Statements on Introduced Bills and Joint Resolutions
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - April 04, 2005)
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By Mr. CORNYN:
S. 693. A bill to provide for judicial review of national security letters issued to wire and electronic communications service providers; to the Committee on the Judiciary.
Mr. CORNYN. Mr. President, it has been nearly 4 years since the terrorist attacks of September 11, 2001. In the days, weeks, and months since that day, the American people have braced themselves for the possibility of another terrorist attack on our homeland. After all, we know all too well that al-Qaida is a stealthy, sophisticated, and patient enemy, and that its leadership is extremely motivated to launch another devastating attack on American soil and American citizens.
In fact, outside the United States, al-Qaida and affiliates of al-Qaida have continued to be enormously active, responsible for numerous terrorist attacks on foreign soil in the last few years:
2001 (Dec.): Man tried to denote shoe bomb on flight from Paris to Miami.
2002 (April): Explosion at historic synagogue in Tunisia left 21 dead, including 14 German tourists.
2002 (May): Car exploded outside hotel in Karachi, Pakistan, killing 14, including 11 French citizens.
2002 (June): Bomb exploded outside American consulate in Karachi, Pakistan, killing 12.
2002 (Oct.): Boat crashed into oil tanker off Yemen coast, killing one.
2002 (Oct.): Nightclub bombings in Bali, Indonesia, killed 202, mostly Australian citizens.
2002 (Nov.): Suicide attack on a hotel in Mombasa, Kenya, killed 16.
2003 (May): Suicide bombers killed 34, including 8 Americans, at housing compounds for Westerners in Riyadh, Saudi Arabia.
2003 (May): Four bombs killed 33 people targeting Jewish, Spanish, and Belgian sites in Casablanca, Morocco.
2003 (Aug.): Suicide car-bomb killed 12, injured 150 at Marriott Hotel in Jakarta, Indonesia.
2003 (Nov.): Explosions rocked a Riyadh, Saudi Arabia housing compound, killing 17.
2003 (Nov.): Suicide car-bombers simultaneously attacked two synagogues in Istanbul, Turkey, killing 25 and injuring hundreds.
2003 (Nov.): Truck bombs detonated at London bank and British consulate in Istanbul, Turkey, killing 26.
2004 (March): Ten terrorists bombs exploded almost simultaneously during the morning rush hour in Madrid, Spain, killing 202 and injuring more than 1,400.
2004 (May): Terrorists attacked Saudi oil company offices in Khobar, Saudi Arabia, killing 22.
2004 (June): Terrorists kidnapped and executed American Paul Johnson, Jr., in Riyadh, Saudi Arabia.
2004 (Sept.): Car bomb outside the Australian embassy in Jakarta, Indonesia, killed nine.
2004 (Dec.): Terrorists enter the U.S. Consulate in Jiddah, Saudi Arabia, killing nine (including 4 attackers).
It is precisely because al-Qaida is so aggressive, so motivated, and so demonstrably hostile to America, that I am so grateful that, to date, al-Qaida still has not successfully launched another terrorist attack on our own soil. There are undoubtedly many reasons for this. First and foremost, I am profoundly thankful to the brave men and women of our Armed Forces, who fight the terrorists abroad so that we do not have to face them at home. I also firmly believe that our efforts to strengthen anti-terrorism and law enforcement tools right here at home have much to do with this record of success and peace in our homeland to date.
It is within this important context that a Senate Judiciary Committee hearing tomorrow morning will commence a new round of discussions about the USA PATRIOT Act. As I explained in an op-ed published in the Washington Times just this morning, I welcome that hearing, because the American people deserve an honest, responsible, and fair discussion to ensure that we are indeed fulfilling our dual responsibilities to protect national security and civil liberties alike.
Unfortunately, the debate about the USA PATRIOT Act has not always met that standard. Last fall, just weeks before the Presidential election, we even witnessed false reports in newspapers across the country that a Federal court had struck down parts of the act as unconstitutional. False reports and scare tactics serve no legitimate cause and greatly disserve the American people.
The war on terrorism must be fought aggressively but consistently with the protection of civil rights and civil liberties. Whenever real civil liberties problems do arise, we must learn about them right away, so that we can fix them swiftly.
It is for precisely this reason that I have long been concerned about false allegations of civil rights deprivations. Every false allegation undermines every true allegation, and that hurts us all.
After all, scaring people about false civil rights deprivations unnecessarily divides our Nation and makes no one safer. If anything, false claims about civil liberties actually make it harder to monitor real civil liberties issues in the future--for the same reason that eventually no one listened to the fabled little boy who kept ``crying wolf.''
After several weeks of negotiation, Congress in 2001 enacted the USA PATRIOT Act by overwhelming bipartisan margins--98-1 in the Senate and 357-66 in the House. At the time, Senators on both sides of the aisle agreed that the legislation had struck a careful and wise balance between national security and civil liberties.
The record continues to be strong to this day. As Senator DIANNE FEINSTEIN at a Senate Judiciary Committee oversight hearing during the last Congress, ``I have never had a single abuse of the PATRIOT Act reported to me. My staff e-mailed the ACLU and asked them for instances of actual abuses. They e-mailed back and said they had none.''
The ACLU did allege in a press release last September that a Federal court had struck down parts of the USA PATRIOT Act--calling the decision ``a landmark victory against the Ashcroft Justice Department.'' See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004). The litigation is currently on appeal.
Newspapers across the country immediately repeated the ACLU's message. But as legal experts immediately discovered, there were two important problems with the allegation: they were attacking the wrong person, and the wrong law.
In fact, the court had actually struck down a law authored by Senator PATRICK LEAHY during the 1980s. That statute balanced the national interest in protecting electronic communications privacy against the legitimate needs of national security, by establishing a procedure for obtaining electronic communications records in certain national security investigations through the use of so-called ``national security letters.'' The USA PATRIOT Act amended the law to make clear that such letters could be issued in terrorism investigations as well.
So the statute in question was written by LEAHY, not Ashcroft. And it was the Electronic Communications Privacy Act of 1986, not the USA PATRIOT Act in 2001. Indeed, the USA PATRIOT Act did not change a single word of any provision attacked by that court.
What's more, in 1986, the ACLU endorsed the Electronic Communications Privacy Act. And shortly after that law was approved by the Senate on a voice vote and the House by unanimous consent, the chief legislative counsel of the ACLU called it a ``significant advancement of privacy rights of citizens in the age of new communications technology.''
None of this stopped the ACLU in 2004, however, from charging that the court's ruling was ``the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.''
The ACLU has since backed down and admitted that they had attacked the wrong law. As ACLU attorney Jameel Jaffer eventually conceded, ``the provisions that we challenged and that the court objected to were in the statute before the Patriot Act was passed. We could have raised the same objections before the power was expanded.'' Nevertheless, it hurts all of us whenever an allegation about civil liberties is discredited--because it makes it that much easier to ignore legitimate civil liberties problems that may arise in the future.
It's also worth noting that the primary controversy in the litigation--whether judicial review is available to scrutinize the issuance of national security letters--was not actually disputed by the government. To the contrary, the Justice Department agreed that there should be judicial review. The court simply concluded that the 1986 law was not drafted with sufficient clarity to authorize such review.
Today, I introduce legislation to cure this technical defect, and to amend the Electronic Communications Privacy Act to make explicit the availability of judicial review to examine national security letters. The legislation is entitled the Electronic Communications Privacy Judicial Review and Improvement Act of 2005. I ask unanimous consent that the text of the legislation, as well as a section-by-section analysis of the legislation prepared by my office, be printed in the RECORD.
I hope that this legislation will be enacted in the same bipartisan spirit that put both the Electronic Communications Privacy Act and the USA PATRIOT Act on the books. And I hope that future discussions about the war on terrorism, civil liberties, and the USA PATRIOT Act will be honest, responsible, and fair.
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