May 26, 2011

ON REAUTHORIZATION OF PATRIOT ACT

Mr. President, I rise to explain why I voted against the motion to invoke cloture on S. 990, the legislative vehicle for S. 1038, the reauthorization of the USA PATRIOT ACT.  I opposed cloture because I believe the Senate has an obligation to consider substantive amendments to improve the Patriot Act.

We are all aware that at the end of this week three provisions of the Patriot Act will expire.  The three provisions are business records, roving wiretaps, and “lone wolf” terrorists.

I understand there is a delicate balance we must strike here between preventing and disrupting future terrorist attacks in the United States and protecting our cherished constitutional rights and civil liberties.  We must make sure that our law enforcement and intelligence professionals have the tools they need at their disposal to stop future terrorist attacks.  At the same time, we must insure that our government uses our scarce resources wisely, and that it safeguards the very rights and liberties that are guaranteed by our Constitution to all Americans.

        The current legislation before the Senate simply extends the existing PATRIOT Act authorities for four more years, until 2015, without any changes to the authorities given to the government or oversight of their use by Congress and the courts. 

        I think we can improve this legislation, Mr. President, as Congress seeks to strike the proper balance that I have mentioned.  I have studied this issue closely as the former Chairman of the Terrorism and Homeland Security Subcommittee of the Senate Judiciary Committee.  The Judiciary Committee has held numerous hearings on the implementation of the new Patriot Act authorities.  We have received testimony from government witnesses, including the Inspector General of the Justice Department, on the improper use of some of the Patriot Act authorities, and recommendations to improve the Patriot Act.

        Congress put these sunsets into this law for a reason.  I have supported these sunsets for the Patriot Act and the FISA Amendments Act.  A sunset means that a law will not just continue on autopilot without any changes.  Congress uses sunsets when giving extraordinary authorities to the executive branch so that we have a check and balance on the use of this power by the government.  The separation of powers also gives the courts a large role in reviewing and approving certain government investigatory and surveillance activity under the Patriot Act.

        A sunset means that the executive branch has to come back to Congress and ask for an extension of authority.  Congress then has a responsibility to look at how the law has been carried out, and make any needed improvements in the law, before again extending the authorities in the law.

        Without any action by Congress, a sunset leads to the expiration of the law in question, as the authorities in the law will lapse.  As a result, when sunsets are involved I have found the executive branch is more forthcoming with Congress in terms of sharing information and providing classified briefings to Congress on how they use the authorities in question.

        That is why, Mr. President, I voted to oppose cloture.  The Senate should have the ability to consider substantive amendments to the Patriot Act, and not simply extend the authorities as is, with no changes, for another four years.

        And the Senate already has a package of reforms ready for consideration, after careful deliberation in committee.  Earlier this week, I was pleased to co-sponsor an amendment offered by the distinguished Chairman of the Judiciary Committee, the Senator from Vermont, Mr. Leahy.  In the 111th Congress, I was also pleased to co-sponsor similar legislation offered by Chairman Leahy.  The Senate Judiciary Committee favorably reported this legislation to the full Senate in March 2011, as S. 193, the USA PATRIOT Act Sunset Extension Act of 2011.

        Broadly speaking, the Leahy amendment would increase judicial and congressional review of surveillance authorities that sweep in U.S. citizens, and would expand oversight and public reporting to ensure that Americans can monitor the use of these authorities.

        The Leahy amendment requires the government to meet a higher burden of proof when seeking business records from Americans, under the so-called Section 215 orders.  The amendment would require the government to show that the documents sought are relevant to an authorized investigation and are linked to a foreign group or foreign power.  Current law merely requires the government to show the records are relevant to an authorized investigation.  Under the amendment, the government must meet an even higher burden of proof to obtain bookseller or library records.

        The Leahy amendment also makes it easier for Americans to challenge the government when business records are sought.  The amendment strikes the one-year waiting period before a recipient can challenge a nondisclosure order for Section 215 orders, and also strikes the conclusive presumption in favor of the government on nondisclosure of such an order.

        For the first time, this Leahy amendment would also write into law a sunset provision and greater oversight of the use of National Security Letters (NSLs) by the government.  This would therefore add a fourth sunset to the Patriot Act.  This provision would shift the burden to the government to seek a court order for an NSL non-disclosure order, and allows the recipient of such an order to challenge it at any time.

        Under the Leahy amendment, Congress will require a new series of audits to ensure protection of privacy and vigorous oversight of the new authorities given to the government. The Justice Department Inspector General would conduct audits of the use of three surveillance tools: orders for tangible things; pen registers and trap and trace devices; and NSLs.  The scope of such audits includes a comprehensive analysis of the effectiveness and use of the investigative authorities provided to the Government, including any improper or illegal use of such authorities.

        Finally, the Leahy amendment requires enhanced court review and oversight of minimization procedures, which are designed to protect the privacy of innocent and law-abiding Americans.  The amendment requires increased public reporting on the use of NSL’s and FISA authorities by the Government, including an annual unclassified report on how FISA authorities are used and their impact on the privacy of United States persons.

 

        Mr. President, we now approach the tenth anniversary of the 9/11 terrorist attacks on this nation.  The United States recently conducted a military and intelligence operation which led to the killing of the Al Qaeda mastermind of the attacks, Osama bin Laden.  America still faces threats to its security every day, and I thank our brave men and women in the United States military and our intelligence community for working tirelessly to keep America safe.

        In my view, the Leahy amendment strikes the proper balance of giving our law enforcement and intelligence professionals the tools they need to prevent and disrupt future terrorist attacks, while simultaneously protecting our civil liberties.  The amendment includes important new protection for law-abiding Americans, and requires more vigorous oversight by Congress and the courts as the Government uses these new powers.

        Although I hope that the Leahy amendment will still be made in order, it is important that we do not allow the Patriot Act authorities to expire.  It is important for our law enforcement and intelligence agencies to have these tools at their disposal as they seek to prevent and disrupt future terrorist attacks in the United States.