USA Patriot Act Additional Reauthorizing Amendments Act of 2006

USA PATRIOT ACT ADDITIONAL REAUTHORIZING AMENDMENTS ACT OF 2006

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Mr. DURBIN. Mr. President, I rise to speak about S. 2271, Senator Sununu's bill to amend the PATRIOT Act. I commend Senator JOHN SUNUNU of New Hampshire for his extraordinary efforts on this bill.

For over 2 years he has been part of a bipartisan coalition, which I have been happy to join him in, working to reform the PATRIOT Act. We support the PATRIOT Act. We want it to include checks and balances to protect the constitutional rights of Americans. In other words, we want to improve the PATRIOT Act, not abandon it.

We came together across party lines for this effort because our national security and constitutional rights are important to every American. The PATRIOT Act should not be a political football.

When we launched this effort 2 years ago, the administration said changing even one word in the PATRIOT Act was unacceptable. I have said that when it comes to writing laws, with the exception of the Ten Commandments which were handed down on stone tablets, there are no perfect laws; we should always try to improve them.

Now, with Senator Sununu's bill and the PATRIOT Act conference report, we will reauthorize the PATRIOT Act with significant reforms, reforms we proposed as long as 2 years ago.

Let me say up front this outcome is far from perfect. There is still a lot of work to be done.

But the administration was willing to let the PATRIOT Act expire rather than accept some of the reforms we proposed. We will not let that happen. The PATRIOT Act will not expire on our watch.

We are going to reauthorize the PATRIOT Act with new checks and balances that will help protect innocent Americans, but we will not stop our fight for additional necessary reforms.

Let me take a few minutes to review the history of the PATRIOT Act. During a time of national crisis, shortly after September 11, the President came to us, asking Congress for new tools and new authority to fight terrorism. While the ruins of the World Trade Center were still smoldering, Congress responded on a bipartisan basis, with dispatch, to give this administration what they wanted to be able to fight terrorism. We passed the PATRIOT Act with overwhelming bipartisan support.

We understood it was a unique moment in history. We had to act quickly. Even then we were concerned that perhaps the PATRIOT Act went too far. So we included sunsets so we could review this law after four years and reflect on whether we had made the right decision.

There is now a widespread, bipartisan consensus that the PATRIOT Act went too far in several specific areas. The vast majority of the provisions of the PATRIOT Act are not controversial. But in a few specific areas, there is broad agreement that the PATRIOT Act does not include adequate checks and balances to protect the civil liberties of innocent Americans.

As a result, Senator LARRY CRAIG and I introduced the Security and Freedom Enhancement Act, also known as the SAFE Act, to address these specific areas of concern. We were joined by our colleagues Senators SUNUNU, FEINGOLD, MURKOWSKI, and SALAZAR.

We crossed a broad and wide political divide to come together. This is really the gathering of political odd fellows, but we all shared the same goal: protecting constitutional freedoms while still protecting the security of America.

The administration threatened to veto the SAFE Act if it ever came before them. They claimed that it would ``eliminate'' some PATRIOT Act powers. In fact, the SAFE Act would not repeal a single provision of the PATRIOT Act. It would retain the expanded powers created by the PATRIOT Act but place important limits on these powers.

The bill attracted an enormous amount of support from across the political spectrum, from the most conservative to the most liberal groups in Washington. I have never seen another bill like our SAFE Act that attracted that kind of support.

It also was supported by the American Library Association because it would prevent the Government from snooping through the library records of innocent Americans.

I thank America's librarians for their efforts and tell them that it paid off. They were not taking a hysterical position, as some in the administration branded it. They were taking the right position--standing up for the freedoms we hold dear in this country.

The conference report, as amended by the Sununu bill, includes a number of checks and balances that are based on provisions of the SAFE Act.

Under the PATRIOT Act, the FBI is now permitted to obtain a John Doe roving wiretap, a sweeping authority never before authorized by Congress. A John Doe roving wiretap does not specify the person or phone to be wiretapped. In other words, the FBI can obtain a wiretap without telling a court whom they want to wiretap or where they want to wiretap.

Like the SAFE Act, the PATRIOT Act conference report would continue to allow roving wiretaps, but it places a reasonable limit on these so-called John Doe roving wiretaps. In order to obtain a John Doe roving wiretap, the Government would now be required to describe the specific target of the wiretap to the judge who issues the wiretap order. This will help protect innocent Americans.

Under the PATRIOT Act, the FBI can search your home without telling you until some later date. These sneak-and-peek searches are not limited to terrorism cases.

Like the SAFE Act, the conference report would require the Government to notify a person who is subjected to a sneak-and-peek search within a specific period of time, 30 days, rather than the undefined delay currently permitted by the PATRIOT Act. The court could allow additional delays of notice under compelling circumstances.

Section 215 of the PATRIOT Act is often called the library records provision. This section has been the focus of much of our efforts.

Under section 215, the FBI can obtain your library, medical, financial, or gun records simply by claiming they are seeking the records for a terrorism investigation. If the FBI makes this claim, the court must issue an order. It has no ability to even question the FBI about why they want to look into your sensitive personal information. This type of court approval is nothing more than a rubberstamp.

Defenders of this section often compare to it a subpoena by a grand jury in a criminal case, but it couldn't be more different. A person who receives a grand jury subpoena can challenge it in court. A person who receives a section 215 order cannot go to a judge to challenge the order, even if he believes his rights have been violated.

Courts have held that it is unconstitutional to deny someone the right to go to court to challenge an order like this.

Also, unlike a person who receives a grand jury subpoena, the recipient of a section 215 gag order is subject to an automatic permanent gag order.

And a person who receives a Section 215 order has no right to go to a judge to challenge the gag order. Courts have held that gag orders that cannot be challenged in court violate the first amendment.

Like the SAFE Act, the PATRIOT Act conference report, as amended by Senator SUNUNU's bill, will place some reasonable checks on section 215.

In order to obtain a section 215 order, the Government will now have to convince a judge that they have reasonable grounds to believe the information they seek is relevant to a terrorism investigation. The court will have the ability to question the FBI before issuing a section 215 order.

This is an improvement, but I'm still concerned that the Government is not required to show a connection to a suspected terrorist in order to obtain section 215 order. I will speak more about this later.

The FBI will also be required to follow so-called minimization procedures. These procedures should help to protect innocent Americans by limiting the retention and dissemination of information obtained with section 215 orders.

The recipient of section 215 order will now have the ability to consult with an attorney.

Judicial oversight will also be enhanced. The recipient of a section 215 order will now have the right to challenge the order in court on the same grounds as he could challenge a grand jury subpoena.

And, if Senator SUNUNU's bill passes, the recipient of a section 215 order will also have the right to challenge the gag order in court.

The PATRIOT Act expanded the Government's authority to use national security letters which are also known as NSLs.

An NSL is a type of administrative subpoena. It is a document signed by an FBI agent that requires businesses to disclose the sensitive personal records of their customers.

An NSL does not require the approval of a judge or a grand jury. A business that receives an NSL is subject to an automatic, permanent gag order.

As with section 215 orders, a person cannot go to a judge to challenge an NSL or the NSL's gag order, and he can't consult with an attorney.

Like the SAFE Act, the PATRIOT Act conference report, as amended by Senator SUNUNU's bill, will place some reasonable checks on NSLs.

Most important, the Sununu bill clarifies that the government cannot issue a national security letter to a library that is functioning in its traditional role, which includes providing computer terminals with basic Internet access.

As with section 215 orders, the recipient of an NSL will now have the right to consult with an attorney, and the right to challenge the NSL or the NSL's gag order in court.

Like the SAFE Act, the conference report will also require public reporting on the use of PATRIOT Act authorities, including the number section 215 orders and NSLs issued by the Government.

Finally, the conference report includes a sunset on three provisions of the law, including section 215, so Congress will again have an opportunity to review the PATRIOT Act at the end of 2009.

As I said earlier, the conference report is not perfect. That's the nature of a compromise.

I am especially concerned about the need for additional checks on section 215 and national security letters.

The conference report would allow the Government to use section 215 orders or NSLs to obtain sensitive personal information without showing some connection to a suspected terrorist. I fear that this could lead to Government fishing expeditions that target innocent Americans.

In this country, you have the right to be left alone by the Government unless you have done something to warrant scrutiny.

When the FBI is conducting a terrorism investigation they shouldn't be able to snoop through your library, medical, or gun records unless you have some connection to a suspected terrorist.

I am also very concerned about unnecessary limits on judicial review of section 215 national security letter gag orders. The conference report requires the court to accept the Government's claim that a gag order should not be lifted, unless the court determines the Government is acting in bad faith. This will make it difficult to get meaningful judicial review of a gag order.

As I said earlier, our bipartisan coalition is going to keep working for additional reforms to the PATRIOT Act.

In fact, Senator CRAIG, Senator SUNUNU and I plan to introduce an updated version of the SAFE Act to address the problems that still exist with the PATRIOT Act.

Our great country was founded by people who fled a government that repressed their freedom in the name of security. The Founders wanted to ensure that the United States Government would respect its citizens' liberties, even during times of war. That's why there is no wartime exception in the Constitution.

The 9/11 Commission said it best: The choice between security and liberty is a false one. Our bipartisan coalition believes the PATRIOT Act can be revised to better protect civil liberties. We believe it is possible for Republicans and Democrats to come together to protect our fundamental constitutional rights and give the Government the powers it needs to fight terrorism. We believe we can be safe and free.

That's why we're going to reauthorize the PATRIOT Act with new checks and balances. And that's why we'll keep fighting for additional reforms to the PATRIOT Act.

Senators CRAIG, SUNUNU, and others have joined me in improving the PATRIOT Act as originally written. There are still serious problems with the PATRIOT Act, but I think this conference report, as amended by Senator Sununu's bill, is a positive step forward. That is why I am supporting it.

I promise, as they say, eternal vigilance, watching this administration and every administration to make certain they don't go too far. If they overstep, if they step into areas of privacy and constitutional rights, I will speak out and do my best to change the PATRIOT Act and make it a better law.

I yield the floor.

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Mr. DURBIN. Mr. President, at this moment, I wish to address the bill pending before the Senate, and that is S. 2271.

I commend Senator JOHN SUNUNU of New Hampshire, who is here in the Chamber. Were it not for his hard work, we would not be here today. For weeks, while many of us were doing other things back home, Senator Sununu was working assiduously with the White House to find a way to address some very vexing and challenging issues when it came to modifying the PATRIOT Act. He has done an excellent job. I commend him and tell him that I have enjoyed working with him over the last 2 years, where we have crossed party lines and tried to find ways to keep the PATRIOT Act as a tool to make America safe but also at the same time to protect our basic liberties.

Every step of the way, as we considered changes to the PATRIOT Act, we have been supported by our Nation's librarians. These are wonderful men and women--professionals--who are dedicated to the libraries across America, which are such rich resources. I thank the librarians of America, especially for their heroic efforts to amend the PATRIOT Act in a responsible way and, equally as important, to defend our Constitution.

I understand that section 5 of Senator Sununu's bill, S. 2271, will help protect the privacy of Americans' library records. I ask the indulgence of the Chair that I might enter into a colloquy with Senator Sununu relative to section 5.

I would like to ask Senator Sununu, through the Chair, if he could explain to me what section 5 will accomplish.

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Mr. DURBIN. I thank the Senator from New Hampshire. It is my understanding that most public libraries, as he explained, offer Internet access to the public. Because of this, they are concerned that the Government might consider them to be communications service providers similar to the traditional providers, such as AT&T, Verizon, and AOL.

So if I understand it correctly, your bill clarifies that libraries, simply because they provide basic Internet access, are not communications service providers under the law and are not subject to national security letters as a result. I ask the Senator from New Hampshire, through the Chair, is that a correct conclusion?

Mr. SUNUNU. Mr. President, I absolutely believe that the conclusion of the Senator from Illinois is correct. A library providing basic Internet access would not be subject to a National Security Letter as a result of that particular service and other services that are very much in keeping with the traditional role of libraries.

Some have noted or may note that basic Internet access gives library patrons the ability to send and receive e-mail by, for example, accessing an Internet-based e-mail service. But in that case, it is the Web site operator who is providing the communication service--the Internet communication service provider itself--and not the library, which is simply making available a computer with access to the Internet.

So I certainly share the concerns of the Senator from Illinois and others who have worked very long and hard on this and other provisions. I think it does add clarity to the law as he described, in addition to providing other improvements to the PATRIOT Act as they relate to civil liberty protections. All along, this has been about providing law enforcement with the tools that they need in their terrorism investigations while, at the same time, balancing those powers with the need to protect civil liberties. I think, in the legislation before us, we have added clarity to the law in giving access to the courts to object to section 215 gag orders and, of course, striking a very punitive provision dealing with counsel and not forcing the recipient of a National Security Letter to disclose the name of their attorney to the FBI.

All of these are improvements to the underlying legislation, and I recognize that we had a overwhelming, bipartisan vote today to move forward on this package. I anticipate that we will have similar bipartisan votes in the days ahead to conclude work on this legislation and get a much improved PATRIOT Act signed into law.

Mr. DURBIN. I thank the Senator from New Hampshire, as well, because that clarification is important. So if a library offers basic Internet access, and within that access a patron can, for example, send and receive e-mail by accessing an Internet-based e-mail service such as Hotmail, for example, that does not mean the library is a communications service provider and, therefore, it does not mean that a library could be subject to these national security letters of investigation.

By way of comparison, a gas station that has a pay phone isn't a telephone company. So a library that has Internet access, where a person can find an Internet e-mail service, is not a communications service provider; therefore, it would not fall under the purview of the NSL provision in 18 U.S.C. 2709. It is a critically important distinction. I thank the Senator from New Hampshire for making that clear and for all of his good work on this bill.

Libraries are fundamental to America. They symbolize our access to education. They are available to everyone, regardless of social or economic status.

When we first introduced the SAFE Act, I went to the Chicago Public Library to make the announcement. The library was established in 1873, and for over 130 years it has given the people of the City of Chicago the ability to read and learn and communicate. Here is what the mission statement says at that public library:

We welcome and support all people and their enjoyment of reading and pursuit of lifelong learning. We believe in the freedom to read, to learn, and to discover.

We have to ensure, in the Senate and in Congress, in the bills that we pass, including the PATRIOT Act, that this freedom to read, learn, and discover is preserved for our children and our grandchildren.

Mr. President, I yield the floor and I suggest the absence of a quorum.

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