Floor Statements

Mr. President, I ask unanimous consent that the Armed Services Committee be discharged from further consideration of and the Senate now proceed to S. Res. 385.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. President, I ask unanimous consent that the Senate proceed to the consideration of S. Res. 413, which was submitted earlier today.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. President, I ask unanimous consent that the Senate proceed to the consideration of S. Res. 414, which was submitted earlier today.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. President, I ask unanimous consent that yesterday's action on S. Res. 410 be vitiated, that the resolution be agreed to, that the technical amendment to the preamble which is at the desk be agreed to, and that the preamble, as amended, be agreed to.

Mr. President, I understand there is a bill at the desk that is due for a second reading.

In order to place the bill on the calendar under the provisions of rule XIV, I object to further proceeding.

I ask unanimous consent that the Senate immediately proceed to executive session to consider the following nomination on today's calendar, Calendar No. 566. I further ask unanimous consent that the nomination be confirmed, the motion to reconsider be laid upon the table, the President be immediately notified of the Senate's action, and the Senate then return to legislative session.

Mr. President, I ask unanimous consent that the order with respect to S. 295, the China currency bill, be modified to reflect a date no later than September 29, 2006, or the last day of the second session of the 109th Congress, whichever is earliest, and that all other provisos remain in effect.

Mr. President, on behalf of the majority leader, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m. on Thursday, March 30. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and the Senate proceed to a period of morning business for up to 1 hour with the first 30 minutes under the control of the Democratic leader or his designee and the final 30 minutes under the control of the majority leader or his designee; further, that following morning business the Senate resume consideration of S. 2454, the border control bill, as under the previous order.

Today, by an overwhelming vote, we passed the lobbying bill. We now have turned to another important piece of legislation, the border control bill. We will be working on this bill for the remainder of the week and into next week. Under an agreement we entered this afternoon, tomorrow we will have more debate on the bill and Senator Specter will offer his substitute amendment at noon. Votes are expected tomorrow, and we will alert everyone when a vote is locked in for a certain time.

On behalf of the majority leader, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order, following the remarks of Senator Durbin for up to 30 minutes.

Mr. President, I have been allocated 10 minutes to speak on the Wyden amendment.

I seek to use that time.

I assume Senator Inhofe will have time after I conclude my 10 minutes and I ask unanimous consent to that effect. He is on the other side of this issue.

The Wyden amendment provides a new advantage for those who want bigger and more expensive Government. Senators who want time to study a bill before granting consent would have to put their names in the Record as objecting to it even though they may quickly decide they do not have an objection to the bill.

First, the Senator from Oregon stated that this amendment--and this is a good example of what happens in the Senate--that this amendment was being blocked by a secret hold. But there was no secret hold. The leadership of the Senate knew that I had an interest in participating in the debate, but I had a meeting at the White House this morning and so I asked if they could accommodate that and set the debate at a time I could participate. That apparently was worked out.

Under the Senator from Oregon's amendment, I would have had to submit a written request to the majority leader in order to participate in the debate, but I was at the White House and that was not very practical. Is telling my leader I would like an opportunity to be in the Senate to debate this issue now an unreasonable request? The Senator from Oregon has also stated that the intelligence authorization bill is being held up based on a secret hold. In truth, it is not a secret. I will tell the Senator who is holding that important intelligence bill: It is the two Senators from Massachusetts. Senators Kennedy and Kerry have objected to considering the bill because they want to offer amendments. Some say they are poison-pill amendments, but they are amendments they want to offer. So if the Senator has a problem about that, he should talk to his colleagues. The Senators may say this only applies to proceeding to a bill. This is an important thing, because in 99 percent of the cases, proceedings of the bill and passage of the bill happen at the same time. The bill is called up and asked to be passed by unanimous consent. It is all the same request. Frankly, the problem with this bill goes further than the mechanical application. It makes a statement. It basically says that passing bills is inherently a good thing, and we should assume any Senator who has never heard of a bill should consent to it. Anyone who dares not to grant promptly and immediately any such consent is some scoundrel who needs to be exposed to misdeeds.

Senator Coburn has offered an amendment that says if we are going to have this hold amendment, he would offer one that says if you want to pass a bill and there is no quorum present, and you want to ram it through with no quorum present, you need to have a petition signed by 100 Senators saying they are prepared to let the bill go through.

Why not? It is not practical, perhaps, but the system is not designed to be practical. Frankly, it is too easy to pass bills. Bills flow through this body like water.

I want the American people to know how bills are passed in this Senate. We were talking about some sunshine here. Let's talk about it. There is a system we have called a hotline. What is a hotline? In each Senate office there are three telephones with hotline buttons on them. Most evenings, sometimes after business hours, these phones begin to ring. The calls are from the Republican and the Democratic leaders to each of their Members, asking consent to pass this or that bill--not consider the bill or have debate on the bill but to pass it. Those calls will normally give a deadline. If the staff do not call back in 30 minutes, the bill passes. Boom. It can be 500 pages. In many offices, when staffers do not know anything about the bill, they usually ignore the hotline and let the bill pass without even informing their Senators. If the staff miss the hotline, or do not know about it or were not around, the Senator is deemed to have consented to the passage of some bill which might be quite an important piece of information.

So that is the real issue here. The issue is not about holds. The rules say nothing about holds. Holds do not exist. The issue is consent. Nobody has a right to have an individual Senator's consent to pass a bill. They act as though you have a right to get it. You would expect if you are going to say you have unanimous consent, you have consent. But that is not always the case.

If staff do not have time to read the bill--some of these bills are hundreds of pages long--they frequently assume someone else has read it. Staff in the Senate offices do not read all these bills, and they go back to whatever they were doing before the hotline phone rang. Presumably, some committee staffer has read the bill at some point along the way, but in almost no case have actual Members of the Senate granted their intentional consent to the bills that pass during the day's wrapup that we often see late into the night on C-SPAN.

In many cases, even Senators sponsoring the bill have never read it, unfortunately. Committee reports are filed on bills. Very few staff have read the committee reports. How do I know about this? I have the thankless task of chairing the Senate Steering Committee. One of our commitments is to review every bill that is hotlined in the Senate. My staff actually reads them. It is a service to my colleagues, I suggest. They read the CBO scores which tell how much the bill costs the taxpayers. A lot of times they do not want you to know that. Some committee, group, or someone has moved a bill on the floor--they move it along--and nobody has read the score. Many contain massive, new spending programs. Some bust the budget. We think Senators who are looking out for the taxpayers and taking the time to study bills should have the same rights as Senators who are willing to let big spending bills pass without reading them. This amendment is not good government. It will make it more likely that bills will pass in the middle of the night filled with pork and who knows what else.

The current process established by the two leaders provides for 72 hours for Senators to withhold consent and to read a bill. Beyond that, the objections become public. Under this amendment, if a Senator in an offhand conversation with the leader says, ``I

think we ought to take a hard look at this bill,'' does that mean his name should be printed in the Record? That is not workable. If I am on the floor, and the leader asks me if we ought to go to such and such a bill, and I say, ``No, don't do that, I think something else should go first,'' do I then immediately have to go to the floor and publish that in the Record?

According to this resolution, any communication with the leader suggesting we not proceed to a bill would need to be printed in the Record and submitted to the leader in writing. However, if I communicate to the leader that we should proceed to some big spending bill, I can do that in secret. This gives a new advantage to those who want to pass legislation without review.

Now, I take very seriously holding up a bill. We stay on our team, and we look at the matter promptly and try to give an honest response. And if we have a problem with a clause or two in a piece of legislation, we share that with the Senators who are promoting the legislation. Usually an agreement can be reached, and usually the legislation is cleared, anyway, without any significant delay.

Line 4 of the Wyden amendment says:

The majority and minority leaders of the Senate or their

designees shall recognize a notice of intent of a Senator who

is a member of their caucus to object to proceeding to a

measure or matter only if the Senator

(1) submits the notice of intent in writing to the

appropriate leader or their designee; and

(2) within 3 session days after the submission under

paragraph (1) submits for inclusion in the Congressional

Record and in the applicable calendar section described in

subsection (b) the following notice:

``I, Senator [blank], intend to object to proceeding to

[blank], dated [blank].''

If a Senator tells their leader on the phone they have concern with a bill that was offered that night, must they quickly run down to his office and hand the leader a piece of paper? This says it must be submitted in writing; otherwise, the leader cannot recognize it.

If the leader decides against proceeding to the bill, does that mean he has violated the rule?

How can we prove that the leader did not simply change his mind, but rather that he illegally recognized an oral hold, which was not submitted in writing?

Who is to make such a determination?

Is the Parliamentarian going to be put in the uncomfortable position of trying to divine the motivations of a party leader?

I am not sure what the purpose of the 3 days is, but here is what its effect is:

If a bill is hotlined at 7:30 at night, and the leaders say it will be passed at 7:45 unless there is an objection, and my staff calls them to say please do not proceed, we would like to review the bill, rather than reading the bill, they would have to run to the leader's office with a piece of paper saying we object to the bill.

Then, let's say they run back to the office, start reading, and after review, the bill looks fine. Let's say they even call back within the 15-minute window that was given. The bill passes that night. The next day it passes the House, and is signed by the President. It is now law.

On the third day, I would still need to insert a statement in the Congressional Record saying ``I, Senator Jeff Sessions, intend to object to proceeding [blank], dated [blank].''

I intend to object to a bill that has already been signed into law?

The amendment has been so poorly drafted that it is not even clear what it does. This is what we are dealing with.

This poorly drafted amendment is intended to stack the deck, in favor of other poorly drafted legislation passing in the middle of the night with little or no review.

Let's look at section (c) line 18:

A Senator may have an item with respect to the Senator

removed from a calendar to which it was added under

subsection (b) by submitting for inclusion in the

Congressional Record the following notice:

I, Senator [blank], do not object to proceeding to [blank],

dated [blank].

This is the flip side: Maybe you looked at the bill and do not like it, but are willing to let it pass by a voice vote.

Now, to get the ``scarlet letter'' I removed, you need to put a statement into the Record saying you do not object to the bill, which may not be altogether true.

Further, what if you simply want to offer an amendment, or debate, but the leadership wants to pass the bill clean. How does this bill apply?

I suppose one interpretation is it would not apply at all, because it only purports to apply to ``proceeding to a bill.''

What if you want to offer a thousand amendments? What then? What if you prefer to proceed to a different version of the bill?

What if you would simply like a rollcall vote on the motion to proceed, or would like time to debate, but the leadership does not want to grant you that. Technically, you are objecting to proceeding under those circumstances.

I could stand here for hours discussing all the many ways this amendment is going to damage the Senate, and the many ways this amendment is absolutely worthless as a tool to prevent blocking of legislation in secret.

But what I object to most is that this amendment says passing legislation is always preferable to slowing it down, that letting a bill pass is good no matter how poorly drafted, how costly, how late in the evening, or how few Senators have studied or even heard of the bill.

How much pork is there? Passing bills is good: In many cases, that is not correct.

There is a widely quoted story about the ``coolness'' of the Senate involving George Washington and Thomas Jefferson. Jefferson was in France during the Constitutional Convention.

Upon his return, Jefferson visited Washington and asked why the Convention delegates had created a Senate. ``Why did you pour that coffee into your saucer?'' asked Washington. ``To cool it, `` said Jefferson. ``Even so,'' responded Washington, ``we pour legislation into the senatorial saucer to cool it.''

The Framers intended the Senate to deliberate, to thoughtfully review legislation, not be a rubber stamp.

This amendment says those Senators who are willing to grant consent to legislation they have never read or have perhaps never even heard of--those are the good Senators.

But those Senators who dare to say: I would like time to read this legislation, to see how much it costs, to see whether it is within the national interests--they are the troublemakers. These scoundrels need to be exposed to the public.

So, in summary, here is where we are.

Passing midnight spending boondoggles with two Senators in the Chamber: Good. Reviewing legislation: Bad. Objecting to big spending legislation: Really bad.

Lobbyists must be thrilled with this. Lobbyists who are pushing special-interest legislation will now have a ready-made target list.

All they need to do is get the leadership to hotline the legislation, and within 3 days they will know who they need to talk to or jump on or ``sick the dogs on.''

I believe we need to return to the ``cooling'' Senate, not a ``freezing'' Senate, where obstruction is the rule, nominees are blocked endlessly; not a ``greased'' Senate, where bad legislation passes at lightning speed late at night with no time for review, but a Senate where Senators are encouraged to take the time to pick up a bill and read it, to weigh the consequences for the American taxpayers.

This amendment runs directly contrary to the spirit of reform this bill purports to address.

I urge my colleagues to oppose the amendment.

Mr. President, I see several of the sponsors of the amendment here. Probably they disagree with some of my views, but I think they are worthy of their consideration.

I yield the floor.

Mr. President, I thank the Senator from Massachusetts for highlighting an issue that is important to the Armed Services Committee, the authorizing committee. A lot of work is already going on to deal with this problem. The Chairman of the Joint Chiefs, Peter Pace, said rising health care costs are the No. 1 issue when he spoke to our committee.

This amendment would cost $10.4 billion over 5 years and result in an increase in taxes by that amount. The authorizing committee does need to focus on it and is focusing on this issue.

I ask the amendment be defeated.

Mr. President, I join my colleagues in expressing our sincere sympathy to Senator Inouye on his loss. He is certainly one of the finest, most respected Members of this body. He is one of the great Senators who have served here and has been a true American patriot, serving his country with such fidelity and putting his very life on the line, and nearly losing it, and winning the Nation's highest honors in the course of serving his country.

So I would just say from this Senator, and on behalf of so many of us, we are sorry to hear this news, and our prayers and support are with Senator Inouye at this time.

Mr. President, what is the time agreement?

Mr. President, I think back to a young Senator Inouye, serving in our military, putting his life at risk and nearly losing it for our country. One thing he had a right to expect of his Congress was, as a soldier, he would be supported in the conflict.

We are here today hearing of a resolution presented by Senator Feingold to censure the President of the United States. It is baseless. It is not sound in law, and it is not sound in policy. We, by over a three-quarters vote, voted to send our soldiers in harm's way. This Senate voted to do that. We authorized the President, in a use of force resolution, to identify those responsible for attacking us and to attack and destroy them, to use such military force as he deemed appropriate to attack and kill them. And our soldiers have been doing that.

The Supreme Court recently had to deal with the situation in which an American citizen was captured abroad, Hamdi. They caught him. It went before the Supreme Court of the United States, and the issue was whether he was entitled to a trial.

The question was, Was he entitled to a trial? The Supreme Court held otherwise. The Supreme Court said that he was a prisoner of war, and the authorization of military force authorized the military to attack and kill enemies of the United States. It also authorized them to capture them. That was incident to the use of military force.

It is quite plain that our history of military affairs supports the concept that surveilling in a time of war is incident to the carrying on of war. In the same way that we have a right to take an American citizen and lock them up in jail without trial if they are identified to be with the enemy, we can surveil the enemy's communications.

The President authorized simply this: al-Qaida conversations in which one of the parties to that conversation is outside the United States could be monitored. We know it was through those kinds of communications that 9/11 occurred. We had sleeper cells here activated by foreign communications.

It is wrong to undermine this President while we have our soldiers at war and at risk, to suggest that he has done something wrong and needs to be censured.

I express my strongest disapproval of the propriety of this resolution.

Mr. President, the budget point of order is not a technical budget point of order. It was a technical point of order with regard to the asbestos bill. This bill would provide $1 billion more in 2006 than the budget authorized. If we are going to spend $1 billion more than the budget authorized, how can that not be in violation of the budget?

There are two aspects: first, you say it is paid for in the future. That is irrelevant to whether the Budget Act is violated, even if it were paid for. Second, we have been around here long enough to know we are not going to cut LIHEAP next year by $1 billion. We know that.

As much as we would like to accommodate this spending--I can understand the desire of the Senators to do so--we should not do it because it violates the budget in a very fundamental way.

It clearly is an unfair allocation of funds compared to my State, which receives $17 million less if it were distributed according to the discretionary plan, as opposed to the fundamental formula.

I yield back my remaining time.

Mr. President, I rise in support of the proposal Senator Kyl has offered. I do believe it represents a step toward fairness. But I do reiterate that I believe the budget point of order should not have been waived, and that we actually spent, under this proposal that has been cleared so far, another billion dollars this year than we had within our budget. That is a bad thing. It is those kinds of steps that get us into real trouble in spending.

We have my colleagues who say they care about spending; oh, they care about spending. But time and time again, when a vote comes up that actually has something to do with our deficit, they are AWOL. I thought it was amusing that not long ago, a Senator referred to a vote he cast 15 years ago as if that is going to prove he is frugal. We have a vote right now. This was the vote. This was a clear vote. It had to do with whether we had any intention to be disciplined in the way we handle money. They say: Well, we need this money. But the truth is we have had the warmest January on record. This has been a very mild winter. For that, we can be most thankful.

Is this an emergency? Well, what happens next year if it really is an average or cold year and we don't have this billion dollars? It has already been spent this year. And they say the heating oil prices don't fall, they go up. They say the heating oil prices will go up again next year. Where are we going to come up with that billion dollars? We don't even have a proposal here to offset it.

With regard to the funding formula we have seen, if we can fund this billion dollars in the way that has been proposed, my State, which suffers from a lot of hot days--and in small houses and in mobile homes that are not cooled, people do die. That is a tough time. If we are going to have this fund, it is only fair that the poor people in my State have a chance to participate in it, not just a select group.

So I just return to the fundamental principle. We are indeed moving a piece of legislation that spends $1 billion more this year than we authorized in spending. The fact that it came from next year's money doesn't answer the question. We are spending a billion dollars more than we were authorized to spend under our budget. What good is a budget if we don't adhere to it?

What we have is some tax-and-spend people here. They vote against tax cut extensions, they vote to raise taxes, and they vote to raise spending. That is what it is about. They say they are frugal. They say they are responsible. Those of us who are trying to contain spending and maintain a low tax rate for the American people, they say somehow we don't care about our people. That is not correct.

We are at a point in time when our Federal budget is allowing for an increase in spending every year, and we will see again this year a very sizable increase. We will have before the Budget Committee an effort to contain just a little bit the growth of entitlements. Do you know what I am hearing, Mr. President? I am hearing we don't have the votes in the Budget Committee to even have a modest containment of spending on entitlement programs, which is where the growth is--about $870 billion for discretionary spending and $1.2 trillion for entitlements. The discretionary budget this year will come in almost flat this year, with little increase. But entitlement spending is going up at about a rate of 7 percent or so. It is just driving our deficits. We cannot even begin to discuss that, apparently, because people want to raise taxes and spend. They want to tax and spend. It is not the right way to go. That is not what this country was founded on.

When you look at the Europeans who have done tax and spend--look at Germany, with 11.5 percent unemployment, and France has 9.5 percent unemployment. That is what the statist Socialist economies produce. How did they get there? Because their congresses could not resist the demand to fund every feel-good program that comes along the pike. That is why. Then when you meet with a businessman from Germany, he says: I know we have to do something, Senator. Maybe we can cut back on this, but people are so dependent on these government programs, so used to them in Germany, that we cannot quite get the votes to stop it. We know if we don't do it, it can wreck our economy, but we cannot get the votes because people become addicted to it, they like it. They feel like anything they once received, if it is not received the next year, the demagogues say it is a big cut and you have been denied something you are entitled to.

So I just say that if I seem a bit frustrated, you can know that I am. We have had a lot of good discussion about how to contain the growth of entitlements--and I am not a bit sure that is going to bear fruit this year--just to maintain the current tax level and keep taxes from being increased next year. Now we come along on top of a generous LIHEAP program and add $1 billion more, in violation of the budget agreement. We just voted to waive the Budget Act and do it anyway with 66 votes. I am telling you, this is not the way to get spending under control in this country. It is the way to move our country to a statist economy. That is not our strength.

Our unemployment is not 11.5. Our unemployment is not 9.5. Ours is 4.7. In my State of Alabama, it is 3.5. We didn't get there by taxing and spending; we got there by reducing the burden of government on the private sector and allowing the private sector to flourish. Tax revenues are up in every city in the State, I do believe. I traveled 26 counties last week. Every mayor and county commissioner I talked to is seeing increases in sales tax revenues. Many are telling me they have a 14-, 15-, to 18-percent increase in taxes. Why? Because the economy is booming. Companies are hiring people. They are bidding up the wages. They cannot find people, and they have to pay higher wages. People are making more money, and they pay taxes on that. So revenue to the Federal Government is up. Yes, we have a deficit, but revenue is up.

People don't pay taxes to Uncle Sam if they don't make money. They are paying more taxes because they are making more money. We have a free market economy that allows growth and vitality. So I think this vote is an important vote for us as a people. It is a sad vote to me to see many people who claim to be frugal, claim to care about spending, but when the chips are down and we have a clearly dangerous bill like this one, a bill that we ought to be able to vote down overwhelmingly, we could not even get 40 votes to say no. We could not find 40 votes to say no to this plan. I don't blame Senators for trying to do this. They say that you in the South want help. Well, scrutinize the help we are asking for. If we are asking for something that is unfair, say so, vote against it. Don't come in here and vote for everything this one wants, everything that one wants, and everything that one wants, and then walk in here and say the deficit is too big and now we have to raise taxes. That is where we are headed. I think everybody here knows that. There are a lot on the other side of the aisle, and apparently some on this side, for whom that is a strategy. That is a strategy. The strategy is to increase spending and then say you cannot have lower

taxes and we have to have higher taxes and we have to raise taxes. They don't want to say it publicly and openly, but that is what they are working toward.

That is a big divide in the Congress, as I see it. I hate that we have a dispute over this spending, but apparently we have. It is discouraging to see the vote. But I think, as we continue to talk about it, perhaps the American people will talk to their Senators and Congressmen. When I travel around, they talk to me about spending. Of course, they want their projects. They say: Oh, don't cut that. But overall, they want constraint.

I believe the American people fundamentally will respect us if we maintain some discipline. That means, on the discretionary account, staying within our budget figure, which is basically flat spending. When we are in a crisis, we try to keep our spending level. We have a deficit. We ought to stay level. We are not slashing anything. We have to stop going for more and more red ink, more and more new spending programs that we have not had before to fund heating oil in the warmest winter on record.

We are going to keep talking about it. There will be more votes in this Congress and in this Senate. We did pretty well last year. We did do some reduction--modest reduction in entitlements with the Medicaid Program. We limited the growth of Medicaid, and we were proud of ourselves. Over 5 years, it was going up 41 percent before we passed the cost-saving bill, and now it is going up 40 percent. We thought we were quite proud of ourselves to save a little money that way. If we would do that on the other accounts, like Medicaid and Medicare and some other accounts--just a little bit--we would have big numbers as we go along and make a real difference in what we are doing. But it looks like that may not happen.

So we are going to have to, I guess, reengage the American people, reengage the Members of Congress, and they are going to be asked by constituents: How did you vote? How did you vote on LIHEAP? Did you vote to spend another $1 billion? Maybe we can begin to have the American people talk some sense into those of us in Congress.

I thank the Chair and yield the floor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

appropriate for counterintelligence and counterterrorism

investigations as well as for criminal investigations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I want to personally thank you for your strong leadership

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

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

comments from the American Library Association on your stand,

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

Please continue to fight to keep our Nation free.

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

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

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

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

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

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

I yield the floor.