Mr. President, is there a speaker designated to go next? In light of the fact that the Chair indicated that the Senator from Iowa is to be next, I ask unanimous consent that I may speak next, and that I may use as much time as I may…
Mr. President, is there a speaker designated to go next?
In light of the fact that the Chair indicated that the Senator from Iowa is to be next, I ask unanimous consent that I may speak next, and that I may use as much time as I may require.
On behalf of Senator Dodd, I wish to inform our colleagues that for health reasons Senator Dodd will necessarily be absent from Senate business for the remainder of the week. He thanks his colleagues for their courtesy and understanding.
Mr. President, I commend my colleagues who came to the floor yesterday to discuss the PATRIOT reauthorization, and I thank Chairman Specter for initiating a very interesting debate with me when we were both on the floor. That is exactly the kind of dialog we want to see on the floor more often. I hope we will see a lot more of it over the next few days. The PATRIOT Act reauthorization conference report has come to the Senate and the Senate will be faced with a very important choice. I expect this debate will be lengthy and hard fought, so I wanted to take some time tonight to lay out the background and the context for this debate, and to discuss my concerns about the conference report with some specificity.
Because I was the only Senator to vote against the PATRIOT Act in 2001, I want to be very clear about something from the start. I am not--not--opposed to reauthorization of the PATRIOT Act. I supported the bipartisan compromise reauthorization bill that the Senate passed earlier this year, that had no Senator at all objecting. I believe the bill should become law. The Senate reauthorization bill is not a perfect bill, but it is a good bill. If that were the bill we were considering today, I would be on the floor speaking in support of it. In fact, we could have reauthorized the PATRIOT Act several months ago if the House had taken up the bill the Senate approved without any objections.
I also want to respond to those who argue that people who are demanding a better conference report want to let the PATRIOT Act expire. That is actually nonsense. Not a single Member of this body is calling for any provision of the PATRIOT Act to completely expire. As Senator Sununu eloquently argued yesterday, just because we are coming up against the end of the year does not mean we should have to compromise the rights of law-abiding Americans. There are any number of ways we can get this done and get it done right before the end of the year.
Let me also be clear about how we ended up voting on a badly flawed conference report just days before certain provisions of the PATRIOT Act expired. The only reason we are debating this conference report in the middle of December, rather than in the middle of September or October, is because the House--the House--refused to appoint its conferees for 3\1/2\ months. It passed its reauthorization bill on July 21, but it did not appoint the conferees until November 9. In the Senate, on the other hand, we passed a bill by unanimous consent on July 29 and we appointed our conferees the very same day. We were ready and willing to start the process of resolving our differences with the House right away, leaving plenty of time to get this done without the pressure of the end-of-the-year deadline.
So when I hear Members of the House already attempting to place blame on those of us in the Senate who object to this conference report, I am a little bit frustrated. If there is anyone to blame, it is the House leadership for playing a game of brinkmanship with this crucial and controversial issue. Senators who are standing strong for the rights and freedoms of the American people will not be at fault if parts of the PATRIOT Act expire.
I also want to clear up one related misconception. I have never advocated repeal of any portion of the PATRIOT Act. In fact, as I have said repeatedly over the past 4 years, I supported most of the provisions of the bill. There are many good provisions in the bill. As my colleagues know, the PATRIOT Act did a lot more than expand our surveillance laws. Among other things, it set up a national network to prevent and detect electronic crimes such as the sabotage of the Nation's financial sector, it established a counterterrorism fund to help Justice Department offices disabled in terrorist attacks to keep operating, and it changed the money laundering laws to make them more useful in disrupting the financing of terrorist organizations. One section of the PATRIOT Act even condemned discrimination against Arab and Muslim Americans.
Even some of the act's surveillance sections were not troubling. In fact, one provision authorized the FBI to expedite the hiring of translators. Another added terrorism and computer crimes to the list of crimes for which criminal wiretap orders could be sought. And some provisions helped to bring down what has been termed ``the wall,'' the wall that had been built between intelligence and law enforcement agencies.
This week we have heard a lot of people saying we must reauthorize the PATRIOT Act in order to ensure that this wall does not go back up. Let us make this clear. I supported and continue to support the information-sharing provisions of the PATRIOT Act. One of the key lessons we learned in the wake of September 11 was that our intelligence and law enforcement agencies were not sharing information with each other, even where the statutes permitted it. In the PATRIOT Act we tore down the remaining legal barriers.
Unfortunately, the law was not so much a legal problem as a problem of culture and the report of the 9/11 Commission made that very clear. I am sorry to report that we have not made as much progress as we should have in bringing down those very significant cultural barriers to information sharing among our agencies.
The 9/11 Commission report card that was issued last week gave the Government a ``D'' for information sharing because their agencies' cultures have not changed enough these 4 years after the change in the law in the PATRIOT Act.
There is a statement issued by Chairman Kean and Vice Chairman Hamilton that explained:
You can change the law, you can change the technology, but
you still need to change the culture. You still need to
motivate institutions and individuals to share information.
So far, unfortunately, our Government has not met the challenge.
Talking about the importance of information sharing, as administration officials and other supporters of the conference report have done repeatedly, is part of a pattern that started several years ago. Rather than engage in a true debate on the controversial parts of the PATRIOT Act, as Senator Specter did yesterday, unfortunately many proponents of the PATRIOT Act point to noncontroversial provisions of the PATRIOT Act and they talk about how important they are. They say this bill must be passed because it reauthorizes those noncontroversial provisions.
That doesn't advance the debate. It just muddies it further. In fact, it is a red herring.
I have news for those who would try to use that tactic. It won't work. We don't have to accept bad provisions to make sure that good provisions become law. I hope the Senate will make that lesson very clear this week.
Tonight, I want to advance the debate, spend some time explaining my specific concerns about the conference report in some key areas. It is very unfortunate that the whole Congress could not come together, as the Senate did around the bipartisan compromise reauthorization bill. Back in July, the Senate Judiciary Committee, on which I serve, voted unanimously in favor of a reauthorization bill that made meaningful changes to the most controversial provisions of the PATRIOT Act to protect the rights and freedoms of innocent Americans. Shortly thereafter that bill passed the full Senate by unanimous consent. It was not easy for me to support that Senate bill which fell short of the improvements contained in the bipartisan SAFE Act.
At the end of the day, the Senate bill contained meaningful changes to some of the most problematic provisions of the PATRIOT Act, provisions that I have been trying to fix since October of 2001. So I decided to support it. I made it very clear at the time, however, that I viewed that bill as the end point of negotiations, not the beginning. In fact, I specifically warned my colleagues that the conference process must not be allowed to dilute the safeguards in this bill. I meant it. But it appears that people either weren't listening or weren't taking me seriously.
This conference report, unfortunately, does not contain many important reforms of the PATRIOT Act that we passed in the Senate. So I cannot support it. In fact, I will fight it with every ounce of strength I have. And I am delighted to be part of a strong bipartisan consensus that believes, as I do, that this conference report is unacceptable.
Let me start with section 215, the so-called ``library'' provision, which has received so much public attention.
I remember when the former Attorney General of the United States called the librarians who were expressing disagreement with this provision ``hysterical.''
What a revelation it was when the chairman of the Judiciary Committee, the Senator from Pennsylvania, opened his questioning of the current Attorney General during his confirmation hearing by expressing his concern--the chairman's concern--about this provision of the PATRIOT Act. He got the Attorney General to concede that, yes, in fact, this provision probably went a bit too far and could be improved and clarified. That was an extraordinary moment. It was a moment, I am afraid, that was very slow in coming and long overdue.
I give credit to the Senator from Pennsylvania because it allowed us to start having, for the first time, a real debate on the PATRIOT Act. But credit also has to go to the American people who stood up despite the dismissive and derisive comments of Government officials and said with loud voices: The PATRIOT Act needs to be changed. And these voices came from the left and the right, from big cities and small towns all across the country. So far, over 400 State and local governmental bodies have passed resolutions calling for revisions to the PATRIOT Act. I plan to read some of those revisions on the floor of the Senate in this debate, and there are a lot of them. Nearly everyone mentions section 215.
Section 215 is at the center of this debate over the PATRIOT Act.
It is also one of the provisions that I tried unsuccessfully to amend on the floor in October 2001.
So it makes sense to start my discussion of the specific problems I had with the conference report with the infamous library provision.
Section 215 of the PATRIOT Act allowed the Government to obtain secret court orders in domestic intelligence investigations, to get all kinds of business records about people, including not just library records but also medical records and various other types of business records. The PATRIOT Act allowed the Government to obtain these records as long as they were ``sought for''--that is all, ``sought for''--in a terrorism investigation. That is a very low standard. It doesn't require that the records concern someone who is suspected of being a terrorist or a spy, or even suspected of being connected to a terrorist or a spy. It didn't require any demonstration of how the records would be useful in the investigation.
Under section 215, the Government simply said--this is fact--all the Government has to do is say the magic words, that it wanted records for a terrorism investigation, then the secret FISA court was required-- required--to issue the order, period. No discretion. The judge had to give the order.
To make matters worse, recipients of these orders are subjected to an automatic gag order. They cannot tell anyone that they have been asked for the records.
Some in the administration and even in this body took the position that people shouldn't be able to criticize these provisions until they can come up with a specific example of abuse.
The Attorney General makes that same argument today in an op-ed in the Washington Post when he simply dismisses concern about the PATRIOT Act by saying: ``There have been no verified civil liberties abuses in the 40 years of the Act's existence.''
That has always struck me as a strange argument since 215 orders are issued by a secret court, a secret court. And people who receive them are prohibited by law from discussing them.
In other words, the way the law is actually designed, it is almost impossible to know if any abuses have occurred. How would we find out? It is a secret court and nobody can talk about it.
The Government should not have the kind of broad, intrusive powers it gave itself in section 215. And the American people shouldn't have to live with a poorly drafted provision that clearly allows for records of innocent Americans to be searched and just hope that the Government uses it with restraint.
A government of laws doesn't require its citizens to rely on the goodwill and the good faith of those who have those powers, especially when adequate safeguards can be written into the laws without compromising their usefulness as a law enforcement tool.
After lengthy and difficult negotiations, the Judiciary Committee came up with language this year that achieved that goal. It would require the Government to convince a judge that a person has some connection--some connection--to terrorism or espionage before obtaining their sensitive records. When I say some connection, that is what I mean.
The Senate bill standard is the following: One, that the records pertain to a terrorist or a spy; two, the records pertain to an individual in contact with or known to a suspected terrorist or spy; or, three, that the records are relevant to the activities of a suspected terrorist or spy.
That is a three-pronged test in the Senate bill. I think it is quite broad. I think it is more than adequate to give law enforcement the power it needs to conduct investigations but also at the same time protecting the rights of innocent Americans.
It would not limit the types of records that the Government could obtain, and it does not go as far to protect law-abiding Americans as I might prefer, but it would make sure the Government cannot go on a fishing expedition into the records of innocent people.
The Senate bill would also give recipients of a 215 order an explicit, meaningful right to challenge business record orders and the accompanying gag orders in court. These provisions
passed the Senate Judiciary Committee unanimously after tough negotiations late into the night. Unfortunately, the conference report just did away with their delicate compromise.
First and most importantly, it does not contain the critical modification to the standard for section 215 orders.
The Senate bill permits the Government to obtain business records only if it can satisfy one or more prongs of the three-pronged test that I just described.
This is a broad standard with a lot of flexibility. But it retains the core protection that the Government cannot go after someone who has no connection whatsoever to a terrorist or a spy or their activities.
What does the conference report do? The conference replaces the three-pronged test with a simple relevant standard. It then provides the presumption of relevance if the Government meets one of the three prongs I just described.
But it is silly to argue that this is adequate protection against a fishing expedition. The only actual requirement in the conference report is that the Government show that the records are relevant to an authorized intelligence investigation. Of course, ``relevance'' is a very broad standard that can arguably justify the collection of all kinds of information about law-abiding Americans.
The three prongs now are just examples of how the Government can satisfy the relevance standard, and that is simply a loophole, or an exception that swallows the rule. The exception is the rule.
In fact, a better way to say it is that this is actually a complete rule, and the exception has been rendered meaningless.
I will try to make this as straightforward as I can. The Senate bill requires the Government to satisfy one of three tests. Each test requires some connection between the records and a suspected terrorist or spy. The conference report says that the Government only is required to satisfy a new fourth test, which is just relevance, which does not require a connection between the records and a suspect. So basically the other three tests no longer provide any protection at all.
The conference report also does not authorize judicial review of the gag order that comes with a 215 order. While some have argued that the review by the FISA court of a Government application for a section 215 order is equivalent to judicial review of the accompanying gag order, that is simply inaccurate. The statute does not give the FISA court any latitude to make an individualized decision about whether to impose a gag order when it issues a section 215 order. It is required by statute to include a gag order in every section 215 order. That means that the gag order is automatic and permanent in every case. This is a serious deficiency, one that very likely violates the first amendment.
In litigation challenges, a semi-permanent national security letter statute, two courts have found first amendment violations because there is no individualized evaluation of the need for secrecy. I have these decisions right here; perhaps I will have a chance to read them in detail during the debate.
I will discuss other provisions in the conference report that fail to adequately address the concerns expressed in this Senate and around the country about the PATRIOT Act. Section 215 is a linchpin of this debate. To keep faith with the American people and with our constitutional heritage, we have to address the problems with section 215 in this reauthorization bill. There is no way around that.
Let me turn next to a very closely related provision that has finally been getting the attention it deserves--the national security letter, or NSL, an authority that was expanded by sections 358 and 505 of the PATRIOT Act. This NSL issue has flown under the radar for years even though many of us have been trying to bring more public attention to it. I am gratified that we are finally talking about these NSLs, in large part due to a lengthy Washington Post story published last month explaining just what these authorities are and reporting that the use of these powers has increased dramatically.
What are NSLs? Why are they such a concern? Let me spend a little time on this because it is important. National security letters are issued by the FBI to businesses to obtain certain types of records. They are similar to section 215 orders but with one very critical difference: The Government does not need to get any court approval whatever to issue that. It does not have to go to the FISA court and make even the most minimal showing. It simply issues the order signed by the special agent in charge of a field office or some other supervisory official. NSLs can only be used to obtain such categories of business records, while section 215 can be used to obtain ``any tangible thing.''
Even the categories reachable by NSLs are broad. Specifically, they can be used to obtain three types of business records: subscriber and transactional information related to Internet and phone usage, credit reports, and financial records. That category has been expanded to include records from all kinds of everyday businesses such as jewelers, car dealers, travel agents, and even casinos.
Just as with section 215, the PATRIOT Act expanded the NSL's authorities to allow the Government to obtain records of people not suspected of being or even connected to terrorists or spies. The Government need only certify that the documents are either sought for or relevant to an authorized intelligence investigation--a far-reaching standard that could be used to obtain all kinds of records about innocent Americans. Just as with section 215, the recipient is subject to an automatic permanent gag rule, and the conference report does very little to fix the problems of the national security letter authorities.
In fact, I disagree with the Senator from Pennsylvania, the chairman of this committee, on this point. In fact, I believe it could be argued that the conference report makes the law worse. Let me explain why.
First, the conference report does nothing to fix the standard for issuing a national security letter. It leaves in place the breathtakingly broad relevant standard.
Some have analogized NSLs to grand jury subpoenas issued by grand juries in criminal investigations to obtain records relevant to the crime they are investigating. So the argument goes, What is the big deal if NSLs are also issued under a relevant standard for intelligence investigations? Two critical differences make that analogy break down very quickly.
First of all, the key question is, Relevant to what? In criminal cases, grand juries are investigating specific crimes, the scope of which is explicitly defined in the Criminal Code. Although the grand jury is quite powerful, the scope of its investigation is limited by the particular crime it is investigating. In sharp contrast, intelligence investigations are by definition extremely broad. When you are gathering information in an intelligence investigation, anything could potentially be relevant.
Suppose the Government believes a suspected terrorist visited Los Angeles in the last year or so. It might want to obtain and keep the records of everyone who has stayed in every hotel in Los Angeles or who booked a trip to Los Angeles through a travel agent over the past couple years, and it could argue strongly that information is relevant to a terrorism investigation because it would be useful to run all those names through the terrorist watch list.
I don't have any reason to believe that such broad use of NSLs has happened. But the point is, when you are talking about an intelligence investigation, relevance is a very different concept than in criminal investigations. It is certainly conceivable that NSLs could be used for that kind of a broad dragnet in an intelligence investigation. Nothing in the current law prevents it. The nature of criminal investigations and intelligence investigations is different. Let's not forgot that.
Second, the recipients of grand jury subpoenas are not subject to the automatic secrecy that NSL recipients are. We should not underestimate the power of allowing public disclosure when the Government overreaches. In 2004, Federal officials withdrew a grand jury subpoena issued to Drake University for a list of participants in an antiwar protest. Why? Because there were public revelations about the demand. That could not have happened if the request had been made under section 215 or for records available via the national security letter authority.
Fortunately, there are many other reasons the conference report does so little good on NSLs. Let's talk about judicial review. The conference report creates the illusion of judicial review for NSLs, both for the letters themselves and for the accompanying gag rule, and if you look at the details, it is drafted in a way that makes the review virtually meaningless.
With regard to the NSLs themselves, the conference report permits recipients to consult their lawyer and seek judicial review, but it allows the Government to keep all of its submissions secret and not share them with the challenger regardless of whether there are national security interests at stake. So you can challenge the order, but you have no way of knowing what the Government is telling the court in response to your challenge. Parties could argue about something as garden-variety as attorney-client privilege with no national security issues, and the Government would have the ability to keep this secret. This is a serious departure from our usual adversarial process. I believe it is very disturbing.
The other significant problem with the judicial review provisions is the standard for getting the gag rule overturned. In order to prevail, the recipient has to prove that any certification by the Government that disclosure would harm national security or impair diplomatic relations was made in bad faith. Now, that is a standard of review that is virtually impossible to meet. So what we have here is the illusion-- the illusion--of judicial review. When you look behind the words in the statute, you realize it is a mirage.
I also want to take a moment to address again an argument made yesterday by the Senator from Pennsylvania about the NSL provisions of the conference report. He argued that many of the complaints I have about the NSL provisions of the conference report apply equally to the NSL provisions of the Senate bill. And then he says because I supported the Senate bill, by some convoluted theory, my complaints are, therefore, invalid and I should support the conference report.
As I said yesterday, that does not make any sense.
The NSL section of the Senate bill was one of the worst sections of the bill. I did not like it then, and I do not like it now. But in the context of the larger package of reforms that was in the Senate bill, including the important changes to section 215 that I talked about earlier, and the new time limit on sneak-and-peek search warrants, which I will talk about in a moment, I was able to accept that the NSL section was there even though I would have preferred additional reforms.
The argument was made yesterday that after supporting a compromise package for its good parts, now I am supposed to accept a conference report that has the bad parts of the package even though the good parts have been taken out. Now, that is nonsense. Every Member of this Chamber who has ever agreed to a compromise--and I must assume that includes every one of us--knows it.
The other point I want to emphasize is that the Senate bill was passed before the Post reported that there has been extensive use of NSLs and the difficulties that the gag rule poses for businesses that feel they are being unfairly burdened by them, as reported by the Washington Post. At the very least, I would think that an NSL sunset is justified. But the conferees refused to make that change. Nor would they budge at all on the absurdly difficult standard of review, the so- called conclusive presumption.
I suspect that the NSL power is something the administration is zealously guarding because it is one area where there is almost no judicial involvement or oversight. It is the last refuge for those who want virtually unlimited Government power in intelligence investigations. And that is why the Congress should be very concerned and very insistent on making the reasonable changes we have suggested.
We had an interesting discussion on the floor yesterday also about the sneak-and-peek searches. This is another area where the conference report departs from the Senate's compromise language, and it is another reason I must oppose the conference report.
Yesterday, the Senator from Pennsylvania made what seems on the surface to be an appealing argument. He says the Senate bill requires notice of a sneak-and-peek search within 7 days of the search, and the House said 180 days.
The conference compromised on 30 days. ``That's a good result,'' he says. ``They came down 150 days, we went up only 23. What's wrong with that?''
Well, let me take a little time to put this issue in context and explain why this is not just a numbers game. An important constitutional right is at stake. One of the most fundamental protections in the Bill of Rights is the fourth amendment's guarantee that all citizens have the right to ``be secure in their persons, houses, papers, and effects'' against ``unreasonable searches and seizures.'' The idea that the Government cannot enter our homes improperly is actually a bedrock principle for Americans, and rightly so.
The fourth amendment has a rich history and includes in its ambit some very important requirements for searches. One is the requirement that a search be conducted pursuant to a warrant. The Constitution specifically requires that a warrant for a search be issued only when there is probable cause and that the warrant specifically describe the place to be searched and the persons or things to be seized.
Why does the Constitution require that particular description? For one thing, that description becomes a limit on what can be searched or what can be seized. If the magistrate approves a warrant to search someone's home, and the police show up at the person's business, that search is not valid. If the warrant authorizes a search at a particular address, and the police take it next door, they have no right to enter that house.
But, of course, there is no opportunity to point out that the warrant is inadequate unless that warrant is handed to someone on the premises. And if there is no one present to receive the warrant, and the search must be carried out immediately, most warrants require that they be left behind at the premises that were searched. Notice of the search-- notice of the search--is part of the standard fourth amendment protection. Without the notice, it does not mean much. It is what gives meaning, or maybe we should say ``teeth,'' to the Constitution's requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized.
Over the years, the courts have had to deal with Government claims that the circumstances of a particular investigation require a search without notifying the target prior to carrying out the search. In some cases, giving notice would compromise the success of the search by leading to the flight of the suspect or the destruction of evidence. The two leading cases on so-called surreptitious entry, which would come to be known as sneak-and-peek cases, came to very similar conclusions.
Notice of criminal search warrants could be delayed--delayed--but not omitted entirely. Both the Second Circuit in U.S. v. Villegas and the Ninth Circuit in U.S. v. Freitas held that a sneak-and-peek warrant must provide that notice of the search will be given within 7 days--7 days--unless extended by the court. Listen to what the Freitas court said about such searches:
We take this position because surreptitious searches and
seizures of intangibles strike at the very heart of the
interests protected by the Fourth Amendment. The mere thought
of strangers walking through and visually examining the
center of our privacy interest, our home, arouses our passion
for freedom as does nothing else. That passion, the true
source of the Fourth Amendment, demands that surreptitious
entries be closely circumscribed.
That is the end of the quote from that case.
So when defenders of the PATRIOT Act say that sneak-and-peek searches were commonly approved by the courts prior to the PATRIOT Act, they are partially correct. Some courts permitted secret searches in very limited circumstances, but they also recognized the need for prompt notice unless a reason to continue to delay was demonstrated. And they specifically said that notice had to occur within 7 days--7 days.
Section 213 of the PATRIOT Act did not get this part of the balance right. It allowed notice to be delayed for any reasonable length of time. Information
provided by the administration about the use of this provision indicates that delays of months at a time are now becoming commonplace. Now, those are hardly the kinds of delays that the courts had been allowing prior to the PATRIOT Act.
The sneak-and-peek power in the PATRIOT Act caused concern right from the start, and not just because of the lack of a time-limited notice requirement. The PATRIOT Act also broadened the justifications that the Government could give in order to obtain a sneak-and-peek warrant. It included what came to be known as the catch-all provision, which allows the Government to avoid giving notice of a search if it would ``seriously jeopardize an investigation.'' Some think that that justification in some ways swallows the requirement of notice since most investigators would prefer not to give notice of a search and can easily argue that giving notice will hurt the investigation.
The SAFE Act, the bipartisan bill that many of us worked on, worked to fix both of these problems. First, it tightened the standard for justifying a sneak-and-peek search to a limited set of circumstances-- when advanced notice would endanger life or property, or result in flight from prosecution, the intimidation of witnesses, or the destruction of evidence. Second, it required notice within 7 days, with an unlimited number of 21-day extensions if approved by the court.
The Senate bill was a compromise from this. It kept the catch-all provision as a justification for obtaining a sneak-and-peek warrant. Those of us who were concerned about that provision agreed to accept it in return for keeping, and actually getting back, in my view, from the court cases, the 7-day notice requirement. And we accepted unlimited extensions of up to 90 days at a time. The key thing was prompt notice after the fact, or a court order that continuing to delay notice was justified.
That is actually the background of the numbers game that the Senator from Pennsylvania and other supporters of the conference report point to. They want credit for walking the House back from its outrageous position of 180 days, but they refuse to recognize that the sneak-and- peek provision still has the catch-all justification, and unlimited 90- day extensions. And here is the crucial question they refuse to answer: What possible rationale is there for not requiring the Government to go back to a court after 7 days and demonstrate a need for continued secrecy? Why insist that the Government get 30 days free without getting an extension? Could it be that they think the courts usually won't agree that continued secrecy is needed after the search is conducted, so they would not get the 90-day extension? If they have to go back to a court at some point, why not go back after 7 days rather than 30? From the point of view of the Government, I don't see the big deal. But from the point of view of someone whose house has been secretly searched, there is a big difference between notice after 1 week and notice after a month.
Suppose, for example, that the Government actually searched the wrong house, as I mentioned. That is one of the reasons that notice is a fourth amendment requirement. The innocent owner of the place that had been searched might suspect that somebody had broken in. They might be living in fear that someone has a key or some other way to enter. Should we make that person wait a month to get an explanation rather than a week? Presumably, if the search revealed nothing, and especially if the Government realized the mistake and does not intend to apply for an extension, it surely will be no hardship, other than perhaps embarrassment, for notice to be given within 7 days.
All of this is about why I am not persuaded by the numbers game on the sneak-and-peak provisions. The Senate bill was already a compromise on this very controversial provision. There is no good reason not to adopt the Senate's provision. No one has come forward and explained why the Government can't come back to the court within 7 days of executing the search. In fact, on a discussion of this last night on one of the television programs, one of my colleagues literally said, 7 days versus 30 days, what is the big deal? That is the strength of the argument. There is no merit to the idea of making the notice be as potentially late as 30 days.
Let me put it this way: If the House had passed a provision that allowed notice to be delayed for 1,000 days, would anyone be boasting about a compromise that requires notice within 100 days, more than 3 months? Would that be a persuasive argument? I don't think so. The House provision of 180 days was arguably worse than current law, which required notice ``within a reasonable time,'' because it created a presumption that delaying notice for 180 days, 6 months, is reasonable. It was a bargaining ploy. The Senate version was what the courts had required prior to the PATRIOT Act. It was itself a compromise because it leaves in place the catchall provision for justifying a warrant in the first place. That is why I believe the conference report on the sneak-and-peak provision is inadequate and must be opposed.
Let me make one final point about sneak-and-peak warrants. Don't be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It is not. Section 213 is a criminal provision that could apply in whatever kind of criminal investigation the Government has undertaken. In fact, most sneak-and- peak warrants are issued for drug investigations. So why do I say they are not needed in terrorism investigations? Because FISA also can apply to those investigations and FISA search warrants are always executed in secret and never require notice. If you really don't want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that limiting the sneak-and-peak power, as we have proposed, will interfere with sensitive terrorism investigations is also a red herring.
I have spoken at length about the provisions of this conference report that trouble me. But to be fair, I should mention one significant improvement to the conference report over last month's draft. This new version does include a 4-year sunset on three of the most controversial provisions: Roving wiretaps, the so-called library provision which I discussed at some length, and the ``lone wolf'' provision of the Foreign Intelligence Surveillance Act. Previously, the sunsets on these provisions were at 7 years. It certainly is an improvement to have reduced that number so the Congress can take another look at these provisions or can take a look at these provisions sooner.
I also acknowledge that the conference report creates new reporting requirements for some PATRIOT Act powers, including new reporting on roving wiretaps, section 215 sneak-and-peak search warrants, and national security letters. There are also new requirements that the Inspector General of the Department of Justice conduct audits of the Government's use of national security letters and section 215.
In addition, the conference report includes other useful oversight provisions relating to FISA. It requires that Congress be informed about FISA court rules and procedures and about the use of emergency authorities under FISA. And it gives the Senate Judiciary Committee access to certain FISA reporting that currently only goes to the Intelligence Committee. I am glad to see that it requires the Department of Justice to report to us on its data-mining activities.
But adding sunsets and new reporting and oversight requirements only gets us so far. The conference report remains deeply flawed. I appreciate sunsets and reporting. I know that the senior Senator from Pennsylvania worked hard to ensure that they were included. But these improvements are not enough. Sunsetting bad law for another 4 years is not good enough. Simply requiring reporting on the Government's use of these overly expansive tools does not ensure that they won't be abused. We must make substantive changes to the law, not just improve oversight. This is our chance. We cannot let it pass by.
Last Thursday, after the conference deal was announced, the Attorney General termed it a ``win for the American people in that it would result in continued security for the United States and also continued protection of civil liberties for all Americans.'' In a way,
that comment shows that we have made some progress. The administration seems to understand now that protecting civil liberties is pretty important to our citizens. That is quite an improvement from the days when people who expressed these concerns were termed hysterical. But the Attorney General also said: ``people have seen how the Department of Justice has been very responsible in exercising [its] authorities.'' This comment reflects a fundamental misunderstanding of the relationship of the Government and the governed in our democracy. Trust of Government cannot be demanded or asserted or assumed. It must be earned. This Government has not earned our trust. It has fought reasonable safeguards for constitutional freedoms every step of the way. It has resisted congressional oversight and often misled the public about its use of the PATRIOT Act. And now the Attorney General is arguing that the conference report is adequate protection for civil liberties for all Americans? It isn't.
We sunsetted 16 provisions of the original PATRIOT Act precisely so we could revisit them and make necessary changes, to make improvements based on the experience of 4 years with the act, and with the careful deliberation and debate that, quite frankly, was missing 4 years ago. This process of reauthorization has certainly generated debate. But if we pass this conference report as currently written, we will have wasted a lot of time, and we will have missed an opportunity to finally get it right. The American people will not be happy with us for missing that chance. They will not accept our explanation that we decided to wait another 4 years before addressing their concerns. They will not settle for half a loaf because we ran out of time to reach consensus.
I submit that an acceptable consensus was reached unanimously by this Senate, every one of us, back in July. We should insist that the House pass that bill and give the American people a reauthorization bill that is worthy of their support and their confidence. I am prepared to keep fighting for as long as it takes to make that happen.
I thank the Chair and yield the floor.
I suggest the absence of a quorum.