USA Patriot and Terrorism Prevention Reauthorization Act of 2005--Conference Report

USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005--CONFERENCE REPORT

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Mr. WYDEN. I have enormous respect for Chairman Specter and Senator Leahy, and will say what is so troubling about this particular period: Virtually every single day, almost every day, we see another report about the administration trying to skew the bounds between fighting terrorism ferociously and protecting the civil liberties of the people of our country.

The front page of the paper today: Secret Pentagon databases are kept. Essentially, the administration, when somebody digs it up, finds out that all of this is being done--again in secret.

As I have said many times, the two concepts--security and civil liberties--are not mutually exclusive, and when crafting legislation, they be approached in tandem. In fact, it is my view that the promotion of American security and the protection of Americans' rights and freedoms should be mutually reinforcing principles. If one goal is abandoned for the other, or one goal carries less importance than the other, then a new solution must be found.

A new solution is certainly needed in this case. The PATRIOT Act conference report reflects the wholesale rejection of this two-pronged approach and relegates civil liberties to second class status.

The conference report strips out those Senate provisions that helped ensure good Congressional oversight. It limits the ability of law-abiding Americans to defend themselves from possible PATRIOT Act abuses. These changes do not make the PATRIOT Act a more effective tool for fighting terrorism; ultimately, they leave Americans more vulnerable to violations of privacy and the PATRIOT Act more susceptible to abuse.

I am not going to go through the whole bill, but would like to highlight one issue in particular that Oregonians have raised with me--National Security Letters. National Security Letters authorize the FBI, without judicial approval, to obtain Americans' sensitive information.

Senator Specter has enormous technical legal skills, and I am very concerned about the national security letters, as well. I sit on the Intelligence Committee. Of course we cannot get into any aspect of what goes on in those debates, but it seems to me any way you parse the legal language with respect to the conference report and the national security letters, it is not balanced. It is, once again, skewed against the rights of the individual.

The Washington Post recently reported that the FBI is using National Security Letters to go on fishing expeditions, and the FBI issued at least 30,000 NSLs in the last year alone. In these fishing expeditions, the FBI reportedly casts a wide net, gathering personal information on innocent Americans.

The Post article describes the experience of George Christian of Connecticut. Mr. Christian manages digital records for three dozen Connecticut libraries and reportedly received an NSL seeking ``all subscriber information, billing information and access logs of any person'' who used a specific computer at a certain library branch. The FBI reportedly instructed Mr. Christian that he could never talk to anyone about the request. In spite of this apparent gag order, he decided to challenge the NSL. The court files are sealed, but the Post reported that the judge described the basis for the NSL as laughably vague.

With the FBI issuing at least 30,000 NSLs a year, how many other Americans like Mr. Christian are out there? How many Americans have had personal information turned over to the federal government--who they've called, where they've traveled, what they've bought--because someone didn't have the time or the money to fight an unreasonable NSL? Who is going to have access to all the information the FBI has reportedly gathered that may now be in vast government databases? If any one NSL can be used to gather information on thousands or even tens of thousands of Americans, one can only guess how many Americans have already been affected by these fishing expeditions.

As pointed out in the Post article, the FBI acknowledged from the beginning that the NSL was an incredible power that had to be used judiciously. As one FBI employee stated in a 2001 memo sent to all 56 field offices:

NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information ..... However, they must be used judiciously.

Thirty thousand NSLs a year doesn't sound judicious to me. And 30,000 NSLs a year shouldn't sound judicious to the citizens of Oregon.

The reporting on NSLs cries out for proper congressional oversight to ensure that abuse of NSL powers does not occur. For starters, Americans must be armed with the necessary tools to challenge unreasonable National Security Letters. But the conference report further inhibits the ability of Americans to challenge NSLs.

More specifically, the conference report requires an NSL recipient who consults with an attorney to give the name of the attorney to the FBI. Talk about a chilling effect on the right to counsel! I am not aware of a provision like this existing in any other area of law.

For instance, the conference report imposes criminal penalties on an NSL recipient who speaks out in violation of an NSL gag order. So even if the NSL recipient believes that the letter is unconstitutional and that his rights have been violated, he could go to jail for 5 years.

It is provisions in the conference report like these, which expand the federal government's powers and make it more difficult for ordinary Americans and Congress to challenge abuses of that power, that give me serious pause. And there are not just one or two of them. Look in the sections concerning requests for business and library records, roving wiretaps, sneak and peak searches, and of course NSLs: there is a recurring pattern here and it is very disturbing.

There are those who claim that there have been no abuses of the PATRIOT Act. With all due respect, that is, at best, disingenuous. At least two courts have held that the FBI used its NSL power in an unconstitutional manner.

And remember, we are talking about powers that include gag rules--so how many others are out there challenging PATRIOT Act activities in silence?

There are those who will say, ``I haven't done anything wrong and I have no problem with the government doing what needs to be done to fight terror--if they end up with my personal information, but don't use it against me, so be it.''

I wonder how that innocent person would feel if the FBI were watching over his shoulder as he surfed the Internet, standing by his side and noting whom he calls and when, or standing next to him at the cash register as he pays for a anniversary gift for his wife. Because I'll bet he wouldn't be ok with this. And while technology has made surveillance less obvious, this is exactly what some of the more controversial PATRIOT Act powers allow the government to do with only the vaguest of reasons and little or no oversight.

The obligation to demonstrate that the government is not abusing an individual's rights should not be on the shoulders of that individual. That burden should be squarely on the government's shoulders. The 9-11 Commission endorsed this notion, recommending that ``the burden of proof for retaining a particular governmental power should be on the executive .......''

With respect to the overall bill, in our part of the world we are terribly concerned about what is going on with methamphetamine. Senator Smith and I have worked very closely on a bipartisan basis with our colleagues to get a good anti-meth program. The administration comes along at the 11th hour and politicizes this meth issue at a time when we could pass it with a 100-0 vote.

As a cosponsor of the Combat Meth Act, I intend to continue to fight for the passage of the meth bill but not as a part of this badly flawed legislation. And while my decision was made more difficult by the fact that legislation addressing the meth crisis was included in the conference report, I will be opposing the conference report and opposing cloture.

I want it understood I am anxious to work with my colleagues on a bipartisan basis, but given this particular climate and the need to constantly keep the teeter-totter balance--fighting terrorism aggressively, protecting the civil liberties of our country--it seems to me we have to be very judicious with respect to how tools such as the national security letter are being used. Any way you cut it, my colleagues, I don't see that taking place.

So more time is needed to make the necessary corrections to the conference report to ensure that the PATRIOT Act Reauthorization promotes Americans' security and protects their rights and freedoms. The Senate should not be coerced into accepting a piece of legislation that allows the Federal Government to reach, unchecked, further into the personal life of every American, with fewer means of appeal and less oversight.

I therefore urge my colleagues to support the proposal submitted by Senator Leahy and Senator Sununu extending the expiring provisions of the PATRIOT Act for 3 months. I ask unanimous consent that my statement be printed in the RECORD.

I yield the floor.

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Mr. WYDEN. As my friend knows, I think virtually everything the Senator from Pennsylvania does is meritorious. I am troubled, though, about where we are with the national security letters. Yes, they existed for years, but they were greatly expanded with the PATRIOT Act. We know that. I am also concerned as we consider this kind of legal language that there will be a chilling effect on the exercise of the right to counsel, and I get that again without being able to go into the details because of my examination of the issue. I am not going to debate the Senator's good-faith efforts; they have always been to try to strike a balance. But I am concerned that something that even the Government--the executive branch admits this is a tool that should be used carefully, at a time, as I said, when you open the morning newspaper and every day you see another effort to not strike this balance. I think we ought to stay at this national security letter issue and deal with concerns raised here with respect to secrecy and exercise of right to counsel.

My good friend from Pennsylvania and I have worked together on so many issues, and I want him to know of my desire to do it and my respect for his ability to get into some of these technical questions in a fashion that is almost unparalleled.

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