Statement Of Senator Patrick Leahy
On The Introduction Of The Leahy-Craig-Sununu-Durbin-Reid
Patriot Oversight Restoration Act Of 2003
October 1, 2003

Today I am introducing with Senators Craig, Sununu, Durbin, and Reid my distinguished colleagues from Idaho, New Hampshire, Illinois, and Nevada the “Patriot Oversight Restoration Act of 2003,” a short bill whose singular but important purpose is to provide Congress the opportunity to take a hard look at the USA PATRIOT Act, which we passed in the anxious weeks following the devastating attacks of September 11, 2001.   This bipartisan bill is moderate in scope – it would simply expand the sunset provision already enacted in the PATRIOT Act, to cover a number of additional provisions.  The ensuing debate, however, should be considerable.  My hope is that, before the sunset expires in December 2005, Congress will methodically revisit PATRIOT, with an eye toward achieving a suitable balance between the need to address the threat of terrorism and the need to protect our constitutional freedoms – and with the lessons of the past few years to guide us.

We recently marked the second anniversary of the September 11 attacks.  As we reflect on that terrible day, and honor those who were lost, I strongly believe we should take stock of where we stand in our fight against terrorism.  In the aftermath of the attacks, Congress and the Administration did forge a constructive partnership to write the USA PATRIOT Act, which was meant to help our law enforcement and intelligence communities prevent future attacks from occurring.  The PATRIOT Act represented our best efforts, under difficult circumstances, to balance the rights and liberties of the American people with the very urgent need to confront a threat to our Nation.

Even in balancing this tension, we granted the Executive Branch an unprecedented, vast new array of powers.  We did so because we believed the Administration’s claim that it needed these powers to protect us, and because we trusted the Administration’s promise that it would use these powers appropriately.  I noted at the time that PATRIOT was not the bill that I, or any of the sponsors, would have written if compromise were unnecessary.  But I believed in the bill’s purpose, and I gave it my vote and support.  I worked hard to add checks and balances to many of its provisions, and did so. 

Unfortunately, like many Members who supported the Act -- and like many Americans nationwide -- I have come to feel disappointed.  Since we passed the PATRIOT Act in October 2001, it has grown increasingly apparent that the trust and cooperation Congress provided to the Executive Branch has proved to be a one-way street.  In the quarter-century that I have served in the Senate, no Administration has been more secretive, more resistant to congressional oversight, and more disposed to acting unilaterally, without the approval of the American people or their democratically elected representatives.  Despite the Administration’s unprecedented public relations campaign to promote the PATRIOT Act -- including a 16-state, 18-city tour by the Attorney General himself -- the Administration has yet to show that it is using its PATRIOT powers wisely.  Instead, it has been secretly drafting a sequel to PATRIOT that would grant it even more far-reaching powers.

I would never oppose an open discussion of any legislative tool that would help in the fight against terrorism.  But for such a debate to be fruitful, we need to know more about the tools that are already available, including those created by the PATRIOT Act.  Which are working, and how well?  Which are not working, and why?  Which, if any, struck the wrong balance, threatening the civil liberties of our citizens while doing little or nothing to keep our Nation secure?

Immediately after the PATRIOT Act passed, the Administration draped a cloak of secrecy around its use.  When lawmakers and citizens have attempted to start a dialogue on PATRIOT-related issues, the response has been to ignore, insult or derisively dismiss them. 

Attorney General Ashcroft has repeatedly declined to appear before the Judiciary Committee to answer questions, and his Department is painfully slow to respond to written requests for information.  To quote my friend Senator Grassley, “getting information from the Justice Department under Ashcroft is like pulling teeth.”  By ignoring oversight requests until answers are moot or outdated, and responding in only vague and conclusory fashion, if at all, the Justice Department frustrates our constitutional system of checks and balances, and sows the sort of public distrust that now accompanies the PATRIOT Act.

Just recently, in July, the Department dumped on Committee Members literally hundreds of pages of answers to questions that had been submitted to Attorney General Ashcroft and other senior Department officials following their testimony before the Committee more than a year earlier.  To give just one example of what a travesty it is when oversight questions remain unanswered for a year or more, the Department’s responses dated July 17, 2003, devoted fully 15 pages to answering questions about Operation TIPS – an ill-conceived program that Congress had already terminated more than 8 months earlier. 

Is the Department incapable of responding to congressional inquiries in a timely fashion?  Is it deliberately stonewalling?  Or does it simply believe that oversight is a game that it need not play?

Even more troubling, high-level Administration officials have rashly suggested that anyone who dares to voice their concerns as unpatriotic, anti-American and pro-terrorist.  In one of his rare appearances before the Senate Judiciary Committee, Attorney General Ashcroft charged that “fear mongers” – those who were raising concern about the loss of civil liberties -- were only aiding the terrorists.  More recently, a Justice Department official dismissed the many local government resolutions condemning the PATRIOT Act by saying “half are either in cities in Vermont, very small population, or in college towns in California.  It’s in a lot of the usual enclaves where you might see nuclear free zones, or they probably passed resolutions against the war in Iraq.”

It is unfortunate that the Justice Department felt it appropriate to ridicule these grass-roots efforts to participate in an important national dialogue.  The opportunity to engage in public discourse is one of the hallmark benefits of being an American, and I am proud that Vermont towns are among those dedicated to thinking about and acting on these important issues.  But more importantly, the concerns expressed in my home State are being echoed by Americans nationwide.  To date, anti-PATRIOT resolutions have been passed by 178 communities in 32 States including Idaho, New Hampshire, and Illinois.  These communities represent millions upon millions of Americans, not just a few free-spirited Vermonters, as the Justice Department has insinuated.

Concerns about the Administration’s anti-terror tactics are also shared by Members on both sides of aisle, many of whom supported the PATRIOT Act as well as the war in Iraq, but who now know that the Administration has been less than forthright about what it has been doing in the name of the American people.  In July, the House voted to nullify section 213 of the PATRIOT Act, which allows law enforcement to ask a court to delay notice of a search warrant where it could have certain adverse results.  And several bills have been introduced in both Houses to roll back another PATRIOT Act provision, section 215, which gives federal agents new power to obtain records from libraries and bookstores.   Remarkably, in response, the Justice Department then declassified information summarily reflecting that it has never used the Section 215 powers – despite expressing urgent “need” during pre-PATRIOT Act debate.   And almost simultaneous to this announcement, the President urged support for an alternative record gathering power when Section 215 is still on the books.  One has to question the inconsistencies in these two positions and whether Congress should blindly confer data gathering powers on an Administration that does not provide a hint of factual support for such requests.  There is overall a growing sense in the nation that Congress moved too fast in enacting the PATRIOT Act, and that the Justice Department moved too slowly in explaining its use of this sweeping legislation.

When we passed the PATRIOT Act in October 2001, I noted that Congress needed to exercise careful oversight of how the Justice Department, the FBI and other Executive Branch agencies used the newly expanded powers that the Act provided.  The need for oversight and accountability is the reason that former House Majority Leader Dick Armey and I insisted on a sunset provision for several key provisions in PATRIOT – provisions that blurred the lines between criminal investigation and intelligence gathering.  We succeeded, but only in part; several PATRIOT provisions that should have been subject to the sunset – including a few that were sunset or even cut in the version of the bill reported by the House Judiciary Committee – were omitted from the sunset.  As enacted, the sunset applies only to certain enhanced surveillance authorities in title II of the Act. 

The PATRIOT Oversight Restoration Act would extend PATRIOT’s sunset provision to other enhanced surveillance provisions in title II of the Act.  These include subsections (a) and (c) of section 203, which authorize the disclosure of grand jury information to foreign enforcement, intelligence and immigration officials; sections 210 and 211, which broaden the types of information that law enforcement may obtain, upon request, from electronic communication service providers and cable service operators; section 213, which authorizes so-called “sneak and peak” (delayed notification) search warrants; sections 216 and 222, which significantly expand when, where, and how law enforcement can obtain a pen register or trap and trace order; and section 219, which authorizes judges to sign search warrants for properties located outside their districts.

In addition to these title II provisions, the PATRIOT Oversight Restoration Act would also extend the sunset to a handful of provisions in titles IV, V, VIII and X of the PATRIOT Act.  These provisions include sections 411 and 1006, which expand the government’s authority to declare certain persons inadmissible to the United States; section 412, which grants the Attorney General authority to “certify” that an alien is engaged in activity that endangers the national security, and to take such an alien into custody; section 505, which gives law enforcement greater authority to access telephone, bank, and credit records through the issuance of so-called “National Security Letters,” even if no criminal investigation is pending and without court review; sections 507 and 508, which remove certain privacy protections for educational records and surveys -- called “obstacles” to investigating terrorism in the PATRIOT Act; section 802, which defines “domestic terrorism” in a way that could be read to include political protesters engaged in civil disobedience; section 806, which uses the aforementioned definition of “domestic terrorism” to expand the government’s civil forfeiture authority; and section 1003, which references another section of PATRIOT that is already covered by the sunset.

With the PATRIOT Act, Congress provided government investigators with a virtual smorgasbord of new powers from which to choose.  Is the government gorging itself on the secretive powers allowed for “foreign intelligence” gathering, with their less onerous procedural requirements, rather than relying on bedrock criminal investigatory techniques that are subject to more rigorous review by the Federal courts?  Have we provided too many choices and too much power to a limited few?  These are questions that require answers before the more far-reaching provisions of PATRIOT are etched into stone.

The events of September 11, 2001, resound in our hearts and in our memories.  We owe it to the American people to be circumspect in the powers and authorities we grant, even in the name of national security.  Our country was attacked on September 11 because of the democratic principles that this country stands for and that we love.  It would be a cruel twist of irony to abandon those principles in the guise of a law named “PATRIOT” that might prove to be anything but a defender or protector of those cherished rights and freedoms.  

The PATRIOT Oversight Restoration Act offers a cautious and sensible solution to evolving fears about the PATRIOT Act.  It will allow Congress to re-examine some of the important legal issues that abruptly confronted us in the weeks following September 11, and to re-assess our efforts with the benefit of hindsight and the luxury of time.

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