Amendment No. 537

Mr. SCHUMER. I thank the Chair.
    
Mr. President, I rise in reluctant, but considered, opposition to the amendment of my good friend from California. I thank her and the Senator from Wisconsin for their roles in this area. My colleague from California and I usually share many of the same views on law enforcement issues, and we work closely together. I say usually, it is the other way around. I am on one side, and she is trying to put together the compromise. Now she is trying to put another compromise together. I respect her for that.
    
I say to the Senator from California and the Senator from Wisconsin, who is a devout believer in the freedom and liberty this country cherishes and a constant watchdog on our committee, I have great respect for both of them. This is a good debate because in our brave new post-9/11 world, we have to balance liberty and security and, obviously, some adjustments have to be made.
    
The Founding Fathers knew that in times of war, in times of crisis, security might gain a little. I do not think this is an issue of security versus liberty, though. I do think it is an issue of the new technologies that are available and allows individuals or small groups of individuals unknown before to do real damage to America. Then 10 years ago, you knew who was going to hurt you. It would be a nation. It would be an established group of terrorists. But today, any small group can pop up, even individuals, and do such damage. That is what has caused the Senator from Arizona and I to change the law.
    
I think the Feinstein amendment is well-intentioned, and honestly it recalibrates the balance in a little different way than I would. This is what the debate is about. My guess is, if Washington, Jefferson, or Madison were looking down on the Senate Chamber, they would want us to have this debate. It is a good thing we are having this debate. I appreciate it.
    
I am going to be brief. I know we want to deal with this amendment.
    
My objection to the amendment of the Senator from California is that it does leave discretion in the hands of the judge—the very purpose of the amendment. I do not think there ought to be discretion when there is probable cause that some individual or small group, whether they can be connected to a terrorist group, a known terrorist group, a terrorist organization or not—I do not think there should be discretion in getting that FISA warrant. Obviously, the judge will have discretion, so to speak, in determining if probable cause is there. So this is hardly a straitjacket, even the amendment we have proposed.
    
If the judge does not find probable cause to engage or prepare to engage in terrorist activity, there is not going to be a warrant.
    
The other point I want to stress, of course, and this matters to me—I know some in the civil liberties community say everyone who is dealing with American law should have the same rights. This does not affect citizens or those who hold green cards. I think it strikes a fair balance. The idea of giving the judge discretion, the so-called permissive presumption, in my judgment, goes too far.
    
One of the problems we had with the Moussaoui case was that the FBI was unsure that they could seek a warrant. They did not think the law allowed them to seek a warrant. That is what brought up our amendment.
    
With the Feinstein amendment, they would still not have that certainty. You also might get in the very same case a judge in California ruling one way and a judge in New York ruling another way. I do not think we want confusion, differing opinions, judicial discretion when clearly probable cause is met.
    
I realize that my good friend from California seeks an ability to check on the abuse of FISA. I agree with her. I argue this is the wrong way to do it. Again, if probable cause is established, it should not matter if it is a lone wolf or a known terrorist group or a known terrorist organization. To have different judges come to different conclusions about that I do not think helps move our law, move our safety, or, for that matter, further protect our liberties.
    
I urge my colleagues to vote against this amendment. It is well intentioned. It does seek to understand the balance between liberty and security, but it would do it in a way that I think is not advised, particularly in our post-9/11 world. I urge my colleagues to vote down the amendment.
    
Mr. President, I yield the floor.