February 15, 2006 - On the Patriot Act Deal

Senator Russ Feingold - Gonzeles
http://www.apfn.net/audio/212105530-Gonzales-Hearing.MP3

Statement of U.S. Senator Russ Feingold
On the Patriot Act Deal
http://feingold.senate.gov/~feingold/statements/06/02/2006215.html

As Prepared For Delivery From the Senate Floor

Listen to my Statement from the Senate Floor
http://feingold.senate.gov/feingold060215.mp3

February 15, 2006

Mr. President, it will come as no surprise that I’d like to talk about the Patriot Act today. I strongly oppose proceeding to consideration of S. 2271, which is legislation introduced by some of my friends and colleagues to implement the deal on the Patriot Act that was struck with the White House last week. Some may argue that there’s no harm in passing a bill that could charitably be described as trivial. But protecting the rights of law-abiding Americans is not trivial. And passage of S. 2271 is the first step toward passage of the flawed Patriot Act conference report. I will oppose both measures and I am prepared to explain at length my reasons for doing so.

While I greatly respect the Senators who negotiated this deal, I am gravely disappointed in the outcome. The White House would agree to only a few minor changes to the same Patriot Act conference report that could not get through the Senate back in December. These changes do not address the major problems with the Patriot Act that a bipartisan coalition has been trying to fix for the past several years. They are, quite frankly a fig leaf to allow those who were fighting hard to improve the Act to now step down, claim victory, and move on. What a hollow victory that would be, and what a complete reversal of the strong bipartisan consensus that we saw in this body just a couple months ago. What we are seeing is quite simply a capitulation to the intransigent and misleading rhetoric of a White House that sees any effort to protect civil liberties as a sign of weakness. Protecting American values is not weakness, Mr. President. Standing on principle is not weakness. And committing to fighting terrorism aggressively without compromising the rights and freedoms this country was founded upon – that’s not weakness either. We’ve come too far and fought too hard to agree to reauthorize the Patriot Act without fixing any of the major problems with the Act. A few insignificant, face-savings changes just don’t cut it. I cannot support this deal, and I strongly oppose proceeding to legislation that will implement it.

I understand the pressure that my colleagues have been under on this issue, and I appreciate all the hard work that they have done on the Patriot Act. It has been very gratifying to work on a bipartisan basis on this issue. It is unfortunate that the White House is so obviously trying to make this into a partisan issue, because it sees some political advantage to doing so. Whether the White House likes it or not, this will continue to be an issue where both Democrats and Republicans have concerns, and we will continue to work together for changes to the law. I am sure of that.

But I will also continue to strongly oppose any reauthorization of the Patriot Act that does not protect the rights and freedoms of law-abiding Americans with no connection to terrorism. This deal does not meet that standard – it doesn’t even come close. I urge my colleagues to oppose it, and therefore I ask that they oppose proceeding to this legislation.

I wanted to take some time today to lay out the background and the context for this ongoing debate over the Patriot Act, a debate that will not end with the reauthorization of the sixteen provisions that are now set to expire on March 10. And I would like to discuss my concerns about this reauthorization deal with some specificity.

Mr. President, because I was the only Senator to vote against the Patriot Act in 2001, I want to be very clear from the start. I am not opposed to reauthorization of the Patriot Act. I supported the bipartisan, compromise reauthorization bill that the Senate passed last July without a single Senator objecting. I believe that bill should become law. The Senate reauthorization bill is not a perfect bill, but it is a good bill. If that were the bill we had considered back in December or the bill we were considering today, I would speak in support of it. In fact, we could have completed the process of reauthorizing the Patriot Act months ago if the House had taken up the bill that the Senate approved without any objections.

I also want to respond to those who argue that people who are continuing to call for a better reauthorization package want to let the Patriot Act expire. That is nonsense. Not a single member of this body is calling for any provision of the Patriot Act to expire. There are any number of ways that we can reauthorize the Act while amending its most problematic provisions and I am not prepared to support reauthorization without adequate reforms.

Let me also be clear about how this process fell apart at the end of last year and how we ended up having to extend the Patriot Act temporarily past the end of 2005. In December this body, in one of its prouder moments in recent years, refused to let through a badly flawed conference report. A bipartisan group of Senators stood together and demanded further changes. We made very clear what we were asking for. We laid out five issues that needed to be addressed to get our support. Let me read some excerpts from a letter that we sent explaining our concerns:

The draft conference report would allow the government to obtain sensitive personal information on a mere showing of relevance. This would allow government fishing expeditions. As business groups like the U.S. Chamber of Commerce have argued, the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.

The draft conference report does not permit the recipient of a Section 215 order to challenge its automatic, permanent gag order. Courts have held that similar restrictions violate the First Amendment. The recipient of a Section 215 order is entitled to meaningful judicial review of the gag order.

The draft conference report does not provide meaningful judicial review of an NSL’s gag order. It requires the court to accept as conclusive the government’s assertion that a gag order should not be lifted, unless the court determines the government is acting in bad faith. The recipients of NSLs are entitled to meaningful judicial review of a gag order.

The draft conference report does not sunset the NSL authority. In light of recent revelations about possible abuses of NSLs, the NSL provision should sunset in no more than four years so that Congress will have an opportunity to review the use of this power.

The draft conference report requires the government to notify the target of a “sneak and peek” search no earlier than 30 days after the search, rather than within seven days, as the Senate bill provides and as pre-Patriot Act judicial decisions required. The conference report should include a presumption that notice will be provided within a significantly shorter period in order to better protect Fourth Amendment rights. The availability of additional 90-day extensions means that a shorter initial time frame should not be a hardship on the government.

That is from a letter that we sent late last year. Now, you might ask, in this newly announced deal on the Patriot Act, have any of these five problems been solved?

The answer is “No.” Not a single one. Only one of these issues has been even partially addressed by this deal. The White House applied immense pressure and pulled out its usual scare tactics, and succeeded in convincing people to accept a deal that makes only a tiny substantive improvement to the bill that was rejected in December. This is simply not acceptable.

I want to explain in detail my biggest concerns with the conference report, as modified by S. 2271, the legislation that the majority leader is seeking to take up. But first I want to clear up one frequent misconception. I have never advocated repeal of any portion of the Patriot Act. In fact, as I have said repeatedly over the past four years, I supported most of that bill. There are many good provisions in that bill. As my colleagues know, the Patriot Act did a lot more than expand our surveillance laws. Among other things, it set up a national network to prevent and detect electronic crimes, like the sabotage of the nation's financial sector; it established a counterterrorism fund to help Justice Department offices disabled in terrorist attacks keep operating; and it changed the money laundering laws to make them more useful in disrupting the financing of terrorist organizations. One section even condemned discrimination against Arab and Muslim Americans.

Even some of the Act’s surveillance sections were reasonable. One provision authorized the FBI to expedite the hiring of translators. Another added terrorism and computer crimes to the list of crimes for which criminal wiretap orders could be sought. And some provisions helped to bring down what has been termed “the wall” that had built up between intelligence and law enforcement agencies.

Whenever we start debating the Patriot Act, we hear a lot of people saying that we must reauthorize the Patriot Act in order to ensure that the wall does not go back up. So let me make this clear. I supported the information sharing provisions of the Patriot Act. One of the key lessons we learned in the wake of September 11 was that our intelligence and law enforcement agencies were not sharing information with each other, even where the statutes permitted it.

Unfortunately, the wall was not so much a legal problem as it was a problem of culture. The report of the 9/11 Commission made that clear. And I’m sorry to report that we have not made as much progress as we should have in bringing down those very significant cultural barriers to information sharing among our agencies. The 9/11 Commission report card that was issued toward the end of last year gave the government a “D” for information sharing because our agencies’ cultures have not changed enough. As the statement issued by Chairman Kean and Vice Chairman Hamilton explained, “You can change the law, you can change the technology, but you still need to change the culture. You still need to motivate institutions and individuals to share information.” And so far, our government has not met this challenge.

Talking about the importance of information sharing, as Administration officials and other supporters of the conference report have done repeatedly, is part of a pattern that started several years ago. Rather than engage in a true debate on the controversial parts of the Patriot Act, as some in this body have done – to their credit – during this reauthorization process, many proponents of the Patriot Act just point to non-controversial provisions of the Patriot Act and talk about how important they are. They say this bill must be passed because it reauthorizes those non-controversial provisions. That does not advance the debate, it just muddies the waters. We don’t have to accept bad provisions to make sure the good provisions become law.

Mr. President, today I do want to advance the debate. I want to spend some time explaining my specific concerns with the conference report and the deal that was struck to make a few minor changes to it. It is very unfortunate that the whole Congress could not come together as the Senate did around the Senate’s bipartisan, compromise reauthorization bill. Back in July, the Senate Judiciary Committee voted unanimously in favor of a reauthorization bill that made meaningful changes to the most controversial provisions of the Patriot Act to protect the rights and freedoms of innocent Americans. Shortly thereafter, that bill passed the full Senate by unanimous consent.

It was not easy for me to support that Senate bill, which fell short of the improvements contained in the bipartisan SAFE Act. But at the end of the day, the Senate bill contained meaningful changes to some of the most problematic provisions of the Patriot Act – provisions that I have been trying to fix since October 2001 – and I decided to support it. I made it very clear at the time, however, that I viewed that bill as the end point of negotiations, not the beginning. In fact, I specifically warned my colleagues “that the conference process must not be allowed to dilute the safeguards in this bill.” Mr. President, I meant it, but it appears that people either weren’t listening or weren’t taking me seriously. This conference report as slightly modified by this deal, unfortunately, does not contain many important reforms to the Patriot Act that we passed here in the Senate. So I cannot support it. And I will fight it.

I want to remind my colleagues of the serious problems with the Patriot Act that we have been discussing for several years. Let me start with Section 215, the so-called “library” provision, which has received so much public attention. I remember when the former Attorney General of the United States called the librarians who were expressing disagreement with this provision “hysterical.” What a revelation it was when the Chairman of the Judiciary Committee, the Senator from Pennsylvania, opened his questioning of the current Attorney General during his confirmation hearing by expressing concern about this provision of the Patriot Act. He got the Attorney General to concede that yes, in fact, this provision probably went a bit too far and could be improved and clarified. That was an extraordinary moment.

It was a moment that was very slow in coming, and long overdue. And I give credit to the Senator from Pennsylvania because it allowed us to start having a real debate on the Patriot Act. But credit also has to go to the American people who stood up, despite the dismissive and derisive comments of government officials, and said with loud voices – the Patriot Act needs to be changed.

These voices came from the left and the right, from big cities and small towns all across the country. So far, more than 400 state and local government bodies have passed resolutions calling for revisions to the Patriot Act. I plan to read some of those resolutions on the floor during this debate. There are a lot of them. And nearly every one mentions Section 215. Section 215 is at the center of this debate over the Patriot Act. It is also one of the provisions that I tried unsuccessfully to amend here on this floor in October 2001. So it makes sense to start my discussion of the specific problems I have with the conference report with the infamous “library” provision.

Section 215 of the Patriot Act allows the government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including not just library records, but also medical records and various other types of business records. The Patriot Act allowed the government to obtain these records as long as they were “sought for” a terrorism investigation. That’s a very low standard. It didn’t require that the records concern someone who was suspected of being a terrorist or spy, or even suspected of being connected to a terrorist or spy. It didn’t require any demonstration of how the records would be useful in the investigation. Under Section 215, if the government simply said it wanted records for a terrorism investigation the secret FISA court was required to issue the order -- period. To make matters worse, recipients of these orders are also subject to an automatic gag order. They cannot tell anyone that they have been asked for records.

Now some in the Administration, and even in this body, took the position that people shouldn’t be able to criticize these provisions until they could come up with a specific example of “abuse.” The Attorney General has repeatedly made that same argument, and he did so again in December in an op-ed in the Washington Post when he dismissed concerns about the Patriot Act by saying that “[t]here have been no verified civil liberties abuses in th