Small Business Additional Temporary Extension Act of 2011

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Mr. DURBIN. Madam President, it is my understanding that we have a consent that will allow Senator Paul to offer two amendments, and then we will go to final passage on this reauthorization of the PATRIOT Act.

The PRESIDING OFFICER. That is correct.

Mr. DURBIN. I will oppose the amendments offered by Senator Paul, and then oppose the reauthorization of the PATRIOT Act. I would like to explain in my remarks why.

I voted for the PATRIOT Act in the year 2001. In fact, there was only one Senator on the floor--who no longer serves--who voted against it. It was a moment of national crisis. We were told then by the Bush administration they needed new authorities to make certain that America would be safe and never attacked again.

I want to salute Senator Patrick Leahy, as well as his counterparts on both sides of the aisle, who worked night and day to put together a bipartisan version of this PATRIOT Act and had the good sense to include in it a sunset. We knew we were writing a law with high emotion over what had happened to our country. We wanted to make sure it was a good law, but we made certain it would be temporary in nature, for the most part, and we would return and take another look at it. I cannot vote for an extension, a long-term extension, of the PATRIOT Act without additional protections included for the constitutional rights of our American citizens.

It is worth taking a moment to review the history. The PATRIOT Act was passed 10 years ago--almost 10 years

ago--while Ground Zero was still burning. Congress responded and passed it with an overwhelming bipartisan vote. It was a unique moment in our history. But even then we were concerned enough to put a sunset and to do our best to review it in the future to determine whether it went too far when it came to our freedoms. I voted for it, but I soon realized that it gave too much power to government without enough judicial and congressional oversight.

So 2 years after the PATRIOT Act became law, I joined a bipartisan group of Senators in introducing the SAFE Act, legislation to reform the PATRIOT Act. The SAFE Act was supported by advocates from the left and right, from the ACLU to the American Conservatives Union. Progressive Democrats and very conservative Republicans came together across the partisan divide understanding Americans can be both safe and free.

We wanted to retain the expanded powers of the PATRIOT Act but place some reasonable limits to protect constitutional rights. When he joined the Senate in 2005, Senator Barack Obama became a cosponsor of our SAFE Act. Here is what he said as a Senator:

We don't have to settle for a PATRIOT Act that sacrifices our liberties or our safety. We can have one that secures both.

I agree with then-Senator Obama. In 2006, the first time Congress reauthorized the PATRIOT Act, some reforms from the SAFE Act were included in the bill, and I supported it. However, many key protections from the SAFE Act were not included, so there are still significant problems.

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 to wiretap.

In garden variety criminal cases, the FBI is still permitted to conduct sneak-and-peak searches of a home without notifying the homeowner about the search until a later time. We now know the vast majority of sneak-and-peak 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 an NSL is subjected to a gag order at the FBI's discretion.

The PATRIOT Act also greatly expanded the FBI's authority to issue NSLs. An NSL now allows the FBI to obtain sensitive personal information about innocent American citizens, 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 innocent people.

For years we have been told there is no reason to be concerned about this broad grant of power to the FBI. In 2003, then-Attorney General Ashcroft testified to our committee that librarians raising concerns about the PATRIOT Act were ``hysterics'' and that ``the Department of Justice has neither the staffing, the time, nor the inclination to monitor the reading habits of Americans.'' But we now know the FBI has, in fact, issued national security letters for the library records of innocent people.

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 has concluded the FBI was guilty of ``widespread and serious misuse'' of the national security letter's authority and failed to report these abuses to Congress and the White House.

The inspector general reported that the number of national security letter requests has increased exponentially from about 8,500 the year before enactment of the PATRIOT Act to an average of more than 47,000 per year, and even these numbers were significantly understated.

We can be safe and free. I think it is important that the measure that passed the Senate Judiciary Committee should have been on the Senate floor. It included an amendment which I offered with Senator Leahy and other provisions which I think are an improvement over the current bill before us.

I will say one quick word about the amendment by Senator Paul. I do not believe it is in our Nation's best interests to exempt gun records from terrorist investigations. For goodness' sake, when we are dealing with people--terrorists using guns--searching the records to make certain that we know the source of those guns and whether there are any other threats to this Nation is reasonable to do.

These should not be so sacred and sacrosanct that we do not ask the hard questions when our Nation's security is at risk. I would agree with him that we ought to make certain there is a connection between that request for gun record information and a suspected terrorist or spy. But to say these records cannot be asked for under the PATRIOT Act goes too far. That is why I will oppose his amendment.

I yield the floor.

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