Disaster Housing Flexibility Act of 2006

Mr. Speaker, I move to suspend the rules and pass the Senate bill (S. 2271) to clarify that individuals who receive FISA orders can challenge nondisclosure requirements, that individuals who receive national security letters are not required to disclose the name of their attorney, that libraries are not wire or electronic communication service providers unless they provide specific services, and for other purposes.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on S. 2271 currently under consideration.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in support of Senate 2271, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006. On December 14 of last year, the House passed the conference report on H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005, by a strong bipartisan vote of 251-174. Last Thursday, the other body followed the bipartisan lead of this House and approved the conference report by an overwhelming vote of 89-10.

When the House Judiciary Committee unanimously reported the PATRIOT Act a month after the 9/11 attacks, I pledged to vigorously examine its implementation to ensure that enhanced law enforcement authority is required to reduce America's vulnerability that terrorism did not erode our constitutional or civil liberties.

As the historical record makes amply clear, it was the House, led by former majority leader Dick Armey and me, that forcefully insisted that much of the PATRIOT Act's expansion of law enforcement authority sunset without affirmative congressional reauthorization.

These sunsets helped complement aggressive Congressional oversight of the implementation of the PATRIOT Act. The conference report now passed by both houses represents the product of comprehensive bipartisan consideration consisting of legislative and oversight hearings, briefings, and inspector general reports and committee correspondence. This extensive record, a chronology of which I will submit for the Record, has demonstrated that the PATRIOT Act has been an effective tool against terrorists and other criminals.

At the same time, intense congressional and public scrutiny has not produced a single substantiated claim that the PATRIOT Act has been misused to violate American civil liberties. However, the conference report contained over 30 important civil liberties amendments and revisions revised to further mitigate the potential for misuse of the PATRIOT Act.

This bill includes three additional clarifications of the conference report to address concerns raised by some Members of the other body.

First, current law does not expressly provide a recipient of a section 215 order or a national security letter the

right to challenge it. The conference report clearly delineated judicial review for such challenges, including the ability of NSL recipients to challenge an accompanying nondisclosure order. S. 2271 would extend the section 215 recipients similar access to judicial review, to challenge and attach the nondisclosure order.

Second, because of national security concerns, the conference report contained language that would allow the government to ask a recipient of one of these national security orders to identify the persons to whom disclosure will be or was made. The Director of National Intelligence expressed concern that without this safeguard, a recipient could disclose the government's investigative efforts to a person with ties to hostile foreign governments or entities.

The conference report permitted the government to determine whether a request is warranted, and if the defendant has made such a request to determine whether the disclosure affected an ongoing investigation. An exception was included for information that might interfere with attorney-client relations, specifically barring the disclosure of the identity of an attorney to whom a recipient planned to disclose. This bill extends the exception to prevent the government from requesting the name of counsels with whom the recipient had already consulted.

Finally, S. 2271 clarifies current law that a library may only be subject to an NSL request if it falls under 18 U.S.C. 2516(15), which defines an electronic communications service provider as any service which provides to users thereof the ability to send or receive wire or electronic communication. This change addresses the potential for misuse alleged by critics of the legislation.

Mr. Speaker, over the last 5 years, the PATRIOT Act has been the focus of virtually unprecedented congressional and public scrutiny. Opponents of this legislation have relied upon exaggeration and hyperbole to distort a demonstrated record of accomplishment and success.

The Justice Department and other agencies have properly used the PATRIOT Act to detect, disrupt and dismantle sales in New York, Virginia and Oregon before they struck. The PATRIOT Act helped tear down the pre-9/11 wall that prevented law enforcement intelligence agencies from sharing critical information necessary to avert terrorist attacks on American soil.

It has become a critical tool of America's law enforcement arsenal and a vital deterrent against terrorist subversion. It upheld our constitutional values, and none of the provisions authorized by the conference report have been held unconstitutional.

Simply stated, the PATRIOT Act has made America safer while safeguarding our civil liberties. The conference report contained provisions to address claims that the PATRIOT Act might be misused to violate civil liberties, and Senate 2271 contains additional provisions to further allay these concerns. I urge my colleagues to support this bill and look forward to the eminent enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005 into law.

The following material is a chronology of the oversight of the PATRIOT Act from October of 2001 to November of 2005 and a listing of additional civil liberties protections contained in the conference report of H.R. 3119:

Oversight of the USA PATRIOT Act From October, 2001, to November, 2005

1. November 9, 2005, Department of Justice classified

briefing for Committee on the Judiciary staff on press

accounts of FBI use of NSLs;

2. October 25, 2005, Department of Justice classified

briefing for House and Senate Committees on the Judiciary and

Committees on Intelligence staff on press accounts of FBI use

of NSLs;

3. October 6, 2005, Department of Justice classified

briefing for Committee on the Judiciary Members and staff on

press accounts of mistakes in FBI applications to the Foreign

Intelligence Surveillance Court under the USA PATRIOT Act;

4. July 12, 2005, letter from Assistant Attorney General

William Moschella to the House Committee on the Judiciary

responding to July 1, 2005, letter regarding use of the USA

PATRIOT Act;

5. July 12, 2005, letter from Assistant Attorney General

William Moschella to the House Committee on the Judiciary

responding to May 19, 2005, letter regarding use of the USA

PATRIOT Act;

6. July 11, 2005, letter from Assistant Attorney General

William Moschella to Rep. Bobby Scott responding to questions

regarding use of the USA PATRIOT Act;

7. July 11, 2005, letter from Assistant Attorney General

William Moschella to the House Committee on the Judiciary

regarding use of the USA PATRIOT Act;

8. July 5, 2005, letter from FBI Director Meuller to Senate

Committee on the Judiciary responding to questions regarding

use of the USA PATRIOT Act;

9. July 1, 2005, letter from Assistant Attorney General

William Moschella to Rep. Bobby Scott responding to questions

regarding use of the USA PATRIOT Act;

10. July 1, 2005, letter from House Committee on the

Judiciary to the Attorney General regarding use of the USA

PATRIOT Act;

11. June 29, 2005, letter from Assistant Attorney General

William Moschella to the Senate Committee on the Judiciary

responding to April 5, 2005, letter regarding use of the USA

PATRIOT Act;

12. June 10, 2005, House Committee on the Judiciary hearing

on reauthorization of the USA PATRIOT Act;

13. June 8, 2005, House Committee on the Judiciary hearing

on reauthorization of the USA PATRIOT Act;

14. May 26, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing on Material Witness Provisions

of the Criminal Code and the Implementation of the USA

PATRIOT Act; Section 505 that Addresses National Security

Letters; and Section 804 that Addresses Jurisdiction over

Crimes Committed at U.S. Facilities Abroad;

15. May 19, 2005, letter from House Committee on the

Judiciary to the Attorney General regarding use of the USA

PATRIOT Act;

16. May 10, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing on the prohibition of Material

Support to Terrorists and Foreign Terrorist Organizations and

on the DOJ Inspector General's Reports on Civil Liberty

Violations under the USA PATRIOT Act;

17. May 10, 2005, Senate Committee on the Judiciary hearing

on continued oversight of the USA PATRIOT Act;

18. May 5, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing on Section 212 of the USA

PATRIOT Act that Allows Emergency Disclosure of Electronic

Communications to Protect Life and Limb;

19. May 3, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing on Sections 201, 202, 213, and

223 of the USA PATRIOT Act and Their Effect on Law

Enforcement Surveillance;

20. April 28, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing: Section 218 of the USA PATRIOT

Act--If It Expires Will the ``Wall'' Return?;

21. April 28, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing: Have Sections 206 and 215

Improved Foreign Intelligence Surveillance Act (FISA)

Investigations?;

22. April 26, 2005, letter from Assistant Attorney General

William Moschella to Senator Dianne Feinstein responding to

April 4, 2005, letter regarding use of the USA PATRIOT Act;

23. April 26, 2005, House Subcommittee on Crime, Terrorism;

and Homeland Security hearing: Have Sections 204, 207, 214,

and 225 of the USA PATRIOT Act, and Sections 6001 and 6002 of

the Intelligence Reform and Terrorism Prevention Act of 2004,

improved FISA Investigations;

24. April 21, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing on Crime, Terrorism, and the

Age of Technology--(Section 209: Seizure of Voice-Mail

Messages Pursuant to Warrants; Section 217: Interception of

Computer Trespasser Communications; and Section 220:

Nationwide Service of Search Warrants for Electronic

Evidence);

25. April 20, 2005, Senate Subcommittee on Terrorism,

Technology, and Homeland Security hearing: A Review of the

Material Support to Terrorism Prohibition;

26. April 19, 2005, House Subcommittee on Crime, Terrorism,

and Homeland Security hearing on Sections 203(b) and (d) of

the USA PATRIOT Act and their Effect on Information Sharing;

27. April 6, 2005, House Committee on the Judiciary hearing

with Attorney General Gonzales;

28. April 5, 2005, Senate Committee on the Judiciary

hearing on Oversight of the USA PATRIOT Act;

29. March 22, 2005, Department of Justice law enforcement

sensitive briefing for Committee on the Judiciary Members and

staff on the use of FISA under the USA PATRIOT Act;

30. September 22, 2004, Senate Committee on the Judiciary

hearing: A Review of Counter-Terrorism Legislation and

Proposals, Including the USA PATRIOT Act and the SAFE Act May

5, 2004, Senate Committee on the Judiciary hearing: Aiding

Terrorists--a Review of the Material Support Statute;

31. May 20, 2004, Senate Committee on the Judiciary hearing

on FBI Oversight: Terrorism;

32. April 14, 2004, Senate Committee on the Judiciary

hearing on Preventing and Responding to Acts of Terrorism: A

Review of Current Law;

33. February 3, 2004, Department of Justice briefing for

House Committee on the Judiciary staff on its views of S.

1709, the ``Security and Freedom Ensured (SAFE) Act of

2003,'' and H.R. 3352, the House companion bill, as both

bills proposed changes to the USA PATRIOT Act;

34. November 20, 2003, request by Chairmen Sensenbrenner

and Hostettler to GAO requesting a study of the

implementation of the USA PATRIOT Act anti-money laundering

provisions. Report was released on June 6, 2005;

35. October 29, 2003, Department of Justice classified

briefing for Committee on the Judiciary Members and staff on

the use of FISA under the USA PATRIOT Act;

36. September 10, 2003, Senate Subcommittee on Terrorism,

Technology, and Homeland Security hearing on Terrorism: Two

Years After 9/11, Connecting the Dots;

37. August 7, 2003, Department of Justice briefing for

House Committee on the Judiciary Members and staff regarding

the long-standing authority for law enforcement to conduct

delayed searches and collect business records and the effect

of the USA PATRIOT Act on those authorities;

38. July 23, 2003, Senate Committee on the Judiciary

hearing on Law Enforcement and Terrorism;

39. June 13, 2003, letter from Assistant Secretary for

Legislative Affairs at the Department of Homeland Security,

Pamela J. Turner, to the House Committee on the Judiciary

responding to questions regarding the USA PATRIOT Act;

40. June 10, 2003, Department of Justice classified

briefing for Committee on the Judiciary Members and staff on

the use of FISA under the USA PATRIOT Act;

41. June 5, 2003, House Committee on the Judiciary hearing

on the U.S. Department of Justice, including its use of the

provisions authorized by the USA PATRIOT Act;

42. May 20, 2003, House Subcommittee on the Constitution

hearing: Anti-Terrorism Investigations and the Fourth

Amendment After September 11th: Where and When Can Government

Go to Prevent Terrorist Attacks;

43. May 13, 2003, letter from Acting Assistant Attorney

General, Jamie Brown to the House Committee on the Judiciary

responding to questions regarding the USA PATRIOT Act;

44. April 1, 2003, letter from the House Committee on the

Judiciary to the Attorney General regarding use of the USA

PATRIOT Act;

45. October 9, 2002, Senate Subcommittee on Terrorism,

Technology, and Homeland Security hearing: Tools Against

Terror: How the Administration is Implementing New Laws in

the Fight to Protect our Homeland;

46. September 20, 2002, letter from Assistant Attorney

General, Daniel Bryant, to the House Committee on the

Judiciary responding to questions regarding the USA PATRIOT

Act;

47. September 10, 2002, Senate Committee on the Judiciary

hearing on the USA PATRIOT Act in Practice: Shedding Light on

the FISA Process;

48. August 26, 2002, letter from Assistant Attorney

General, Daniel Bryant, to the House Committee on the

Judiciary responding to questions regarding the USA PATRIOT

Act;

49. July 26, 2002, letter from Assistant Attorney General,

Daniel Bryant to the House Committee on the Judiciary

responding to questions regarding the USA PATRIOT Act;

50. July 25, 2002, Senate Committee on the Judiciary

hearing on the Department of Justice, including its

implementation of the authorities granted by the USA PATRIOT

Act;

51. June 13, 2002, letter from the House Committee on the

Judiciary to the Attorney General regarding use of the USA

PATRIOT Act;

52. April 17, 2002, Senate Subcommittee on Administrative

Oversight and the Courts hearing: ``Should the Office of

Homeland Security Have More Power? A Case Study in

Information Sharing;''

53. December 6, 2001, Senate Committee on the Judiciary

hearing on DOJ Oversight: Preserving our Freedoms While

Defending Against Terrorism;

54. December 4, 2001, Senate Committee on the Judiciary

hearing on DOJ Oversight: Preserving our Freedoms While

Defending Against Terrorism;

55. November 28, 2001, Senate Committee on the Judiciary

hearing on DOJ Oversight: Preserving our Freedoms While

Defending Against Terrorism; and

56. October 3, 2001, Senate Subcommittee on the

Constitution, Civil Rights, and Property Rights hearing:

Protecting Constitutional Freedoms in the Face of Terrorism.

Additional Civil Liberties Protections Contained in the Conference Report on H.R. 3199, the USA PATRIOT Improvement and Reauthorization

Act of 2005

The conference report contains the following additional

safeguards:

Requires a description of a specific target in both the

application and the court order for ``roving wiretaps,'' and

specific facts in the application that show that the target's

actions may thwart surveillance efforts--if the target's true

identity is unknown.

Requires that the FBI must notify the court within 10 days

after beginning surveillance of any new phone for all

``roving wiretaps.'' The notice must include the total number

of electronic surveillances conducted under the court's

multipoint order.

Includes new reporting requirements to Congress, including

new details about the use of ``roving'' authority.

Requires that for delayed notice search warrants that

notice of the search be given within 30 days of its

execution, unless the facts justify a later date, eliminating

the open-ended period of delay permissible under current law.

Allows for extensions of the delay period in giving notice

of a search, but only upon an updated showing of the need for

further delay. Also, it limits any extension to 90 days or

less, unless the facts of the case justify a longer delay.

Adds new reporting requirements to Congress on the use of

delayed notice search warrants.

Requires for section 215 orders, relating to investigator's

access to business records, a statement of facts showing

reasonable grounds to believe that the records or other

things sought are relevant to an authorized investigation to

protect against international terrorism or espionage. This

provides additional safeguards to the original USA PATRIOT

Act, which required the government only to certify that the

records at issue were sought for an authorized

investigation--without any factual showing.

Requires a three part test for section 215 orders that

ensures the records are sought for: a foreign power or an

agent of a foreign power; the activities of a suspected agent

of a foreign power who is the subject of an authorized

investigation; or an individual in contact with, or known to,

a suspected agent of a foreign power who is the subject of an

authorized investigation. This test combined with the newly

required statement of facts should mitigate concerns of

government ``fishing expeditions,'' while maintaining the

flexibility for legitimate terrorism investigations.

Explicitly guarantees the right for recipients of section

215 orders to consult legal counsel and seek judicial review.

Requires high level approval by either the FBI Director,

Deputy Director, or Executive Assistant Director for requests

for certain records, including library records, medical

records, educational records, and tax return records.

Limits the scope of section 215 orders to materials that

could be obtained via grand jury subpoena or a similar court

order for the production of records.

Limits retention, and prohibits dissemination, of

information concerning U.S. persons.

Requires that the DOJ Inspector General conduct two

separate audits of the FBI's use of section 215 orders that

will examine: any noteworthy facts or circumstances relating

to 215 orders, including any improper or illegal use of the

authority; the manner in which such information is collected,

retained, analyzed, and disseminated by the FBI; and an

assessment of whether the minimization procedures protect the

constitutional rights of United States persons.

Requires enhanced reporting to Congress of section 215

orders, including a breakdown of its use to obtain library

records, medical records, educational records, and other

sensitive types of records.

Requires public reporting of the aggregate use of section

215 orders.

Allows recipients of National Security Letters (NSLs) to

consult with legal counsel.

Creates an explicit right to judicial review of NSL

requests.

Permits a reviewing court to modify or set aside an NSL if

compliance would be unreasonable, oppressive, or otherwise

unlawful--this is the same standard used to modify or quash a

subpoena in a criminal case.

Provides for judicial review of the nondisclosure

requirements.

Adds a ``knowing and willfully'' standard that must be

proven before someone who discloses an NSL can be subject to

a 1-year misdemeanor offense.

Requires the DOJ IG to conduct two comprehensive audits of

the FBI's use of NSLs.

Requires the Attorney General and the Director of National

Intelligence to submit to Congress a report on the

feasibility of applying minimization procedures to NSLs to

ensure the protection of constitutional rights of U.S.

persons.

Adds a new ``sunshine'' provision that requires annual

public reporting on NSLs.

Provides for expanded congressional access to significant

FISA reporting currently provided to the Intelligence

Committees.

Includes a provision requiring the FISA Court to submit its

rules & procedures to Congress.

Creates new reporting requirements for the use of emergency

authorities under FISA.

Requires new reporting on the use of emergency disclosures

of communications information made under section 212 of the

USA PATRIOT Act.

Requires the Department of Justice to submit a report to

Congress on the Department's data-mining activities.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentleman from North Carolina (Mr. Coble), chair of the Subcommittee on Crime.

Madam Speaker, I yield myself 1 minute.

Madam Speaker, the statement we just heard is at variance with what has happened since the PATRIOT Act was enacted.

First, none of the 16 provisions that expanded law enforcement powers has been held unconstitutional by any Federal Court in the country in over 4 years of being tested. Second, the PATRIOT Act requires the Justice Department Inspector General to report to Congress twice a year on civil liberties violations that have been investigated. We have gotten those reports. There haven't been any. Third, there is a provision in the PATRIOT Act that said anybody who thinks their civil liberties are violated can sue the Justice Department and get $10,000 of statutory damages in addition to proven economic damages and attorneys fees. So far, not a dime has been paid out in judgments or settlements under this section.

This is an example of how the PATRIOT Act has been distorted by those who are opposed to it. Let us talk about the PATRIOT Act, because the PATRIOT Act has passed muster, and the facts and the court decisions show it.

Madam Speaker, I yield 3 minutes to the gentleman from California (Mr. Daniel E. Lungren).

Madam Speaker, I yield myself 30 seconds.

Madam Speaker, the national security letters were not one of the additional law enforcement powers that were passed as a part of the PATRIOT Act. They were passed in 1986, 15 years before 9/11 and the PATRIOT Act was passed.

The gentleman is correct in saying that national security letters were held unconstitutional, and what we did in this reauthorization bill is to provide a procedure to challenge them and make them constitutional, even though they weren't in the original PATRIOT Act.

Madam Speaker, reserving the right to object, I have a parliamentary inquiry.

Madam Speaker, is it in order to introduce into the Record in this body debate that has been taken in the other body?

Further reserving the right to object, let the record be clear that as manager of the bill, I do not necessarily agree with the debate that was taken between the two Senators in the other body.

But if the gentleman from Virginia wishes to insert that in the Record for its hortatory nature, I will not object.

Madam Speaker, I withdraw my reservation.

Madam Speaker, I yield 1\1/2\ minutes to the gentleman from Georgia (Mr. Gingrey).

Madam Speaker, I yield 2\1/2\ minutes to the gentleman from Florida (Mr. Stearns).

Madam Speaker, I yield myself the balance of my time.

Madam Speaker, I can't believe what I have heard from my friends on the other side of the aisle. If they succeed in defeating this bill, it is a case of be sorry for getting what you ask for. This bill actually puts more civil liberties protections into the PATRIOT Act than the conference report which has already been passed by both Houses and is ready to be enrolled and sent to the President for his signature.

So if you have your way and you vote down the bill that was authored by the gentleman from New Hampshire, Senator Sununu, you are not going to have the additional civil liberties protections that are contained in Senate 2271. That is not going to stop the conference report which you opposed in December, as is your right, from going to the President and being signed without these additional civil liberties protections.

If you are for more civil liberties protections in the PATRIOT Act, vote for this bill. If you are against them, vote against this bill. But the fate of this bill has no bearing on the fact that the conference report on the PATRIOT Act reauthorization has been cleared by both Houses and is ready to go to the White House. So think before you vote ``no.'' I am voting ``aye'' because this is a good bill, and we ought to vote on this bill based upon what is in it rather than what is in other legislation.

Madam Speaker, I yield back the balance of my time.

Madam Speaker, on that I demand the yeas and nays.

Madam Speaker, I thank the gentleman for yielding me time.

Madam Speaker, let me just first say I believe it is inappropriate to even discuss the PATRIOT Act until we have had hearings to find out what is going on with the NSA wiretaps. The PATRIOT Act could be, in fact, irrelevant if you are wiretapping at will, as the President has suggested; and we want to know exactly what is going on with those wiretaps before we do anything else. But this bill is on the floor, so we have to discuss that.

Unfortunately, I have to oppose this bill because it still continues to require no finding of individualized suspicion as a trigger to the secret record search powers in sections 215 and 505. That means that innocent Americans can have their sensitive records searched without any showing that they are an agent of a terrorist organization or scheming with terrorist organizations or doing anything illegal. Instead, this continues the problems in the original PATRIOT Act. This bill addresses several of the problems, but doesn't actually solve them.

One thing it helps is the fact that the recipient of a national security letter will be able to consult a lawyer without having to notify the government of the attorney's name. This is merely cosmetic, because that has actually been the recent practice.

In terms of these interstate letters, the bill addresses the right to challenge the gag order which applies to the secret orders under 215, as well as the national security letters; but it says that you can't make the challenge for 1 year. It codifies a 1-year period during which you can't do anything. That makes the present law worse. Presumably, you could go in right away to challenge the NSA and see the secret orders; but now you have to wait a year, and at the end of the year, you can't do anything, because all the government has to do is certify that the gag order needs to stay in effect. The judge has no discretion as to overturning that certification. So although this issue is addressed, it is actually made worse.

Finally, Madam Speaker, there is a question on the protection of privacy of library patrons in terms of the Internet service providers as to whether or not the library is an Internet service provider. The language is a little bit confusing.

Madam Speaker, I would enter into the Record a colloquy between the Senator from Illinois, Mr. Durbin, and the Senator from New Hampshire, Mr. Sununu, the chief patron of the bill. Assuming that he means what he said he meant on the floor of the Senate, we don't have a problem with it. So I would like to ask unanimous consent to introduce into the Record the colloquy between the two Senators as to what section 5 actually means.

Parliamentary Inquiry

Madam Speaker, I would like to introduce this. It represents the intent of the chief sponsor of the bill, which we agree with, although I understand the manager of the bill in the House may not.

Colloquy Between Senators John Sununu and Dick Durbin on Section 5 of

S. 2271, February 16, 2006

Mr. DURBIN. Mr. President, at this moment, I wish to

address the bill pending before the Senate, and that is S.

2271.

I commend Senator John Sununu of New Hampshire, who is here

in the Chamber. Were it not for his hard work, we would not

be here today. For weeks, while many of us were doing other

things back home, Senator Sununu was working assiduously with

the White House to find a way to address some very vexing and

challenging issues when it came to modifying the PATRIOT Act.

He has done an excellent job. I commend him and tell him that

I have enjoyed working with him over the last 2 years, where

we have crossed party lines and tried to find ways to keep

the PATRIOT Act as a tool to make America safe but also at

the same time to protect our basic liberties.

Every step of the way, as we considered changes to the

PATRIOT Act, we have been supported by our Nation's

librarians. These are wonderful men and women--

professionals--who are dedicated to the libraries across

America, which are such rich resources. I thank the

librarians of America, especially for their heroic efforts to

amend the PATRIOT Act in a responsible way and, equally as

important, to defend our Constitution.

I understand that section 5 of Senator Sununu's bill, S.

2271, will help protect the privacy of Americans' library

records. I ask the indulgence of the Chair that I might enter

into a colloquy with Senator Sununu relative to section 5.

I would like to ask Senator Sununu, through the Chair, if

he could explain to me what section 5 will accomplish.

Mr. SUNUNU. Mr. President, I am pleased to be on the floor

today and pleased to be able to see the light at the end of

the tunnel on PATRIOT reauthorization, thanks to the work of

Senator Durbin and others. We have legislation before us that

will make the adjustments to the PATRIOT Act reauthorization

conference report mentioned by the Senator from Illinois. He

specifically mentioned section 5 of our legislation. As he

began to describe, section 5 is intended to clarify current

law regarding the applicability of National Security Letters

to libraries.

A National Security Letter is a type of administrative

subpoena, a powerful tool available to law enforcement

officials, to get access to documents. It is a document

signed by an FBI agent that requires a business to provide

certain kinds of personal records on their customers to the

Government. These subpoenas are not approved by a judge

before being issued.

What we did in this legislation is add clarifying language

that states that libraries operating in their traditional

functions: lending books, providing access to digital books

or periodicals in digital format, and providing basic access

to the Internet would not be subject to a national security

letter. There is no National Security Letter statute existing

in current law that permits the FBI explicitly to obtain

library records. But, as was indicated by the Senator from

Illinois, librarians have been concerned that existing

National Security Letter authority is vague enough so that it

could be used to allow the Government to treat libraries as

they do communication service providers such as a telephone

company or a traditional Internet service provider from whom

consumers would go out and get their access to the Internet

and send and receive e-mail.

Section 5 clarifies, as I indicated, that a library

providing basic Internet access would not be subject to a

national security letter, simply by virtue of making that

access available to the public.

Mr. DURBIN. I thank the Senator from New Hampshire. It is

my understanding that most public libraries, as he explained,

offer Internet access to the public. Because of this, they

are concerned that the Government might consider them to be

communications service providers similar to the traditional

providers, such as AT&T, Verizon, and AOL.

So if I understand it correctly, your bill clarifies that

libraries, simply because they provide basic Internet access,

are not communications service providers under the law and

are not subject to national security letters as a result. I

ask the Senator from New Hampshire, through the Chair, is

that a correct conclusion?

Mr. SUNUNU. Mr. President, I absolutely believe that the

conclusion of the Senator from Illinois is correct, A library

providing basic Internet access would not be subject to a

National Security Letter as a result of that particular

service and other services that are very much in keeping with

the traditional role of libraries.

Some have noted or may note that basic Internet access

gives library patrons the ability to send and receive e-mail

by, for example, accessing an Internet-based e-mail service.

But in that case, it is the Web site operator who is

providing the communication service--the Internet

communication service provider itself--and not the library,

which is simply making available a computer with access to

the Internet.

So I certainly share the concerns of the Senator from

Illinois and others who have worked very long and hard on

this and other provisions. I think it does add clarity to the

law as he described, in addition to providing other

improvements to the PATRIOT Act as they relate to civil

liberty protections. All along, this has been about providing

law enforcement with the tools that they need in their

terrorism investigations while, at the same time, balancing

those powers with the need to protect civil liberties. I

think, in the legislation before us, we have added clarity to

the law in giving access to the courts to object to section

215 gag orders and, of course, striking a very punitive

provision dealing with counsel and not forcing the recipient

of a National Security Letter to disclose the name of their

attorney to the FBI.

All of these are improvements to the underlying

legislation, and I recognize that we had a overwhelming,

bipartisan vote today to move forward on this package. I

anticipate that we will have similar bipartisan votes in the

days ahead to conclude work on this legislation and get a

much improved PATRIOT Act signed into law.

Mr. DURBIN. I thank the Senator from New Hampshire, as

well, because that clarification is important. So if a

library offers basic Internet access, and within that access

a patron can, for example, send and receive e-mail by

accessing an Internet-based e-mail service such as Hotmail,

for example, that does not mean the library is a

communications service provider and, therefore, it does not

mean that a library could be subject to these national

security letters of investigation.

By way of comparison, a gas station that has a pay phone

isn't a telephone company. So a library that has Internet

access, where a person can find an Internet e-mail service,

is not a communications service provider; therefore, it would

not fall under the purview of the NSL provision in 18 U.S.C.

2709. It is a critically important distinction. I thank the

Senator from New Hampshire for making that clear and for all

of his good work on this bill.

Libraries are fundamental to America. They symbolize our

access to education. They are available to everyone,

regardless of social or economic status.

When we first introduced the SAFE Act, I went to the

Chicago Public Library to make the announcement. The library

was established in 1873, and for over 130 years it has

given the people of the City of Chicago the ability to read

and learn and communicate. Here is what the mission statement

says at that public library:

We welcome and support all people and their enjoyment of

reading and pursuit of lifelong learning. We believe in the

freedom to read, to learn, and to discover.

We have to ensure, in the Senate and in Congress, in the

bills that we pass, including the PATRIOT Act, that this

freedom to read, learn, and discover is preserved for our

children and our grandchildren.

Mr. President, I yield the floor and I suggest the absence

of a quorum.

Madam Speaker, as I indicated before, we need to have hearings on the NSA wiretaps. The question there is not whether or not the wiretaps can take place, but whether or not they take place in the concept of checks and balances.

Also, we need to know what kinds of wiretaps are going on, and it would be nice to have hearings on that before we consider the PATRIOT Act. But when one of the previous speakers talked about the due process involved, we have to remind people that the due process is not for the person whose records are being gathered, but due process on the library that does not have enough money to operate the library, whether or not they have a right to go out and hire a lawyer to protect somebody else's rights.

The person affected does not have any rights in this situation. It is just the library and their own good will. If they want to go out and protect somebody's rights, they have that opportunity. These are extraordinary rights, police rights and police powers; and we need to make sure that people actually understand what is going on here.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker and my colleagues, let me just begin by pointing out that in the dissent from the bill reported, there are six precise examples of when the PATRIOT Act has been abused so that no one will be able to say that they don't know where they are. They are on page 2 and 3 of the dissents that have been filed with the committee.

What we have, we have passed the conference report already. It was passed on December 14, 2005. Because of the other body, and the serious objections that they have raised, we are getting now to three other points that are

being raised. Two of the points are the basis of my remarks this afternoon.

The first I would like you to know about in S. 2271 is that amazingly enough, after all the debate, this measure that we are considering today makes section 215 intelligence orders for any tangible thing harder to challenge in court than the current conference report which allows a recipient to challenge the gag order immediately. This measure before us that we will be voting on would make the recipient wait a year, but then to make it really worse, rather than the reviewing court immediately allowing the gag order, allowing the gag as the government's carte blanche assertion of national security is conclusive.

We have added two things. We make the assertion of national security conclusive, plus we make the person that challenges it not able to immediately go to court. This is a setback.

The second thing that we do is that we add no meaningful protection for library records. That is to say that the present conference reports allow immediate challenge. What we do is that according to the National Association of Library Records, we make the protection for library records exempt only if, the national security letters, they don't offer Internet access. But the American Library Association puts the number of libraries without Internet access at nearly zero.

What we have done is create a fig leaf that really does nothing to give the meaningful protection that the library association has requested and that we tried to get through in our legislation. So it is with great reluctance that even on two out of the three measures that are before us in this very small bill, we find that this is unsupportable.

In addition, finally, what this measure doesn't do is address any of the core problems with the PATRIOT Act, the main one being that we have asked for moderate changes that would have ensured that these extraordinary new powers are directed solely at terrorists or to those associated with terrorists, and this measure fails to do that. For those reasons, I am unable to support this measure and urge that it be defeated.

There is no more difficult task we have as legislators than balancing our Nation's need for security against our citizens' civil liberties. Nearly five years after the tragedy of September 11, and in the midst of a war against terror without any clear endpoint, it is increasingly clear that we are failing in that task.

We failed when we rushed through the first PATRIOT Act while the wreck of the World Trade Center was still smoldering. We failed when we refused to address the repeated civil liberties abuses by our own government, including the warrantless surveillance of U.S. citizens. And today, we are failing yet again, by taking up S. 2771. Not only is the bill substantively dangerous, it does nothing to respond to the serious flaws in the conference report.

First, the bill is dangerous because it makes it practically impossible to challenge the gag orders that come with secretive 215 orders. It would not only make the recipient wait at least one full year before challenging a gag order, it deems government certifications concerning possible harm to national security to be ``conclusive.'' This is far worse than what is proposed by the conference report which would allow the FISA court to ensure that the law and the Constitution are not violated.

Second, the bill operates as a mere fig leaf, covering over serious problems in the underlying conference report. For example, the bill pretends to protect libraries from receiving National Security Letters, but then revokes that protection if the library offers internet access. The bill does nothing to prevent the government from using security letters to obtain confidential information having nothing to do with terrorism; nothing to protect secret physical searches of homes and offices; and nothing to rein in abusive roving wiretap orders.

If we are serious about combating terror in the 21st century, we must move beyond symbolic gestures and color coded threat levels, and begin to make the hard choices needed to protect our Nation. If we really want to prevent terrorists from targeting our citizens and our cities, we need keep assault weapons out of the hands of suspected terrorists. And if we really want to protect our people and secure our ports and other transportation hubs, the administration needs to honor the letter and the spirit of our security laws and fully fund our homeland security needs.

The legislation before us today endangers our civil liberties, while doing nothing meaningful to protect our citizens. I urge a no vote.

Mr. Speaker, I reserve the balance of my time.

Madam Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Kucinich).

Madam Speaker, before yielding to the gentleman from Virginia, I yield myself 45 seconds, because this is getting a little bit out of hand.

The assertion has been made that none of the 16 provisions have violated the law, but two Federal District Courts in New York and Connecticut have found that the national security letters themselves are illegal. Two courts, that the national security letters were held to be illegal. And to say that there have been no abuses, read pages 2 and 3 of the dissent of the Democrats on the Judiciary Committee about all of the violations that have gone on.

Madam Speaker, I yield 3 minutes to the distinguished gentleman from Virginia (Mr. Scott).

Madam Speaker, I yield myself 15 seconds.

Madam Speaker, just to keep the record straight, in 1986, national security letters were limited to terrorists. The PATRIOT Act lowered the standard to anything relevant to an investigation, and now over 30,000 are issued every year. The sham fix does not help us at all.

Madam Speaker, I yield 3 minutes to the gentleman from New York (Mr. Nadler).

Madam Speaker, I yield 3 minutes to the gentleman from Vermont (Mr. Sanders).

Madam Speaker, I yield 45 seconds to the gentleman from Virginia (Mr. Scott).

Madam Speaker, I yield myself the remainder of the time.

Madam Speaker, it has been said that there have been no abuses of the PATRIOT Act. Let me just run down what has already been reported, and probably there have been more, since we filed our report.

It was used against Brandon Mayfield, a Muslim American, to tap his phone, seize his property, copy his computer files, spy on his children, take his DNA, all without his knowledge.

It has been used to deny, on account of his political beliefs, the admission to the United States of a Swiss citizen and prominent Muslim scholar to teach at Notre Dame University. It has been used to unconstitutionally coerce an Internet service provider to divulge information about e-mail activity and Web surfing on its system, and then gag that provider from even disclosing the abuse to the public.

Because of gag restrictions, we will never know how many times it has

been used to obtain reading records from libraries and book stores, but we do know that libraries have been solicited by the Department of Justice, voluntarily or under threat of the PATRIOT Act, for reading information on more than 200 occasions since September 11.

Finally, it has been used to charge and detain and prosecute Muslim students in Idaho for posting Internet Web site links to objectionable material.

Let us not support this PATRIOT Act today.

Madam Speaker, while I will vote for this bill, I cannot be enthusiastic about it because it does very little to improve the laws it amends. And I cannot help regretting that the House is not being allowed to even consider improving the bill itself.

By refusing to allow any amendments to be considered, the Republican leadership not only is missing an opportunity to refine and clarify the language of this Senate bill, it is insisting on preventing any attempt to broaden the bill so it will do more to strike the right balance between fighting terrorism and respecting civil liberties. This is not the right way for us to do our work.

The bill in effect amends the conference report on H.R. 3199, the bill to revise and renew various provisions of the ``USA PATRIOT Act'' (more commonly called simply the ``PATRIOT Act'') that was passed by the House last year.

I voted against that conference report.

I support renewing the new tools the PATRIOT Act provided to fight terrorists. But I also thought then--and still think today--Congress should take care to protect Americans' civil liberties. And, after careful review, I concluded that the conference report did not do enough to reduce the potential that the authority it gives to the FBI and other agencies could be abused or misused in ways that intrude on Americans' privacy and civil liberties--a potential that has led more than 300 communities as well as Colorado and six other States-- governments that in all represent over 62 million people--to pass resolutions opposing parts of the PATRIOT Act.

I had hoped I could vote for the conference report, because earlier the Senate, to its credit, did a better job than the House in responding to the concerns that prompted such resolutions, while still providing ample tools that the government can use to work against the threat of more terrorist attacks, at home and abroad.

I could have supported enactment of the bill as passed by the Senate, and I hoped that the conference report would closely resemble that Senate-passed bill. Unhappily, those hopes were not fulfilled--but I took new hope when the Senate refused to cut off debate on the conference report and it became clear that there would be an effort to revise it to address concerns about its effects on civil liberties.

Specifically, I hoped that the conference report would be revised to include provisions like those in H.R. 1526, the ``Security and Freedom Ensured Act of 2005,'' or SAFE Act. I am a cosponsor of that bill, which would amend the PATRIOT Act in several important ways.

It would modify the provisions regarding ``roving wiretaps'' to require that: (1) an order approving an electronic surveillance specify either the identity of the target or the place to be wiretapped; and (2) surveillance is to be conducted only when the suspect is present.

It would revise provisions governing so-called ``sneak and peek'' search warrants to: (1) limit them to cases where immediate notice of issuance would endanger someone's life or physical safety, result in flight from prosecution or intimidation of a potential witness, or lead to destruction of or tampering with evidence sought; and (2) require notice of the warrant within 7 days (instead of just a ``reasonable period'') after execution, with extensions for additional periods of up to 21 days if the court finds reasonable cause.

It would require the FBI to have a more specific reason to seek to obtain that person's business records for foreign intelligence and international terrorism investigations.

It would provide that libraries shall not be treated as wire or electronic communication service providers under provisions granting counterintelligence access to provider subscriber information, toll billing records, or electronic communication transactional records.

It would redefine ``domestic terrorism'' to mean activities that involve acts dangerous to human life that constitute a Federal crime of terrorism. And it would add several provisions to the list subject to ``sunset,'' so that Congress would have more incentive to review their implementation and to consider possible changes.

I think the SAFE Act sets an appropriate standard for legislation to revise and reauthorize the PATRIOT Act.

Unfortunately, the conference report did not meet that standard, and even more unfortunately the negotiations that followed the Senate's refusal to end debate on the conference

report did not result in legislation that would bring the conference report into line with the ``SAFE'' Act.

Instead, those negotiations resulted in the bill now before the House, on which the only choice allowed by the Republican leadership is ``yes'' or ``no.''

The bill would make some revisions in the conference report. Specifically, it would--(1) allow recipients of a production order under Section 215 of the PATRIOT Act to ask a judge of the special court established by the Foreign Intelligence Surveillance Act (FISA) to modify or quash the ``gag rule'' that bars disclosure of the order; (2) end the rule that recipients of a Section 215 order or national security letter (NSL) must name any attorney consulted about the order or NSL; and (3) clarify that libraries, the services of which include offering patrons access to the Internet, are not subject to NSLs, unless they are functioning as electronic communication service providers.

However, a challenge to the gag rule could not be brought until a year after an order or NSL is issued, and the bill would establish as conclusive a government certification that a waiver may endanger national security unless it was made in bad faith.

At best, these are very minor improvements in the conference report. And the language of the bill is not without ambiguity on several points--which is why the Republican leadership should have allowed consideration of clarifying amendments.

But, unfortunately, both the House and the Senate have approved the conference report and it is ready to go to the President to be signed into law. So, the choice now before the House is whether to pass this bill or whether we instead will allow the conference report to become law without even these minor improvements.

And on that question, I think our country is better served by enactment of this inadequate and incomplete bill than by its defeat-- and so I will vote for it.

Madam Speaker, I would just say to this side, this bill has gone through so many iterations, and so many times we have looked at this. It includes 30 additional civil liberties safeguards. And, you know, I admit that your fighting against this bill has probably improved it a little bit.

But at this point, we have done so much to help it. I think it is a very good bill. I commend the author, Mr. Sensenbrenner, for his patience all during this process.

These new civil liberty safeguards include allowing recipients of search requests or national security letters to seek legal counsel for appealing the decision to the FISA court and mandated reporting to the public and Congress on the use of national security letters, data- mining and delayed-notice search warrants.

This is a vigilant protector of civil rights and national security, and it is the right balance. It is critical that we pass this bill today. I would say in passing that part of the PATRIOT Act was a cargo amendment that I included. I thank the chairman for allowing me to do that.

In Florida alone, local and State agencies joined together and developed a unified strategy for prevention and enforcement against cargo theft, resulting in about a 25 percent decrease in cargo thefts. Unfortunately, my colleagues, the FBI estimates, and these are only estimates because we do not have any way to track this information, overall national loss from cargo theft remains at almost $6 billion annually.

The interagency cooperation must be expanded from the State level to include nation-wide enforcement. Cargo theft imperils our Nation's security, and data indicates profits from cargo theft often go to organized crime or to terrorist activities.

So for that reason, for 2 years I have been working on this amendment, which is included as part of the PATRIOT Act, to, first of all, combat this crime by increasing mandatory minimum sentencing and directing consolidation of cargo theft trend data--simple collection of this cargo theft trend data into the federal Uniform Crime Reporting system, so in fact that system we have a better understanding of

it, and we can coordinate between different law enforcement agencies.

These are vital steps to fight this growing nation-wide threat, and I am pleased to have it included in the PATRIOT Act.

I ask my colleagues to realize the amount of work that has gone into this bill. It is absolutely necessary we pass it. I urge my colleagues to vote for it.

Thank you, Mr. Speaker and Mr. Chairman for your efforts to pass this critical legislation.

Our founding fathers knew our young Nation faced dangerous security challenges from its amorphous and expansive border and aggressive European powers. With that in mind, Thomas Jefferson wrote, ``The price of freedom is eternal vigilance.''

The situation confronting us today mirrors that of our founders. Our border is even larger and more difficult to control. With additional points of entry at every airport, prohibiting entry of those intent on doing harm is even more complex. Advanced technologies allow individuals across the oceans to coordinate attacks within our cities. This is an eventuality impossible for our founding fathers to foresee, and yet necessary for us to combat. We must keep pace with the changing environment. The PATRIOT Act equips us to do that by breaking down communication barriers between law enforcement and intelligence agencies, a weakness identified by the 9/11 Commission.

In Florida, law enforcement increased interagency cooperation with impressive results. In 2001, local and state agencies joined together and developed a unified strategy for prevention and enforcement against cargo theft, resulting in a 25% decrease in cargo thefts. Unfortunately, the FBI estimates overall national loss from cargo theft remains more than $6 billion annually. Interagency cooperation must be expanded from the state level to include nationwide enforcement. Cargo theft imperils our national security, and data indicates profits from cargo theft often funds organized crime or terrorist activities. For two years, I have worked to pass legislation combating this crime by increasing mandatory minimum sentences and directing consolidation of cargo theft trend data into the federal Uniform Crime Reporting system to better coordinate enforcement activities. These are vital steps to fight this growing nationwide threat, and I am pleased they were included in this PATRIOT Act reauthorization.

As we debate these amendments to the PATRIOT Act, I hear echoes of another founding father's words. Benjamin Franklin's assertion that, ``They who give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety,'' resounds as an admonition to those of us standing in this chamber to ensure proper oversight and protect civil liberties.

This legislation includes 30 additional civil liberties safeguards. These include: allowing recipients of search requests or National Security Letters to seek legal counsel for appealing the decision to the FISA Court, and mandated reporting to the public and Congress on the use of National Security Letters, data mining, and delayed notice search warrants.

As vigilant protectors of national security, and critical guardians of civil liberties, with full realization of the immediate threat we face, I call upon my colleagues to vote in favor of this bill. Due diligence has been observed . . . investigated . . . executed . . . and critiqued. Now it is time to pass this Act.