Fourth Amendment Restoration Act

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 President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, nearly 10 years after the attacks of September 11, 2001, every one of us in the Senate knows America continues to face threats of terrorism. Our allies know this, as well. The President's dogged pursuit and success earlier this month against Osama bin Laden does not mean we can become complacent or less vigilant. We must remain vigilant and ensure the men and women of our law enforcement and intelligence agencies have all the appropriate tools necessary to protect our Nation and the American people. But as every Vermonter knows, tools are only useful if they are regularly checked and maintained. Otherwise they become blunt instruments that can do harm, rather than accomplish the job.

Congress recognized this basic notion in 2001, when we first wrote the USA PATRIOT Act. I worked with the then-Republican House majority leader, Dick Armey to include sunsets on certain surveillance authorities in the bill. Even though we had vastly different political philosophies, we both agreed we had to have sunset provisions. In 2006, when Congress reauthorized the USA PATRIOT Act, I worked to ensure that certain sunsets were renewed, and added audits on the use of powers with the potential to unnecessarily intrude on the privacy of Americans. We should not give a blank check to anybody--whether it is a Republican or Democratic administration. We are, after all, Americans who believe in our individual liberties.

Having granted the Government broad authority to gather vast amounts of information about the daily lives of Americans, I wanted to do what we could to ensure that unfettered information gathering did not occur at the expense of Americans' basic constitutional rights and civil liberties. The sunsets and audits provide Congress an opportunity to examine whether the PATRIOT Act tools are being used appropriately, and if not, to sharpen, refine, or restrain those tools accordingly.

The audits we added in 2005 or 2006 proved to be very helpful because they identified that there were abuses in the way the PATRIOT Act was being used, specifically with respect to national security letters and the use of ``exigent letters.'' Without this oversight, we probably never would have found out about those abuses. But we found out about them and we worked with the FBI to correct those matters.

That brings us to today. The Senate has the opportunity to reexamine and redefine key PATRIOT Act provisions, and I think we should take that opportunity to make improvements to our

current law. That is why I have led the Senate Judiciary Committee to diligently consider these matters through a series of hearings and meetings. The committee responded by reporting improvements, both last year and again this year, through bipartisan legislation. They are good measures, and we have worked to ensure that they would not compromise the effectiveness of our law enforcement and intelligence capabilities. In fact, much of the language was derived after consultation with the administration, including the intelligence community.

The Attorney General and others have repeatedly assured us that the measures to enhance oversight and accountability--such as audits and public reporting--would not sacrifice ``the operational effectiveness and flexibility needed to protect our citizens from terrorism'' or undermine ``the collection of vital foreign intelligence and counterintelligence information.''

In fact, the Attorney General has consistently said the bill passed out by the Senate Judiciary Committee struck ``a good balance'' by extending the PATRIOT Act authorities while adding accountability and civil liberties protections. For additional detail and legislative history, I refer Senators to the Senate report on the bill reported by the Senate Judiciary Committee this year, Senate Report No. 112-13.

I ask unanimous consent that a December 9, 2010, letter from the Attorney General to me making these points be printed in the Record, along with a February 19, 2010, letter from the Director of National Intelligence to House leaders.

Unfortunately, the bill now before the Senate merely extends the expiring authorities to June 1, 2015. Regrettably, these authorities have not been refined since 2006. If that remains the case through the extensions that are contemplated by this bill, it will amount to 9 years of this law without any legislative improvement. I think most of us understand that we can do better. The amendment I have filed seeks to change that by improving the PATRIOT Act.

I appreciate the efforts made by the majority leader to craft a compromise. I am sorry that the Republican leadership in Congress has insisted on an extension of authorities without any improvements. The amendment I have filed and wish to offer along with Senators Paul, Cardin, Bingaman, Coons, Shaheen, Wyden, Franken, Gillibrand, Harkin, Durbin, Merkley, Boxer, and Akaka, makes significant improvements to current law, promotes transparency, and expands privacy and civil liberties safeguards.

I ask unanimous consent to have a sectional analysis of the amendment printed in the Record.

One of the improvements Congress should make is to repair a constitutional infirmity in the current law. Three years ago, in Doe v. Mukasey, the U.S. Court of Appeals for the Second Circuit found that the nondisclosure provision of the statute authorizing issuance of national security letters was constitutionally defective. If we do not make a change, that constitutionally defective part of the national security letter provision would remain. As part of the comprehensive set of reforms in the bill reported favorably by the Judiciary Committee, I proposed a simple statutory fix that would enable the FBI to obtain the information it needs, while addressing the constitutional concerns. In fact, this proposal has never been controversial. In fact, during the last Congress, Senator Sessions and Senator Bond, the ranking Republicans on the Senate Judiciary and Intelligence Committees, cosponsored a bill incorporating the very legislative remedy I proposed.

This is a straightforward matter that needs to be fixed. The underlying bill does not fix the problem; our amendment would. I trust Senators would not want to proceed to vote on an unconstitutional law, one that violates our fundamental charter as a nation and, of course, the liberty of all Americans. No one who claims to honor the Constitution should proceed in so cavalier a manner. If we are to restore the constitutional underpinning of the NSL authority, the Senate should adopt this needed improvement.

I am also troubled by the refusal of the Republican leadership to agree on periodic audits on the use by the government of PATRIOT Act surveillance authorities. When I speak of the Republican position, I want to mention that this is not uniform within the Republican Party, as there are many Republicans who believe we should have these audits. Basic transparency and accountability are vital to ensuring that the government does not overstep its legal authority. We grant many authorities to our government, but we should do so with the confidence that if the Government oversteps its authority, Congress has the power to bring it back in line. In fact, it is only because of the audits that were mandated by the 2006 PATRIOT Act reauthorization bill that the American public became aware of some of the abuses and misuses of the national security letters, which were significant.

Without that public accountability and congressional oversight, the FBI would not have made improvements to its system of tracking NSL issuance. Because of those audits, we are more confident today that FBI agents are following proper procedures for obtaining private information about Americans--rather than improperly using ``exigent letters'' to circumvent the rules, or using Post-it Notes to keep track of records. Yet the underlying bill omits audits and public reporting; our amendment includes important audit requirements and public reporting to provide accountability and protect Americans' rights.

No one can seriously contend that audits by the inspector general of past operations present any operational concerns to law enforcement or intelligence gathering. Audits do not interfere; they provide accountability and ensure that government follows the rules.

Mr. President, you and I and 98 other Members of this body have to follow the rules. Certainly, those in law enforcement should have to follow the rules, as well. These audits have been demonstrated to be vital oversight tools, and they should be incorporated into the law. The language in our amendment is the product of more than a year and a half of extensive negotiations with Republicans and Democrats, the intelligence community, the Department of Justice. This year, the Senate Judiciary Committee bill won the support of Senator Lee. Last Congress, a virtually identical bill received the votes of Senators Kyl and Cornyn and was reported favorably by the Senate Judiciary Committee to the Senate. The bipartisan amendment we seek to offer is a reasonable package of reforms that preserves the ability of the government to use the PATRIOT Act surveillance tools, while promoting transparency, accountability, and oversight.

I have often said that the Senate should not shirk its duty to reexamine carefully and critically the provisions of the PATRIOT Act. We should consider ways to improve the law consistent with our core constitutional principles. That is what I have tried to do. That is what Vermonters expect. I intend to vigilantly guard Americans' privacy and civil liberties, while doing all I can to keep all Americans secure. That is what we expect in Vermont, and I must assume that is what we expect in the other 49 States. Without a single improvement or reform, without even a word that recognizes the importance of protecting the civil liberties and constitutional privacy rights of Americans, the underlying bill represents a missed opportunity. Let us provide our law enforcement and intelligence professionals with the tools they need and give these professionals the security and certainty they need to protect our Nation. But let us also at the same time faithfully perform our duty to protect the constitutional principles and civil liberties upon which this Nation was founded and on which the American people depend.

The vast majority of the 300 million Americans in this great country are law-abiding, honest men and women. We should protect against arbitrarily lumping them all into the category of potential lawbreakers, or enabling the government to search homes or businesses without proper reason. We fought a revolution in this country to stop that from happening, and it is no different today.

One of the things that has kept us so strong as a nation is our ability to protect the individual rights of all Americans. We can go after the lawbreakers, just as we got Osama bin Laden, while at the same time protecting the principles of our country. We must not let the terrorists win by compromising our own rights and liberties in this country. The terrorists who seek to harm us would certainly take away from all of us--women and men alike--the constitutional rights we hold dear. We must not allow that.

The American people expect us both to protect our rights and to keep us safe, and I believe our amendment does just that. That is why I hope all Senators will support the Leahy-Paul amendment.

Exhibit 1

Washington, DC, December 9, 2010.

Hon. Patrick J. Leahy,

Chairman, Committee on the Judiciary, U.S. Senate,

Washington, DC.

Dear Chairman Leahy: This responds to your letter of March

17, 2010, which asked the Department of Justice to consider

implementing administratively certain enhanced civil

liberties protections that were included in S. 1692, the USA

PATRIOT Act Sunset Extension Act, as reported by the Senate

Judiciary Committee.

In my letter of November 9, 2009, I expressed strong

support on behalf of the Department for the bill as reported,

which would reauthorize several important Foreign

Intelligence Surveillance Act (FISA) authorities while

enhancing protections for civil liberties and privacy in the

exercise of these essential national security tools.

The bill would reauthorize section 206 of the USA PATRIOT

Act, which provides authority for roving surveillance of

targets who take steps that thwart FISA surveillance; section

215 of the USA PATRIOT Act, which provides authority to

compel production of business records and other tangible

things with the approval of the Foreign Intelligence

Surveillance Court (the FISA Court); and section 6001 of the

Intelligence Reform and Terrorism Prevention Act, which

provides authority to target with FISA searches or

surveillance non-United States persons who engage in

international terrorist activities but are not necessarily

associated with an identified terrorist group. Earlier this

year, Congress acted to extend the expiring authorities until

February 28, 2011. As that date approaches, I strongly urge

that Congress again take action to ensure that these

provisions remain in force.

Assuming these authorities are reauthorized, the Department

has determined that many of the privacy and civil liberties

provisions of S. 1692 can be implemented without legislation.

Indeed, in a number of instances, we have already taken steps

to do so. I am confident that these measures will enhance

standards, oversight, and accountability, especially with

respect to how information about U.S. persons is retained and

disseminated, without sacrificing the operational

effectiveness and flexibility needed to protect our citizens

from terrorism and facilitate the collection of vital foreign

intelligence and counterintelligence information.

National Security Letters

Your letter seeks our response regarding several matters

related to National Security Letters (NSLs): notification to

recipients of NSLs of their opportunity to contest the

nondisclosure requirement; issuance of procedures related to

the collection, use and storage of information obtained in

response to NSLs; retention of a statement of specific facts

that the information sought is relevant to an authorized

investigation; and increased public reporting on the use of

NSLs.

You will be pleased to know that as of February 2009, all

NSLs are required to include a notice that informs recipients

of the opportunity to contest the nondisclosure requirement

through the government initiated judicial review. In most

cases, this notice is automatically generated by the NSL

subsystem. Domestic Investigations and Operations Guide

(DIOG) 11.9.3.E. The FBI also will ensure that in any case in

which a recipient challenges a nondisclosure order, the

recipient is notified when compliance with the order is no

longer required. Thus far, there have been only four

challenges to the non-disclosure requirement, and in two of

the challenges, the FBI permitted the recipient to disclose

the fact that an NSL was received. If and when the volume of

such requests becomes sufficiently large that solutions

beyond ``one-off' notifications are required, the FBI will

develop appropriate policies and procedures to notify the

recipient when non-disclosure is no longer required.

I also am pleased to report that I approved Procedures for

the Collection, Use and Storage of Information Derived from.

National Security Letters on October 1, 2010, and these

procedures have been provided to the Judiciary and

Intelligence Committees. The FBI's current practice is

consistent with the procedures and the FBI is working on

formal policy to implement them. In addition, DOJ and ODNI

will shortly complete work on a joint report to Congress on

NSL ``minimization'' as required by the PATRIOT

Reauthorization Act of 2005.

As to the information retained internally in connection

with the issuance of NSLs, it is current policy for the FBI

to retain a statement of specific facts showing that the

information sought through NSLs is relevant to an authorized

investigation. DIOG Sec. 11.9.3.C.

The Department appreciates the desire of the Committee for

enhanced public reporting on the use of NSLs. Accordingly,

although the FBI cannot provide information regarding

subcategories of NSLs in a public setting, it will continue

to report publicly the aggregate numbers of NSLs on an annual

basis and will evaluate whether any additional information

can be publicly reported.

Section 215 Orders

Your letter also raises a number of matters related to

section 215 orders. You seek assurances that the government

will not rely on the conclusive presumption in section 215

and will present the FISA Court with a complete statement of

facts sufficient to show relevance of the tangible things

requested to an authorized investigation. It is current FBI

practice to provide the Foreign Intelligence Surveillance

Court with a complete statement of facts to support issuance

of an order. The FBI is reviewing the DIOG to determine

whether changes need to be made to reflect this practice.

With respect to section 215 records that contain bookseller

records, or are from a library and contain personally

identifiable information about a patron of the library, we

are prepared to require a statement of specific and

articulable facts as would have been required under S. 1692,

and to notify Congress should it become necessary to change

that practice.

You ask the Department to issue policy guidance providing

that certifications accompanying applications for section 215

nondisclosure orders must include an appropriately thorough

statement of facts that sets forth the need for

nondisclosure. I am pleased to report that this is current

FBI practice, and the FBI is reviewing the DIOG to determine

whether revisions should be made to reflect this practice.

You also ask the Department to institute guidelines to

require court-approved minimization procedures for section

215 orders and pen register and trap and trace (PR/TT)

devices. Minimization procedures are already required by

statute in relation to section 215 orders. 50 USC

1861(b)(2)(B). The proposal to extend this requirement to PR/

TT orders is intended to apply only to certain intelligence

collection activities. Procedures governing these operations

are currently in effect, having been proposed by the

government and approved by the FISA Court.

Finally, you ask the Department to consider providing an

annual unclassified report on the use of FISA authorities and

the impact on privacy of United States persons. I believe

that providing greater transparency regarding the U.S.

government's exercise of FISA authorities is an important

objective, and will show the care taken by officials to

implement and comply with constitutional and statutory

requirements to protect the privacy of United States persons.

Although the Department has concerns that there may be little

additional information that can be provided in an

unclassified format and that such unclassified information

could be unintentionally misleading, we are prepared to work

with the committee and our partners in the Intelligence

Community to determine whether there is a way to overcome

these difficulties and make additional information publicly

available regarding the use of these authorities.

Taken together, I believe these measures will advance the

goals of S. 1692 by enhancing the privacy and civil liberties

our citizens enjoy without compromising our ability to keep

our nation safe and secure.

I hope this information is helpful. The Department stands

ready to work with Congress to ensure that the expiring FISA

authorities are reauthorized in a timely way.

Sincerely,

Eric H. Holder, Jr.,

Attorney General.

I suggest the absence of a quorum.

Would my colleague yield for a question?

It seems to me the Senator has laid out the case for why there needs to be a thoughtful debate about the PATRIOT Act and what is necessary to strike the key balance between fighting terrorism ferociously and protecting our liberties.

I am interested in what my colleague thinks about the proposition of how you have a thoughtful debate on these issues, when there is secret law where, in effect, the interpretation of the law, as it stands today, is kept secret. So here we are, Senators on the floor, and we have colleagues of both political parties wanting to participate. Certainly, if you are an American, you are in Oregon or Colorado, you are listening in, you want to be part of this discussion. But yet the executive branch keeps secret how they are interpreting the law.

What is the Senator's sense about how we have a thoughtful debate if that continues?

Well said.

Mr. President, before my colleague leaves the Chamber, I wished to tell him what a welcome addition he has been to the Intelligence Committee. I have served on that committee for 10 years. We have had excellent chairs--first, Senator Roberts, then Senator Rockefeller, Senator Feinstein.

So we continue to try to look for bipartisan support for trying to strike that balance between collective security and individual liberty. I am struck both by the clarity of your statement and the fact that those who are going to vote on these amendments and the American people who are listening in tonight ought to be able to get, in a straightforward, easy-to-access fashion, how the executive branch is currently interpreting the PATRIOT Act.

The fact is, law professors give assignments to their students to write analyses of the PATRIOT Act. The Congressional Research Service actually has an analysis out. But it is not possible to get the official interpretation of how the U.S. Government frames this law as far as the operations are so essential for our country. The Senator has laid it out very well. It is a pleasure to serve with him on the Intelligence Committee.

Mr. President, let me sum up with what this issue has come down to, to me.

These are dangerous times. If you go into the Intelligence Committee several times a week, as Senator Udall and I do, you come away with the indisputable judgment that there are threats to the well-being of this country, that there are people who do not wish our citizens well. In these dangerous times, the sources and methods of our antiterror operations absolutely must be kept secret. That is fundamental to the work of the intelligence community--keeping the sources and methods of those who serve us so gallantly secret and ensuring that they are as safe as possible.

But while we protect those sources and methods, the laws that authorize them should not be kept secret from the American people. That is what this is all about--whether the laws that authorize the operations that are so essential, which have been passed by the Congress--that their interpretation should be kept secret from the American people. I call it ``secret law.'' I want to say to this body, yes, we need secret operations, but secret law is bad for our democracy. It will undermine the confidence the American people have in our intelligence operations.

You might recall that it was only a few years ago, during the Bush administration, that they secretly reinterpreted the warrantless wiretapping statutes to say that it was possible to wiretap our people without a warrant. When it came out, it took years to sort that out, with the executive branch and the Congress working together. I don't want to see that happen again. So that is why I have joined Senator Udall in these amendments, and we hope we can get bipartisan support for what we are trying to do and especially ensure that the official interpretation of the PATRIOT Act, an important intelligent statute, is made public to the American people, and I think it can be done in a way without jeopardizing our sources and methods.

One of the reasons Senator Udall, I, and others feel so strongly about this is--and Senator Udall touched on this--that this is a time when Congress should finally say we are not just going to keep kicking the can down the road. That is what has been done again and again over the last decade. The PATRIOT Act was passed a decade ago, during a period of understandable fear, having suffered in our Nation the greatest terrorist attack in our history. So the PATRIOT Act was born out of those great fears.

It seems to me that now is the time to revisit that and ensure that a better job is done of striking the balance between fighting terror and protecting individual liberty. Unfortunately, every time over the last decade there has been an effort to do just that--revisit this and strike a better balance--we have had the same pattern; we have said we just have to get it done quickly and we really don't have any time to consider, for example, the thoughtful ideas Senator Udall has mentioned. I just don't think it is time now to once again put off a real debate on the PATRIOT Act for yet another always-distant day.

There is an irony about what this is all about, and that is that Senators are going to want to consider the amendments of Senator Udall--and I believe Senator Paul is here, and others who care strongly about this. It is awfully hard to have a thoughtful debate on these specific amendments, whether it is the Leahy amendment, the Paul amendment, the Udall amendment, or the ones we have together, if, in fact, you cannot figure out how the executive branch is interpreting the law.

An open and informed debate on the PATRIOT Act requires that we get beyond the fact that the executive branch relies on the secret legal interpretations to support their work, and Members of the Senate try to figure out what those interpretations are.

Here are the rules. If a U.S. Senator wants to go to the Intelligence Committee--and I think Senator Udall touched on this--the Senator can go there and get a briefing. Many Members of Congress, however, don't have staff members who are cleared for those kinds of briefings. Under Senate rules, it is not possible for Senators to come down here and discuss what they may have picked up in one of those classified briefings.

I just don't think, with respect to the legal interpretation, that is what the American people believe we ought to be doing. The American people want secret operations protected. They understand what sources and methods are all about and that we have to have secrecy, for example, for those in the intelligence community to get the information we need about sleeper cells and terrorist groups and threats we learn about in the Intelligence Committee. But that is very different from keeping these legal interpretations secret.

In my view, the current situation is simply unacceptable. The American people recognize that their government can better protect national security if it sometimes is allowed to operate in secrecy. They certainly don't expect the executive branch to publish every detail about how intelligence is collected. Certainly, Americans never expected George Washington to tell them about his plans for observing troop movement at Yorktown. But Americans have always expected their government to operate within the boundaries of publicly understood law. As voters, they certainly have a right to know how the law is being interpreted so that the American people can ratify or reject decisions made on their behalf. To put it another way, Americans know their government will sometimes conduct secret operations, but they

don't believe the government ought to be writing secret law.

The reason we have felt so strongly about this issue of secret law is that it violates the trust Americans place in their government and it undermines public confidence in government agencies and institutions, making it harder to operate effectively. I was on the Intelligence Committee, before Senator Udall joined us, when Americans were pretty much stunned to learn the Bush administration had been secretly claiming for years that warrantless wiretapping was legal. My own view was that disclosure significantly undermined the public trust in the Department of Justice and our national intelligence agencies. Our phones were ringing off the hook for days when the American people learned about it. The Congress and executive branch had to retrench and figure out how to sort it out.

I certainly believe the public will be surprised again when they learn about some of the interpretations of the PATRIOT Act. Government officials cannot hope to indefinitely prevent the American people from learning the truth. This is going to come out, colleagues. It is going to come out at some point, just as it came out during the Bush administration about warrantless wiretapping. It is going to come out. It is not going to be helpful to the kind of dialog we want to have with the American people, an open and honest dialog, to just continue this practice of secret law.

The reason I am offering or seeking to offer this amendment with Senator Udall, Senator Merkley, and other colleagues with respect to changing the practice of secret law is that we have raised this issue numerous times--on the Senate floor, in correspondence, in meetings with senior administration officials--and I have been joined in the past by other Senators, and we talked about it with respect to the problem in the news media. But the problem persists and the gap between the public's understanding of the PATRIOT Act and the government's secret interpretation of it remains today. Once information has been labeled ``secret,'' there is a strong bureaucratic tendency--it almost gets in the bureaucratic chromosomes to keep it secret and not revisit the original decision.

So what Senator Udall and I and colleagues seek to do is correct this problem. We seek to offer an amendment that states that it is entirely appropriate for particular intelligence collection techniques to be kept secret but that the laws that authorize these techniques should not be kept secret and should instead be transparent to the public. We seek to offer an amendment that states that U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public's understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public.

So under this proposal, the Attorney General and Director of National Intelligence would--and we note this--provide a classified report to the congressional intelligence committees. It makes it clear that intelligence collection continues to go forward, and our amendment would simply require the Attorney General to publicly lay out the legal basis for the intelligence activities described in the report. The amendment specifically directs the Attorney General not to describe specific collection, programs, or activities, but simply to fully describe the legal interpretations and analyses necessary to understand the government's official interpretation of the law.

Let me close--I see colleagues waiting to speak--and say that we can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used, but I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means. All that Senator Udall and I seek to do, along with other colleagues, is to restore some of that openness and honesty in an area where it is now needed. I hope colleagues on the floor of the Senate and in the Obama administration will join in that effort.

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

Mr. President, I rise today to speak in opposition to the proposed reauthorization of the expiring provisions of the PATRIOT Act incorporated in S. 1038. I have to tell you, I find reauthorization especially troubling since we have waited until the last minute and are now being told we must rush this bill through the Senate of the United States.

There are a number of PATRIOT Act provisions that are permanent, and they remain in place to give our intelligence community important tools to fight terrorism. But there are three controversial provisions we are debating, commonly known as roving wiretap, lone wolf, and business records. I have to tell you, at least from my point of view--and I think there are other Senators here who agree with me--they are ripe for abuse, and they threaten Americans' constitutional freedoms.

As I start my remarks at the onset, I want to state that I firmly believe, as we all do, that terrorism is a serious threat to our great country, the United States, and we have to be focused like no other time in our history in seeking to protect our people, the American people.

I sit on the Senate Armed Services Committee and the Senate Intelligence Committee. On those two committees, much of my attention is centered on keeping Americans safe, both here and abroad. I recognize that despite bin Laden's death--which we all celebrate because justice was delivered--we still live in a world where terrorism is a serious threat to our country, our economy, and to American lives.

Our government does need the appropriate surveillance and antiterrorism tools to achieve these important goals--indeed, many of the PATRIOT Act's provisions which I support and have made our Nation safer since those devastating attacks on that day we will always remember, on 9/11, we know that for a fact. But the problem we confront today is there are three provisions we are debating that fail to strike the right balance between keeping us safe, while protecting the privacy rights of Coloradans and all Americans.

Instead, these three provisions are far too susceptible to abuse by the Federal Government, even in the name of keeping us safe from terrorism. I do not say this lightly, but my concerns about some of these provisions have only grown since I have been briefed on their interpretation and their implementation as a member of the Intelligence Committee.

Let me share some examples. Currently, the intelligence community can place wide-ranging wiretaps on Americans without even identifying the target or the location of such surveillance. That is one concern. Second concern. The intelligence community can target individuals who have no connection to terrorist organizations. A third concern I have is they can collect business records on law-abiding Americans who have no connection to terrorism. We ought to be able to at least agree that the source of an investigation under the PATRIOT Act should have a terrorist-related focus. If we cannot limit investigations to terrorism, my concern is, where do they end? Is there no amount of information our government can collect that should be off-limits? I know Coloradans are demanding that we at least place commonsense limits on government investigations and link data collection to terrorist- related activities.

If we pass this bill to extend the PATRIOT Act until 2015, it would mean that for 4 more years the Federal Government will continue to have unrestrained access to private information about Americans who have no connection to terrorism, with little to no accountability as to how these powers are used.

Again, I wish to go back because we all agree the intelligence community needs effective tools to combat terrorism. But we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency democracy demands.

The three controversial provisions I have mentioned can be much better balanced to protect our people. Yet it seems to me that many of my colleagues, many of our colleagues, oppose any changes. By making the PATRIOT Act provisions I have outlined permanent, we would be, in effect, preventing debate on them ever again.

To travel that path would be to threaten constitutional and civil liberties we hold dear in this country. That is not the right path. Let me be clear. I do not oppose the reauthorization of these three provisions of the PATRIOT Act, but I do aim to bring forward some commonsense reforms that will allow us to strike an important balance between keeping our Nation safe, on the one hand, while also protecting privacy and civil liberties.

Toward that goal, I have worked side by side with my colleagues in coming up with commonsense fixes that could receive bipartisan support. Senator Wyden from Oregon has filed an amendment, which I have cosponsored, that would require the Department of Justice disclose to Congress the official legal interpretation of the provisions of the PATRIOT Act. While I believe our intelligence practices should be kept secret, I do not believe the government's official interpretation of these laws should be kept secret.

I have also filed my own amendments to address some of the problems I see with the three expiring provisions. The first amendment I have filed is bipartisan with Senator Paul of Kentucky, who is on the floor, and Senator Wyden, who has joined as well. Our amendment would modify the roving wiretap authority under section 206 of the PATRIOT Act.

Specifically, our bipartisan amendment would require intelligence agencies to identify either the target or the place to be wiretapped. They currently do not have to do so. I believe that when seeking to collect intelligence, law enforcement should at least have to identify who is being targeted.

I have also filed an amendment to address the so-called ``lone wolf'' provision which currently allows the government to conduct wiretap surveillance on individuals, even when that person has no connection to a government or a terrorist organization.

This amendment would simply require that should the intelligence community use the ``lone wolf'' provision, that Congress simply be notified--again, a safeguard that is not in place as we stand here today. Without safeguards like that, how do we in this body conduct our constitutional duties of oversight?

Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of business record materials that can be collected under section 215 of the PATRIOT Act. This amendment would still allow law enforcement to use the PATRIOT Act to obtain such records but would require these entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Right now, law enforcement can currently obtain any kind of records. In fact, the PATRIOT Act's only limitation states that such information has to be related to any tangible thing. That is right. As long as these business records are related to any tangible thing, the U.S. Government can require businesses to turn over information on all their customers, whether or not there is any link to terrorism.

Yes.

The Senator from Oregon has put his finger on why it is so important to have a debate on the floor and not rush these provisions to the House because of a deadline that I think we can push back. We can, as you know, extend the PATRIOT Act in its present form a number of other days or a number of weeks in order to get this right.

But the Senator from Oregon makes the powerful point that the law should not be classified--as far as its interpretation goes. Of course, we can protect sources and methods and operations, as we well should. Both of us serve on the Intelligence Committee. We are privy to some information that should be classified. But we have come to the floor to make this case because of what we have learned on the Intelligence Committee.

I thank the Senator for his question. I look forward to his comments in a few minutes. The Senator from Oregon, in effect, points out that these are just a few of the reform ideas we could debate. But without further debate on any of these issues, this or any other administration can abuse the PATRIOT Act and could actually deny us, as Members of Congress, whether in this Congress or future Congresses, the opportunity to fulfill our oversight responsibilities on behalf of the American people.

I voted against the original passage of the PATRIOT Act in 2001, and I plan to vote against the reauthorization of the expiring provisions this week, unless we implement some reforms that will sensibly restrain these overly broad provisions. Simply put--again, to make the point that the Senator from Oregon made so importantly--I believe Congress is granting powers to the executive branch that lead to abuse and, frankly, shield the executive branch from accountability.

It has been 10 years since we first passed this law, and there has been very little opportunity to improve the law. I resist this rush to again rubberstamp policies that threaten the very liberty we hold dear. I recently supported a short-term extensions of the expiring provisions before us as a bridge to take time and debate and amend the PATRIOT Act and its controversial provisions.

But we were notified--unfortunately, a few days ago--that we would be voting on a 4-year extension of these expiring provisions. That is not the way to assure Americans that we are diligently considering these important public decisions.

In Federalist 51, James Madison, whom we venerate, who was the author of many of the documents that structure the way in which we organize and operate our democracy, wrote: ``In

framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.''

The bill before us does not live up to that standard. I believe it seriously risks the constitutional freedoms of our people. We need to strike a better balance between giving our national security and law enforcement officials the tools necessary to keep us safe, while not damaging the very Constitution we have sworn to support and defend.

By passing an unamended reauthorization, we are assuring that Americans will live with the status quo for 4 more long years. I believe this bill may well be a lost opportunity to improve the balance between our security and our civil liberties. That is not the result that our Founding Fathers envisioned, and it is not a result that our constituents want.

For these reasons, if the PATRIOT Act provisions are not amended, I plan to vote no on the motion to invoke cloture and on passage of S. 1038. Before I yield the floor, I wish to make one last historical reference.

Ben Franklin, one of our Founding Fathers, said, compellingly and presciently: ``A society that would sacrifice essential liberties for short-term security deserves neither.''

I think that is the question before us. There is a way forward. There is a way to keep the PATRIOT Act in place to protect our national security but also to protect our essential liberties. But in order to do that, we have to have a chance to debate and pass these important amendments.

I yield the floor.

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

Mr. President, I am going to speak a little bit about the PATRIOT Act, and then do I have to have consent to do anything else other than that?

OK. I ask unanimous consent that I be able to speak about two issues.

I just want to acknowledge the hard work of the chairman of the Intelligence Committee and the chairman of the Judiciary Committee on the PATRIOT Act and to state I am on an amendment Senator Leahy has authored which has bipartisan support. I think Senator Leahy's amendment puts a couple of checks and balances in this bill that I think are essential. But I hope we do not have delays because delays would cause trouble for law enforcement people and for the work we are doing to make sure we continue making progress against those who would harm this country.

I fully agree with the statements we have the balance of security and liberty, and I think the Leahy amendment goes a long way toward that. But, again, we need to give law enforcement the tools they need.

House Budget

Mr. President, as we look at what is ahead for us this week, it is not only the PATRIOT Act, but we also are going to be looking for votes on a couple of different budget proposals, and I want to spend some time talking about the Republican budget that passed the House that was originally authored by Representative Paul Ryan. It sort of got to be known as the Ryan budget, but let's be very clear about this: It is no longer the Ryan budget. It is the Republican budget.

This is why I say this. Out of all the Republicans in the House--and there are a lot of them over there; they run the place; well over 100-- every one of them voted for this budget except for, and on our side, not one Democrat.

So let's be clear what a budget is. I served on the Budget Committee in the House and in the Senate. A budget is a very important document, whether you write it in your own home for your own family or you write it in the Senate of the United States. Why? Because in a budget you are looking at all your resources and what your priorities are.

If you have an issue with spending--which a lot of us have in our homes, as well as having it right here; we know that; and certainly in my State--this is when the rubber meets the road and you have to say: What is important to us and what is less important?

The questions you ask when you write a budget around here are: Are our children important? The answer is, yes. Is it important we have clean air to breathe? For me, absolutely. Should the water be pure? Should we make sure the environment is protected? Yes. Should we have a transportation system so we can move people and goods in this century and be the economic world leader? Yes. That is an investment. We go through the budget piece by piece and we decide what is crucial.

Of course, we need a strong military. Having said that, some of us believe it is time to wind down the two wars we are in in Afghanistan and Iraq that is costing us $12 billion a month. We can use those funds back home and still keep the kind of counterterrorism forces we must keep, I believe, in the region and bring that money home.

There is a lot of talk, a lot of words are thrown around about how to balance a budget. I have to say, I was fortunate enough to be here, thanks to the good people of my State, during the Clinton years, and we had similar issues. What were the issues? We were running in the red. We had a deficit, we had a debt, and we had to make sure the economy kept growing in a robust fashion. Do you know what we did? We sat around and said: These are the investments that are important to us.

Today I would argue it is still education, it is infrastructure, it is the environment, it is clean energy. Those are what will move us forward. Over here are the issues where we look out and say: How can we get some revenue? One of the ways is what the Democrats said the other day. We said it is time to end corporate welfare for the biggest oil companies in the world that are--listen to this--two, three, and four on the Fortune 500 and are paying a lower tax rate than a nurse. Can I say that one more time? These big multinational oil companies that are charging us an arm and a leg are paying a lower tax rate than a nurse or a truckdriver or a firefighter in an effective tax rate. That is the truth. But yet and still, the power of those special interests looms over this Chamber, and we were not able to end that corporate welfare and start to reduce this deficit.

So there are places to go to reduce the deficit. I say, start by eliminating corporate welfare for the people who do not need it. Start by asking billionaires and multimillionaires to pay their fair share. Then we do not have to hurt the people of this country, the great middle class of this country, the children. But every day in every way, that is what these battles are about.

So today I want to talk about the Republican budget and just look at it from the standpoint of Medicare and look at it from the standpoint of seniors and, more specifically, look at it from the standpoint of women on Medicare who make up 56 percent of those on Medicare.

Thank goodness the people in this country are tuning in to this debate. They are tuning in. A lot of what we say here just flies over the country and no one pays attention. It is complex, it is wonky, and the rest. This is an easy one. The Republican budget kills Medicare as we know it. Pretty simple. People are asking themselves across this Nation: Do they want to kill Medicare as I know it?

Senator Mikulski, who has just arrived on the Senate floor, has organized the women. In the next 5 minutes I will summarize what I said and turn to her.

The Republican budget is a disaster for seniors and for those on Medicare. It is worse than a disaster. Newt Gingrich said, 15 years ago: Let Medicare wither on the vine. That means starving it. The Republican budget just kills it outright. They lost patience with that idea. The Republican House-passed budget brings a devastating cost to seniors for Medicare.

Let me show you the cost. Listen to this: The average income of senior women in this country in a year is $14,430. The health care cost they will have to pay under the Ryan budget is almost all that money, $12,500. So the Ryan Republican budget devastates Medicare and says to a senior woman, who makes $14,000 a year, that her health care costs are going to cost her $12,000.

What is she going to do with the other $2,000? Well, that would be probably, if she is fortunate, maybe 3 months' rent; in California, 1 month's rent. Then what does she do? Starve? I will tell you what she will do. She will not have health coverage.

This is America under the Republican vision? Going back to the days where our senior citizens had no dignity? I just cannot imagine it. I cannot imagine it.

The woman earns $14,000. She is supposed to spend $12,000 on health care. Forget it. She is not going to do it. Who in their right mind would ask a woman--a senior woman, who worked and played by the rules, who more than likely is a widow, who is living off Social Security--who in their right mind would ask her to face double--double--the cost of health care she now pays? I will give you the answer. House Republicans. That is what they voted for. I am not making it up. This is what they voted for.

Now you have people running away from it, running toward it. They do not know which way to go on it. But do you know what. When we vote, I hope they run far away from this because this is a disaster.

Let me show you another chart. This Republican budget ends Medicare as we know it, and it takes the benefit away from the senior and gives it straight to this guy. Who is this guy? He is very happy. Behind him is a chart that says: ``Health Care Profits.'' On the other side it talks about the CEO of the company and his income. The House Republican budget takes the benefit away from the senior and gives it straight to the insurance company. Imagine. Do you know what this guy makes, the average CEO of a health insurance company? Mr. President, remember, I told you the average senior woman makes $14,000 a year. He makes $12.2 million a year. Oh, hooray for the Republicans. They are taking a benefit away from a woman who has lived by the rules, who has raised a family and stood by that family, and in her golden years they take away her money and they give it to this fat cat over here. It makes me ill. But I better watch out because the next thing you know, they will take away my health care, and where will I go?

Profits in these companies are up 41 percent from the previous year. Every once in a while a political party stands for something that shows who they are, and I think we are seeing it here. They voted to continue corporate welfare for the biggest multinational oil companies that are just running to the bank, and their CEOs make more than this guy by a few million. Now, this week, we are voting on their budget, which gives more to the CEO of an insurance company and steals it away from the average senior woman.

The last chart I am going to show is this one: There is a health care benefit in place for senior citizens who are on Medicare. By the way, I was very disturbed when we voted for it because in that bill, at the insistence of the Republicans, we told Medicare they cannot negotiate for reasonable drug prices, and that is the way it went down. It was very sad.

Having said that, we have a benefit for senior citizens now. One of the leaders in trying to make sure they get their full benefit has been Senator Stabenow, who is joining us now in the Chamber.

So I will close with this: What we did in our health care reform budget is to say that seniors will now be covered for basically all of their health care costs. The Republican budget cancels that out, and they now say seniors have to pay for all of their prescription drugs. Even with their insurance, there will be this period of time: the uncovered benefit called the doughnut hole. People call it different things. That means immediately--if the Republican budget passed now--my seniors in California, who are in that category getting help on their prescription drugs, 400,000 of them, would have to pay $9,000 more over the next decade--$9,000 more--for their prescription drugs.

Mr. President, I have given you just a bit of the picture of what the Ryan budget does. I have just focused on the Medicare piece. That whole budget--the Republican budget, started by Ryan, embraced by the Republicans--is a disaster for seniors, for women, for children, and it is a hot time in the old town tonight for big CEOs of health insurance companies. That is what it is, and we should bring it down.

I am happy to now yield for Senator Mikulski, who will have the time in her own right.

I say to Senator Mikulski, thank you very much for your leadership on this issue.

Thank you, Mr. President, and thank you so much to our dean of the delegation, our dean of the women Senators, who has not only been here the longest but has been the strongest advocate, the strongest consistent voice for women, for seniors, and for children that we have had in our country. We thank you for that and for bringing us together and your leadership in giving us the opportunity to come and talk about what are very serious ramifications of the budget passed by the House of Representatives.

Let me first start--I want to talk about Medicare because that has the biggest impact, but let me say that as we look at the budgets that have been proposed by the House, by House Republicans this year, the current budget as well as next year's budget that was passed, we are seeing attacks on women and children, from prenatal care forward to nursing homes at the end of life.

With my hat on as chair of the Agriculture Committee, we oversee the nutrition programs for the country, and I was absolutely appalled that the largest cuts that were proposed as we were negotiating the budget for this year in the Department of Agriculture was the WIC Program-- Women, Infants and Children--prenatal nutrition for moms who are pregnant and healthy foods for moms and babies as they move forward through their first year of life and beyond. It is hard to believe that would be the No. 1 cut, the largest cut in the Department of Agriculture budget, but that was the original proposal from this year. Now we go forward and we look at the budget that was actually passed for the coming year by the Republican House, and it is really astounding when we look at the priorities.

The Republican budget essentially ends Medicare. It eliminates Medicare as we know it. Folks have said to me: Oh, they really do not mean that; they really are not going to do that. Yes. They passed that. It is not just a proposal someone had; they actually passed it as an intact insurance plan.

Medicare has been a wonderful success story for our country. Social Security and Medicare together have been great American success stories, lifting a generation of older Americans, the majority of them women, out of poverty and allowing them to be healthy longer in life, a generation of people, a generation of women, because the majority of women--particularly as we look at people of older age, the majority of people on Medicare are women.

I think about my own mom at 85 going strong and the blessing to watch her on Mother's Day be able to play with my two grandchildren--they are the most beautiful grandchildren in the world--3-year-old Lily and 1- year-old Walter, and to have my mother still be healthy because of access to health care at age 85, that is a success story. That is a gift we have all joined together as a country to give to our families, to older Americans, to our parents and grandparents and to future generations. That gift would be eliminated, that ability to have Medicare, and most of that elimination would be, unfortunately, an attack on women.

Seniors will pay double. The amount they will pay under the plan passed by

the House is $6,359 more than they currently pay now. Really, what does that mean? Well, right now under Medicare, the current system in copays and deductibles and so on for the average senior is about $6,000, $6,154. Under the Republican plan passed by the House, that would double--more than double.

What does that mean to the average women who is retired? Well, the average woman senior has an income of $14,430--$14,430--and under the Republican plan her health care costs would be $12,500. I don't know about you, Mr. President, but the idea of living on roughly $2,000 for the year, for your rent or mortgage or food or clothing or gasoline-- certainly not gasoline, given that the price of gas is impossible. It is absolutely impossible. And this is what is coming for the average woman who is retired, over age 65, under the plan passed by the House of Representatives.

Now, why would they be doing this? Why would they be doing this? Well, unfortunately, it is to continue to allow them to provide tax breaks for the wealthiest Americans, those earning over $1 million a year, and they add more tax breaks in their budget while they are cutting Medicare, and it also protects the special perks for special interests such as the oil companies.

The reality is this: We know there is a huge budget deficit we have to tackle. We also understand that people are living longer and there is work we need to do around both Medicare and Social Security. We have already begun that process in health reform--lengthening the solvency of Medicare for a number of years, taking away overpayments for for- profit insurance companies to save dollars, and focusing on prevention, which saves $500 billion over the next 10 years in Medicare, lengthens the trust fund, and does not cut benefits to seniors. It does not eliminate Medicare. It does not eliminate other insurance plans. It strengthens it for the future. That is one way to go.

But our colleagues in the other House, the Republicans, said: We need to balance the budget, so let's start by eliminating Medicare as we know it. Let's start there, doubling the cost for the average senior, most of whom are women.

We said: Well, there are a lot of choices about where to start to balance the budget. Let's start with the top five oil companies that right now are earning the largest corporate profits in history and still get taxpayer subsidies, some of which started almost 100 years ago when it probably made sense--over 100 years ago--when oil prices were $17 a barrel. Now they are over $100 a barrel--the largest corporate profits ever. They still get taxpayer subsidies.

People in my State are scratching their heads as they are paying higher prices out of one pocket and, as taxpayers, are subsidizing the prices out of the other pocket. Let's start with the billions of dollars that are certainly no longer needed by an industry that is doing extremely well. Let's take away those taxpayer subsidies as a place to start to balance the budget. Let's not start with the tens of millions of people who currently get health care through Medicare, most of whom are women.

The Republican plan goes even further because it also attacks and dramatically cuts and weakens Medicaid, most of which is for low-income seniors in nursing homes, and 77 percent of the people in nursing homes or long-term care facilities are women. Again, 77 percent of those in nursing homes or long-term care facilities who are using Medicaid to help them are women. Again, from prenatal care in the beginning of life to what happens to seniors at the end of life, women in nursing homes across the board are being attacked on women's health care. That makes absolutely no sense.

Certainly those are not the values I believe in--the values we believe in as a country. Certainly those are not the values the people in Michigan have. Starting to balance the budget by going back to seniors, women, and middle-class families who are already taking hit after hit in this economy is not fair. It is certainly not the place I am going to vote to start or I know our Democratic majority will start.

We are going to have an opportunity very soon--in the next day or two--to say yes or no about this plan that was passed by the House, the plan that eliminates Medicare as we know it and puts an insurance company bureaucrat between you and your doctor. Every woman on Medicare would be put into a situation where an insurance company bureaucrat would, once again, be back between her and her doctor as she tries to get the care she needs.

In my judgment, the Republicans' plan has its priorities upside down. Their plan to eliminate Medicare as we know it is good for insurance companies, no question about it. Every single woman would have to go back to a private insurance company, and then the insurance company would get a subsidy at that point. It may be good for insurance companies, but it is bad for seniors, for taxpayers, and certainly bad for American women.

I encourage and implore our colleagues on the other side of the aisle to join with us in saying no and supporting Medicare--the great American success story that it is--and saying no to the efforts to eliminate Medicare as we know it, saying no to the Republican budget, which puts insurance company bureaucrats between you and your doctor. Let's say yes to other areas where we can reduce the deficit, without hurting middle-class families and seniors in this country.

It is my great pleasure to yield for a champion for women's health care and for the State of New Hampshire, Senator Jeanne Shaheen.