FISA Sunsets Extension Act of 2011

Floor Speech

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Mr. DURBIN. Mr. President, in a few minutes we are going to vote on a 3-month extension of the expiring provisions of the PATRIOT Act. I will support this extension because it gives the Senate time to properly consider this critically important legislation. But before I support any additional extensions of the PATRIOT Act, I believe we should have an honest discussion about changes and reforms that are necessary to protect the constitutional rights of innocent Americans. It is worth taking a moment to reflect on the history of the PATRIOT Act.

The PATRIOT Act was passed almost 10 years ago after the 9/11 terrorist attack. Ground Zero was still burning when President Bush asked Congress to give him new authority to fight terrorism. Congress responded, passing the PATRIOT Act by an overwhelming bipartisan vote, including my own. It was a unique moment in our history.

But even then, many were concerned that the PATRIOT Act might go too far when it came to our constitutional rights and freedoms. As a result, we put an insurance policy in the law, a sunset clause on the PATRIOT Act's most controversial provisions. I believe that was a thoughtful move on the part of the Senate and the House. We knew that we were in a very emotional state because of the dramatic loss of life and fear that followed after the attacks on 9/11. We wanted to reflect on some of the changes and authority given to the government at a later time.

I voted for the PATRIOT Act, but I soon realized it gave too much power to the government in some areas, without judicial and Congressional oversight. So 2 years after the PATRIOT Act became law, I led a bipartisan group of Senators to introduce the SAFE Act, legislation to reform the PATRIOT Act. The SAFE Act was supported not only by the American Civil Liberties Union but also by the American Conservative Union and Gun Owners of America. It was an extraordinary coalition. Progressive Democrats and conservative Republicans came together across the partisan divide, with the understanding that Americans believed we can be both safe and free. We wanted to retain the expanded powers of the PATRIOT Act but place some reasonable limits on those powers within the bounds of the Constitution.

In 2005, the first time Congress reauthorized the PATRIOT Act, some reforms of the SAFE Act were included in the bill. Many were not. So there are still significant provisions in the PATRIOT Act which cause concern to this Senator. The FBI is still permitted to obtain a John Doe roving wiretap that does not identify the person or the phone that will be wiretapped.

In other words, the FBI can obtain a wiretap without telling a court who they want to wiretap or where they want the place the wiretap itself. In garden-variety criminal cases, the FBI is still permitted to conduct what is known as sneak-and-peek searches of a home without notifying the homeowner about the search until some later time.

We now know the vast majority of sneak-and-peek searches take place in cases that do not involve terrorism in any way. A national security letter, or NSL, is a form of administrative subpoena issued by the FBI. We often hear NSLs compared to grand jury subpoenas. But unlike a grand jury subpoena, a national security letter is issued without the approval of a grand jury or even a prosecutor. And unlike the grand jury subpoena, the recipient of a national security letter is subject to a gag order at the FBI's discretion.

The PATRIOT Act greatly expanded the FBI's authority to NSLs. An NSL now allows the FBI to obtain sensitive personal information about innocent Americans, including library records, medical records, gun records, and phone records, even when there is no connection whatsoever to a suspected terrorist or spy.

The Justice Department's inspector general concluded that this standard ``can be easily satisfied.'' This could lead to government fishing expeditions that target, unfortunately, innocent Americans.

For years we have been told there is no reason to be concerned about this broad grant of power to the FBI. In 2003, Attorney General Ashcroft testified to the Judiciary Committee that librarians who raised concern about the PATRIOT Act were ``hysterics,'' in the Attorney General's words, and ``the Department of Justice has neither the staffing, the time, nor the inclination to monitor the reading habits of Americans.''

But we now know, many years later, the FBI has, in fact, issued national security letters for the library records of innocent Americans. For years we were told the FBI was not abusing this broad grant of power. But in 2007, the Justice Department's own inspector general concluded the FBI was guilty of ``widespread and serious misuse'' of the national security letter authority, and failed to report those abuses to Congress and a White House oversight board.

The inspector general reported that the number of NSL requests had increased exponentially from about 8,500 the year before the enactment of the PATRIOT Act to an average of more than 47,000 per year, and that even these numbers were significantly understated due to flaws in the FBI database.

I believe America can be both safe and free. We can retain the expanded powers of the PATRIOT Act but place some reasonable limit on them within our Constitution. I will support this extension so we have time to produce legislation of which we can all be proud. I know the chairman of the Judiciary Committee is on the floor to speak. I want to close by saluting him. I think he has taken a very professional approach. He has been completely open to this discussion of the provisions of this bill, and the offering of amendments. I plan to work with him and other members of the committee in good faith. I think this 3-month extension will give us time to expand the debate on this important constitutional issue.

I yield the floor.

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