laws in clear, understandable, fair, and effective ways, certainly protecting our civil rights. But I think I have demonstrated we have done that.

If you do not need all these protections if you are investigating bank fraud, then I would say, as the lawyers say: A fortiori. They are less necessary in an investigation of terrorism, where speed may be required, where secrecy is absolutely critical, and therefore where the kind of protections that have been offered are very problematic to these folks doing their job.

So the bottom line is this: We have a good act, the PATRIOT Act. It is going to be reauthorized for another 4 years. We have already added numerous protections of civil liberties to it. It is, therefore, quite appropriate that the time for amendments has come to an end, that we not have any more of these amendments brought before us--I think I have demonstrated the harm those amendments would do--that we get on to the job of getting this legislation reauthorized so we can say to our constituencies we were able to provide the tools to fight terrorism that will protect them and their families.

That is our charge. There is only so much we as legislators can do, but this is something we can do, and we need to get about doing it.

Mr. President, I wish to speak about the USA PATRIOT Act. As you know, the Senate has recently agreed to another temporary extension of this act. We have twice since December been in a position of having to offer, instead of permanent reauthorization, a temporary fix. Yet at a time when so many in this body are continuing to talk about security, this one piece of legislation, in my humble opinion, has been more important in terms of protecting the security of the United States than anything else we have done since September 11.

This critical law, which, of course, provides law enforcement agencies with the vital tools necessary to fight and win the war on terror, should not be allowed to expire. I, frankly, am at a loss to explain why we are spending so much time trying to get to final closure on this legislation when the merits of the legislation seem to be so obvious--primarily by providing tools to law enforcement and intelligence agencies of this country, tools that are already in broad use in other aspects of law enforcement investigations.

Unfortunately, it seems to me that there has been a certain amount of hysteria whipped up over this to cause people to have unreasonable fear and concern about civil liberties, when, in fact, the balance between security and civil liberties has been struck in an entirely appropriate way in this legislation.

We must make it a top priority of the Senate to reauthorize this legislation as soon as possible, as it would be unconscionable to compromise the safety of the American people and undermine the progress we have made since 9/11 and delay critical investigations.

An agreement reached in December between the House and Senate conferees preserved the provisions of this act which have made America safer since 9/11 while increasing congressional and judicial oversight, which should alleviate the concerns of those who believe the law enforcement tools somehow endanger civil liberties. And even recently, the White House and leaders of the House and Senate have made additional concessions in an attempt to reach a final agreement to reauthorize the PATRIOT Act.

Unfortunately, it seems that there are a few who are continuing in their effort to stop reauthorization of the PATRIOT Act, insisting on imposing their will on a bipartisan majority of the Senate, the House, and the President of the United States. The handful of diehards who continue to oppose this legislation are simply unwilling to accept the compromise that has been agreed to by both Houses of Congress, despite efforts from all quarters to try to accommodate reasonable concerns. Most reasonable people would agree

that it is a practical impossibility for each legislator to get every single thing they want out of any particular piece of legislation, but that doesn't mean the American people should be left with nothing and be stripped bare of the protections the PATRIOT Act has been so effective at delivering.

The art of compromise is, at times, a bitter pill, particularly when matters of such profound consequence as our national security and waging the war on terror hang in the balance. I personally supported leaving sections 215, 213, and other provisions of the PATRIOT Act alone. I also wanted to add administrative subpoenas to the PATRIOT Act and to add judicial review for national security letters.

I also feel very strongly about ensuring that the 9/11 Commission's recommendations with regard to risk-based funding for homeland security grant moneys are implemented and personally pushed for such a provision during these negotiations. Senator Specter made it clear to me that he would try to seek consensus but that my demands would not be met in all regards.

While I did not get everything I wanted and while I believe what I wanted was in the best interests of my country, I support this bill. I am simply unwilling to return the American people to the pre-9/11 law enforcement tools which so poorly served our national interests at that time. And while this legislation is not perfect in every regard, it represents what I believe are the best efforts of the Congress to arrive at an acceptable compromise.

The national security has been well served by the PATRIOT Act since its original passage in a way that is both consistent with our national values and the protection of civil liberties. The war on terror must be waged in a manner consistent with American values and American principles.

The hysteria over this legislation is simply hard for me to understand. The fact that people in too many instances have not focused on the hard-fought attempts to balance our security and civil liberty concerns is, I believe, a disservice to the American people. This debate does not concern a typical policy disagreement about taxes or other issues; in fact, the stakes are much higher.

The PATRIOT Act was enacted in 2001 by an overwhelming bipartisan margin--98 to 1 in the Senate and 357 to 66 in the House. At that time, Senators on both sides of the aisle agreed that this legislation struck a wise and careful balance between national security and civil liberties.

The law, to date, has had a successful track record. In addition to helping prevent any terrorist attacks in this country since 9/11 and playing such a critical role in dismantling several terrorist cells within the United States, the Department of Justice inspector general has consistently found no systemic abuses of any of the act's provisions.

I support these recent concessions that have made this bill what it is today--and one in particular. Before these changes, a recipient of a 215 order seemingly could challenge the nondisclosure obligation at any time. The new revisions make clear that a recipient cannot challenge this requirement for 1 year, and it ensures that the conclusive presumption applies to these orders as well--something that was not clear before reaching this compromise agreement.

The remaining changes seemed to me to be quite sensible; that is, recipients of a 215 order or a national security letter do not have to tell the FBI that they have or will consult an attorney or that a library is not an electronic or wire communications provider unless, of course, they happen to be such a provider.

Prior to the PATRIOT Act, we know there were barriers that seriously hindered information sharing among law enforcement agencies and intelligence agencies, and those barriers imperiled our Nation. This was described by Patrick Fitzgerald in his testimony before the Senate Judiciary Committee. I quote:

I was on a prosecution team in New York that began a

criminal investigation of Osama bin Laden in early 1996. The

team--prosecutors and FBI agents assigned to the criminal

case--had access to a number of sources. We could talk to

citizens. We could talk to local police officers. We could

talk to foreign police officers. Even foreign intelligence

personnel. We could talk to foreign citizens. And we did all

of those things as often as we could. We could even talk to

al-Qaida members--and we did. We actually called several

members and associates of al-Qaida to testify before a grand

jury in New York. And we even debriefed al-Qaida members

overseas who agreed to become cooperating witnesses. But

there was one group of people we were not permitted to talk

to. Who? The FBI agents across the street from us in lower

Manhattan assigned to a parallel intelligence investigation

of Osama bin Laden and al-Qaida. We could not learn what

information they had gathered. That was the wall.

I am confident I am not the only one who is astounded at that statement. Consider our progress in the war on terror since the PATRIOT Act's enactment: Information sharing between intelligence and law enforcement personnel has been critical in dismantling terrorist operations, including the Portland Seven in Oregon, as well as a terrorist cell in Lackawanna, NY.

It has helped prosecute several people involved in an al-Qaida drugs- for-weapons scheme in San Diego, two of whom have already pleaded guilty.

Furthermore, nine associates of an al-Qaida-associated Northern Virginia violent extremist group were convicted and sentenced to prison terms ranging from 4 years to life.

Two Yemeni citizens have been charged and convicted for conspiring to provide material support to al-Qaida and Hamas.

An individual has been convicted of perjury and illegally acting as an agent of the former Government of Iraq by a jury in January of 2004.

And the executive director of the Illinois-based Benevolence International Foundation, who has had a longstanding relationship with Osama bin Laden, pleaded guilty to racketeering and furthermore admitted that he diverted thousands of dollars from his charity organization to support Islamic militant groups in Bosnia and Chechnya.

These tools simply must remain available to those on the front lines who continue to wage the war on terror. The very safety of our Nation depends on it.

I would like to share with my colleagues--and perhaps some of them have seen this op-ed piece--a piece written by Debra Burlingame, the sister of Charles F. ``Chic'' Burlingame III, the pilot of American Airlines flight 77 which crashed into the Pentagon on September 11, 2001. This op-ed was originally published in the Wall Street Journal, and I believe it articulates precisely why this legislation must be reauthorized without delay.

I will read an excerpt, and I ask unanimous consent that the complete op-ed be printed in the Record following my remarks.

Mr. President, Ms. Burlingame writes:

A mere four-and-a-half years after victims were forced to

choose between being burned alive and jumping from 90

stories, it is frankly shocking that there is anyone in

Washington who would politicize the Patriot Act. It is an

insult to those who died to tell the American people that the

organization posing the greatest threat to their liberty is

not al Qaeda but the FBI. Hearing any member of Congress

actually crow about ``killing'' or ``playing chicken'' with

this critical legislation is as disturbing today as it would

have been when Ground Zero was still smoldering. Today we

know in far greater detail what not having it cost us.

She continues:

The Senate will soon convene hearings on renewal of the

Patriot Act--

And indeed we had those hearings--

and the NSA terrorist surveillance program. A minority of

Senators want to gamble with American lives and ``fix''

national security laws which they can't show are broken. They

seek to eliminate or weaken anti-terrorism measures which

take into account that the Cold War in its slow-moving,

analog world of landlines and stationary targets is gone. The

threat we face today is a completely new paradigm of global

terrorist networks operating in a high-velocity digital age

using the Web and fiber-optic technology. After four-and-a-

half years without another terrorist attack, these senators

think we're safe enough to cave in to the same civil

liberties lobby that supported that deadly FISA wall in the

first place. What if they, like those lawyers and judges, are

simply wrong?

Why should we allow enemies to annihilate us simply because

we lack the clarity or resolve to strike a reasonable balance

between

a healthy skepticism of government power and the need to take

proactive measures to protect ourselves from such threats?

The mantra of civil-liberties hard-liners is to ``question

authority''--even when it is coming to our rescue--then blame

that same authority when, hamstrung by civil liberties laws,

it fails to save us. . . .More Americans should not die

because the peace-at-any-cost fringe and antigovernment

paranoids still fighting the ghost of Nixon hate George Bush

more than they fear al Qaeda. Ask the American people what

they want. They will say that they want the commander in

chief to use all reasonable means to catch the people who are

trying to rain terror on our cities. Those who cite the

soaring principle of individual liberty do not appear to

appreciate that our enemies are not seeking to destroy

individuals, but rather whole populations.

She concludes:

The public has listened to years of stinging revelations

detailing how the government tied its own hands in stopping

the devastating attacks of September 11. It is an

irresponsible violation of the public trust for members of

Congress to weaken the Patriot Act or jeopardize the NSA

terrorist surveillance program because of the same illusory

theories that cost us so dearly before, or worse, for rank

partisan advantage. If they do, and our country sustains yet

another catastrophic attack that these antiterrorism tools

could have prevented, the phrase ``connect the dots'' will

resonate again--but this time it will refer to the trail of

innocent American blood which leads directly to the Senate

floor.

I urge my colleagues to heed the words of Ms. Burlingame. And today I join my voice with hers and the millions of Americans who are calling for us to do our duty and to do our utmost to protect this country and the American people.

Mr. President, I yield the floor.

Exhibit 1

[From opinionjournal.com, Jan. 30, 2006]

Our Right to Security

(By Debra Burlingame)

One of the most excruciating images of the September 11

attacks is the sight of a man who was trapped in one of the

World Trade Center towers. Stripped of his suit jacket and

tie and hanging on to what appears to be his office curtains,

he is seen trying to lower himself outside a window to the

floor immediately below. Frantically kicking his legs in an

effort to find a purchase, he loses his grip, and falls.

That horrific scene and thousands more were the images that

awakened a sleeping nation on that long, brutal morning.

Instead of overwhelming fear or paralyzing self-doubt, the

attacks were met with defiance, unity and a sense of moral

purpose. Following the heroic example of ordinary citizens

who put their fellow human beings and the public good ahead

of themselves, the country's leaders cast aside politics and

personal ambition and enacted the USA Patriot Act just 45

days later.

A mere four-and-a-half years after victims were forced to

choose between being burned alive and jumping from 90

stories, it is frankly shocking that there is anyone in

Washington who would politicize the Patriot Act. It is an

insult to those who died to tell the American people that the

organization posing the greatest threat to their liberty is

not al Qaeda but the FBI. Hearing any member of Congress

actually crow about ``killing'' or ``playing chicken'' with

this critical legislation is as disturbing today as it would

have been when Ground Zero was still smoldering. Today we

know in far greater detail what not having it cost us.

Critics contend that the Patriot Act was rushed into law in

a moment of panic. The truth is, the policies and guidelines

it corrected had a long, troubled history and everybody who

had to deal with them knew it. The ``wall'' was a tortuous

set of rules promulgated by Justice Department lawyers in

1995 and imagined into law by the Foreign Intelligence

Surveillance Act (FISA) court. Conceived as an added

protection for civil liberties provisions already built into

the statute, it was the wall and its real-world ramifications

that hardened the failure-to-share culture between agencies,

allowing early information about 9/11 hijackers Khalid al-

Mihdhar and Nawaf al-Hazmi to fall through the cracks. More

perversely, even after the significance of these terrorists

and their presence in the country was known by the FBI's

intelligence division, the wall prevented it from talking to

its own criminal division in order to hunt them down.

Furthermore, it was the impenetrable FISA guidelines and

fear of provoking the FISA court's wrath if they were

transgressed that discouraged risk-averse FBI supervisors

from applying for a FISA search warrant in the Zacarias

Moussaoui case. The search, finally conducted on the

afternoon of 9/11, produced names and phone numbers of people

in the thick of the 9/11 plot, so many fertile clues that

investigators believe that at least one airplane, if not all

four, could have been saved.

In 2002, FISA's appellate level Court of Review examined

the entire statutory scheme for issuing warrants in national

security investigations and declared the ``wall'' a

nonsensical piece of legal overkill, based neither on express

statutory language nor reasonable interpretation of the FISA

statute. The lower court's attempt to micromanage the

execution of national security warrants was deemed an

assertion of authority which neither Congress or the

Constitution granted it. In other words, those lawyers and

judges who created, implemented and so assiduously enforced

the FISA guidelines were wrong and the American people paid

dearly for it.

Despite this history, some members of Congress contend that

this process-heavy court is agile enough to rule on quickly

needed National Security Agency (NSA) electronic surveillance

warrants. This is a dubious claim. Getting a FISA warrant

requires a multistep review involving several lawyers at

different offices within the Department of Justice. It can

take days, weeks, even months if there is a legal dispute

between the principals. ``Emergency'' 72-hour intercepts

require sign-offs by NSA lawyers and preapproval by the

attorney general before surveillance can be initiated.

Clearly, this is not conducive to what Gen. Michael Hayden,

principal deputy director of national intelligence, calls

``hot pursuit'' of al Qaeda conversations.

The Senate will soon convene hearings on renewal of the

Patriot Act and the NSA terrorist surveillance program. A

minority of senators want to gamble with American lives and

``fix'' national security laws, which they can't show are

broken. They seek to eliminate or weaken anti-terrorism

measures which take into account that the Cold War and its

slow-moving, analog world of landlines and stationary targets

is gone. The threat we face today is a completely new

paradigm of global terrorist networks operating in a high-

velocity digital age using the Web and fiber-optic

technology. After four-and-a-half years without another

terrorist attack, these senators think we're safe enough to

cave in to the same civil liberties lobby that supported that

deadly FISA wall in the first place. What if they, like those

lawyers and judges, are simply wrong?

Meanwhile, the media, mouthing phrases like ``Article II

authority,'' ``separation of powers'' and ``right to

privacy,'' are presenting the issues as if politics have

nothing to do with what is driving the subject matter and its

coverage. They want us to forget four years of relentless

``connect-the-dots'' reporting about the missed chances that

``could have prevented 9/11.'' They have discounted the

relevance of references to the two 9/11 hijackers who lived

in San Diego. But not too long ago, the media itself reported

that phone records revealed that five or six of the hijackers

made extensive calls overseas.

NBC News aired an ``exclusive'' story in 2004 that

dramatically recounted how al-Hazmi and al-Mihdhar, the San

Diego terrorists who would later hijack American Airlines

flight 77 and fly it into the Pentagon, received more than a

dozen calls from an al Qaeda ``switchboard'' inside Yemen

where al-Mihdhar's brother-in-law lived. The house received

calls from Osama Bin Laden and relayed them to operatives

around the world.

Senior correspondent Lisa Myers told the shocking story of

how, ``The NSA had the actual phone number in the United

States that the switchboard was calling, but didn't deploy

that equipment, fearing it would be accused of domestic

spying.'' Back then, the NBC script didn't describe it as

``spying on Americans.'' Instead, it was called one of the

``missed opportunities that could have saved 3,000 lives.''

Another example of opportunistic coverage concerns the

Patriot Act's ``library provision.'' News reports have given

plenty of ink and airtime to the ACLU's unsupported claims

that the government has abused this important records

provision. But how many Americans know that several of the

hijackers repeatedly accessed computers at public libraries

in New Jersey and Florida, using personal Internet accounts

to carry out the conspiracy? Al-Mihdhar and al-Hazmi logged

on four times at a college library in New Jersey where they

purchased airline tickets for AA 77 and later confirmed their

reservations on Aug. 30. In light of this, it is ridiculous

to suggest that the Justice Department has the time,

resources or interest in ``investigating the reading habits

of law abiding citizens.''

We now have the ability to put remote control cameras on

the surface of Mars. Why should we allow enemies to

annihilate us simply because we lack the clarity or resolve

to strike a reasonable balance between a healthy skepticism

of government power and the need to take proactive measures

to protect ourselves from such threats? The mantra of civil-

liberties hard-liners is to ``question authority''--even when

it is coming to our rescue--then blame that same authority

when, hamstrung by civil liberties laws, it fails to save us.

The old laws that would prevent FBI agents from stopping the

next al-Mihdhar and al-Hazmi were built on the bedrock of a

35-year history of dark, defeating mistrust. More Americans

should not die because the peace-at-any-cost fringe and

antigovernment paranoids still fighting the ghost of Nixon

hate George Bush more than they fear al Qaeda. Ask the

American people what they want. They will say that they want

the commander in chief to use all reasonable means to catch

the people who are trying to rain terror on our cities. Those

who cite the soaring principle of individual liberty do not

appear to appreciate that our enemies are not seeking to

destroy individuals, but whole populations.

Three weeks before 9/11, an FBI agent with the bin Laden

case squad in New York learned that al-Mihdhar and al-Hazmi

were in this country. He pleaded with the national security

gatekeepers in Washington to launch a nationwide manhunt and

was summarily told to stand down. When the FISA

Court of Review tore down the wall in 2002, it included in

its ruling the agent's Aug. 29, 2001, email to FBI

headquarters: ``Whatever has happened to this--someday

someone will die--and wall or not--the public will not

understand why we were not more effective and throwing every

resource we had at certain problems. Let's hope the National

Security Law Unit will stand behind their decisions then,

especially since the biggest threat to us now, [bin Laden],

is getting the most `protection.' ''

The public has listened to years of stinging revelations

detailing how the government tied its own hands in stopping

the devastating attacks of September 11. It is an

irresponsible violation of the public trust for members of

Congress to weaken the Patriot Act or jeopardize the NSA

terrorist surveillance program because of the same illusory

theories that cost us so dearly before, or worse, for rank

partisan advantage. If they do, and our country sustains yet

another catastrophic attack that these antiterrorism tools

could have prevented, the phrase ``connect the dots'' will

resonate again--but this time it will refer to the trail of

innocent American blood which leads directly to the Senate

floor.

Mr. President, I suggest the absence of a quorum.