Senator Russ Feingold
On the Patriot Act Deal (Cont'd)
Wed Feb 15, 2006 23:15


Senator Russ Feingold - Gonzeles
On the Patriot Act Deal (Cont'd)

Senator Russ Feingold - Gonzeles

Statement of U.S. Senator Russ Feingold
On the Patriot Act Deal

I also want to take a moment to address, again, an argument that has been made about the NSL provisions of the conference report. It has been argued that many of the complaints I have about the NSL provisions of the conference report apply equally to the NSL provisions of the Senate bill. And because I supported the Senate bill, by some convoluted theory my complaints are therefore invalid and I should support the conference report.

Mr. President, that just makes no sense. The NSL section of the Senate bill was one of the worst sections of the bill. I didn’t like it then, and I don’t like it now. But in the context of the larger package of reforms that were in the Senate bill, including the important changes to Section 215 that I talked about earlier and the new time limit on “sneak and peek” search warrants that I will talk about in a moment, I was able to accept that NSL section even though I would have preferred additional reforms.

Now, the argument has been made that after supporting a compromise package for its good parts, I am supposed to accept a conference report that has the bad parts of the package even though the good parts have been stripped out. That is just nonsense, and every member of this chamber who has ever agreed to a compromise – and I must assume that includes every single one of us – knows it.

The other point I want to emphasize here is that the Senate bill was passed before the Post reported about the use of NSLs and the difficulties that the gag rule poses for businesses that feel they are being unfairly burdened by them. At the very least, I would think that a sunset of the NSL authorities would be justified to ensure that Congress has the opportunity to take a close look at such a broad power. But the conferees and the White House refused to make that change. Nor would they budge at all on the absurdly difficult standard of review, the so-called conclusive presumption; in fact, the White House insisted on repeating it in the context of judicial review of Section 215 gag orders.

This points out a real problem I have with the White House deal. In our letter in December, my colleagues and I, Democratic and Republican, complained about the unfair standard for judicial review of the gag order in connection to NSLs. So how can the supporters of this deal argue that applying that same standard to challenges to the gag rule for Section 215 orders is an improvement? A standard that was unacceptable in December has somehow miraculously been transformed into a meaningful concession. That is just spin Mr. President. It doesn’t pass the laugh test.

I suspect, Mr. President, that the NSL power is something that the Administration is zealously guarding because it is one area where there is almost no judicial involvement or oversight. It is the last refuge for those who want virtually unlimited government power in intelligence investigations. And that is why the Congress should be very concerned, and very insistent on making the reasonable changes we have suggested.

Mr. President, I next want to address “sneak and peek” searches. This is another area where the conference report departs from the Senate’s compromise language, another area where the White House deal makes no changes whatsoever, and another reason that I must oppose the conference report.

When we debated the Patriot Act in December, the senior Senator from Pennsylvania made what seems on the surface to be an appealing argument. He said that the Senate bill requires notice of a sneak and peek search within 7 days of the search, and the House said 180 days. The conference compromised on 30 days. “That’s a good result,” he says. “They came down 150 days, we went up only 23. What’s wrong with that?”

Let me take a little time to put this issue in context and explain why this isn’t just a numbers game -- an important constitutional right is at stake.

One of the most fundamental protections in the Bill of Rights is the Fourth Amendment’s guarantee that all citizens have the right to “be secure in their persons, houses, papers, and effects” against “unreasonable searches and seizures.” The idea that the government cannot enter our homes improperly is a bedrock principle for Americans, and rightly so. The Fourth Amendment has a rich history and includes in its ambit some very important requirements for searches. One is the requirement that a search be conducted pursuant to a warrant. The Constitution specifically requires that a warrant for a search be issued only where there is probable cause and that the warrant specifically describe the place to be searched and the persons or things to be seized.

Why does the Constitution require that particular description? Well, for one thing, that description becomes a limit on what can be searched or what can be seized. If the magistrate approves a warrant to search someone’s home and the police show up at the person’s business, that search is not valid. If the warrant authorizes a search at a particular address, and the police take it next door, they have no right to enter that house. But of course, there is no opportunity to point out that the warrant is inadequate unless that warrant is handed to someone at the premises. If there is no one present to receive the warrant, and the search must be carried out immediately, most warrants require that they be left behind at the premises that were searched. Notice of the search is part of the standard Fourth Amendment protection. It’s what gives meaning, or maybe we should say “teeth,” to the Constitution’s requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized.

Over the years, the courts have had to deal with government claims that the circumstances of a particular investigation require a search without notifying the target prior to carrying out the search. In some cases, giving notice would compromise the success of the search by leading to the flight of the suspect or the destruction of evidence. The two leading cases on so-called surreptitious entry, or what have come to be known as “sneak and peek” searches, came to very similar conclusions. Notice of criminal search warrants could be delayed, but not omitted entirely. Both the Second Circuit in U.S. v. Villegas and the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant must provide that notice of the search will be given within seven days, unless extended by the court. Listen to what the Freitas court said about such searches:

We take this position because surreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment. The mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else. That passion, the true source of the Fourth Amendment, demands that surreptitious entries be closely circumscribed.

So when defenders of the Patriot Act say that sneak and peek searches were commonly approved by courts prior to the Patriot Act, they are partially correct. Some courts permitted secret searches in very limited circumstances, but they also recognized the need for prompt notice after the search unless a reason to continue to delay notice was demonstrated. And they specifically said that notice had to occur within seven days.

Section 213 of the Patriot Act didn’t get this part of the balance right. It allowed notice to be delayed for any reasonable length of time. Information provided by the Administration about the use of this provision indicates that delays of months at a time are now becoming commonplace. Those are hardly the kind of delays that the courts had been allowing prior to the Patriot Act.

The sneak and peek power in the Patriot Act caused concern right from the start. And not just because of the lack of a time-limited notice requirement. The Patriot Act also broadened the justifications that the government could give in order to obtain a sneak and peek warrant. It included what came to be known as the “catch-all” provision, which allows the government to avoid giving notice of a search if it would “seriously jeopardize an investigation.” Some think that that justification in some ways swallows the requirement of notice since most investigators would prefer not to give notice of a search and can easily argue that giving notice will hurt the investigation.

Critics of the sneak and peek provision worked to fix both of the problems when they introduced the SAFE Act. First, in that bill, we tightened the standard for justifying a sneak and peek search to a limited set of circumstances – when advance notice would endanger life or property, or result in flight from prosecution, the intimidation of witnesses, or the destruction of evidence. Second, we required notice within seven days, with an unlimited number of 21-day extensions if approved by the court.

The Senate bill was a compromise. It kept the catch-all provision as a justification for obtaining a sneak and peek warrant. Those of us who were concerned about that provision agreed to accept it in return for getting the seven-day notice requirement. And we accepted unlimited extensions of up to 90 days at a time. The key thing was prompt notice after the fact, or a court order that continuing to delay notice was justified.

So that’s the background to the numbers game that the Senator from Pennsylvania and other supporters of the conference report point to. They want credit for walking the House back from its outrageous position of 180 days, but they refuse to recognize that the sneak and peek provision still has the catch-all justification, and unlimited 90-day extensions.

And here is the crucial question that they refuse to answer. What possible rationale is there for not requiring the government to go back to a court within seven days and demonstrate a need for continued secrecy? Why insist that the government get thirty days free without getting an extension? Could it be that they think that the courts usually won’t agree that continued secrecy is needed after the search is conducted, so they won’t get the 90-day extension? If they have to go back to a court at some point, why not go back after seven days rather than 30? From the point of view of the government, I don’t see the big deal. But from the point of view of someone whose house has been secretly searched, there is a big difference between one week and a month.

Suppose, for example, that the government actually searched the wrong house – as I mentioned, that’s one of the reasons that notice is a Fourth Amendment requirement. The innocent owner of the place that had been searched might suspect that someone had broken in, might be living in fear that someone has a key or some other way to enter. Should we make that person wait a month to get an explanation rather than a week? Presumably, if the search revealed nothing, and especially if the government realized the mistake and does not intend to apply for an extension, it will be no hardship, other than embarrassment, for notice to be given within seven days.

So Mr. President, that is why I’m not persuaded by the numbers game. The Senate bill was already a compromise on this very controversial provision. And there is no good reason not to adopt the Senate’s provision. I have pointed this out repeatedly, and no one has ever come forward and explained why the government can’t come back to the court within seven days of executing the search. Instead, they let the House get away with a negotiating tactic – by starting with 180 days, they can argue that 30 days is a big concession. But it wasn’t.

Let me put it to you this way: If the House had passed a provision that allowed for notice to be delayed for 1,000 days, would anyone be boasting about a compromise that requires notice within 100 days, more than three months? Would that be a persuasive argument? I don’t think so. The House provision of 180 days was arguably worse than current law, which required notice “within a reasonable time,” because it creates a presumption that delaying notice for 180 days, six months, is reasonable. It was a bargaining ploy. The Senate version was what the courts had required prior to the Patriot Act. And it was itself a compromise because it leaves in place the catch-all provision for justifying the warrant in the first place. That is why I believe the conference report on the sneak and peek provision is inadequate and must be opposed. And the fact that this so-called deal with the White House does not address this issue is yet another reason why I see no reason why I, or anyone, should change their position on this.

Let me make one final point about sneak and peek warrants. Don’t be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It’s not. Section 213 is a criminal provision that applies in whatever kinds of criminal investigations the government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations. So why do I say that they aren’t needed in terrorism investigations? Because FISA also can apply to those investigations. And FISA search warrants are always executed in secret, and never require notice. If you really don’t want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that limiting the sneak and peek power as we have proposed will interfere with sensitive terrorism investigations is a red herring.

Mr. President, I have spoken at some length about the provisions of this conference report that trouble me, and the ways in which the deal struck with the White House does not address those problems with the conference report. But to be fair, I should mention one aspect of the conference report that was better than a draft that circulated prior to the final signing of that report. The conference report includes four-year sunsets on three of the most controversial provisions: roving wiretaps, the so-called “library” provision, and the “lone wolf” provision of the Foreign Intelligence Surveillance Act. Previously, the sunsets on these provisions were at seven years, and it is certainly an improvement to have reduced that number so that Congress can take another look at those provisions sooner.

I also want to acknowledge that the conference report creates new reporting requirements for some Patriot Act powers, including new reporting on roving wiretaps, Section 215, “sneak and peek” search warrants, and National Security Letters. There are also new requirements that the Inspector General of the Department of Justice conduct audits of the government’s use of National Security Letters and Section 215. In addition, the conference report includes some other useful oversight provisions relating to FISA. It requires that Congress be informed about the FISA Court’s rules and procedures and about the use of emergency authorities under FISA, and gives the Senate Judiciary Committee access to certain FISA reporting that currently only goes to the Intelligence Committee. I’m also glad to see that it requires the Department of Justice to report to us on its data mining activities.

But, Mr. President, adding sunsets and new reporting and oversight requirements only gets you so far. The conference report, as it would be modified by S. 2271, remains deeply flawed. I appreciate sunsets and reporting, and I know that the senior Senator from Pennsylvania worked hard to ensure they were included, but these improvements are not enough. Sunsetting bad law in another four years is not good enough. Simply requiring reporting on the government’s use of these overly expansive tools does not ensure that they won’t be abused. We must make substantive changes to the law, not just improve oversight. This is our chance, a


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