Statement Of Senator Patrick Leahy,
Ranking Member, Committee On The Judiciary
Meeting Of Conferees On H.R.3199,
The USA PATRIOT Improvement And Reauthorization Act Of 2005
November 10, 2005

I am pleased that the House has now has appointed conferees and that we are meeting today.  Both houses of Congress passed versions of a PATRIOT Act reauthorization bill in late July, and the Senate immediately appointed conferees.  We have lost several months that could have been used in seeking common ground on the two versions of the bill.  That process at last has begun, and we need to make prudent use of the limited time remaining in this legislative session and before the expiration of several important national security authorizations.  I commend Chairman Specter and Chairman Sensenbrenner for their efforts to do that.

The PATRIOT Act has always had an image problem, in part because it was negotiated quickly and largely outside of public view.  This may have been necessary in the fall of 2001, following the 9/11 attacks and the anthrax letters that shut down much of the Capitol complex.  But there is no reason for lawmakers to act hastily or behind closed doors now, and no one should accept it.

In this bill, Congress once again tries to strike the right balance between the security and the liberty that are the birthright of every American.  The public deserves and expects that we will diligently do our part in helping to achieve that balance in this bill.

I negotiated many of the provisions of the PATRIOT Act and am gratified to have been able to add several checks and balances that were not contained in the initial proposal.  But as I said at the time, this was not the final bill that I, or any of the sponsors, would have written if compromise had been unnecessary. 

In the final negotiating session, former House Majority Leader Dick Armey and I insisted that we add “sunset” provisions for certain domestic surveillance powers that have some of the greatest potential to undermine the civil liberties of the American people.  Chairman Sensenbrenner and others in the House had strongly supported sunsets in an earlier version of the House’s bill.  We succeeded in that effort, and the sunsets prompted a constructive national dialogue about the proper limits of governmental power.  They also explain why we were finally able to pry some information on the use of surveillance tools out of the Department of Justice, after many years of stonewalling.

Legitimate concerns and questions have been raised about various powers granted by the PATRIOT Act -- not so much for how they have been used, but for how they could be used, and for the cloak of the secrecy under which they operate.  I worked with Chairman Specter for months to address these issues in legislation that became the basis for the Senate version of the bill.

I commend Chairman Specter for his leadership in this reauthorization process, and I appreciate the dedication of Chairman Sensenbrenner to the task of completing this work. 

The Senate bill reauthorizes the expiring PATRIOT Act authorities, while modestly improving protections for civil liberties and privacy.  It is a bill with broad appeal; it passed the Committee by a vote of 18-0 and the full Senate by unanimous consent.   It is a clean bill, limited to the four corners of the PATRIOT Act; it does not include controversial extraneous provisions.

The bill as passed by the House was loaded with “extras,” which were tacked on to the bill as floor amendments with little or no debate.  While some are non-controversial, some raise substantial concerns.  For example, the House bill would allow Federal prosecutors a “do-over” whenever they fail to persuade a jury to impose a death sentence.  This proposal demands careful constitutional and practical review and serious debate, and it has had neither.  The House bill would strike the original PATRIOT Act formula for homeland security funding.  That formula has worked well, despite Administration efforts to pit large states against small ones, and it should be preserved.  

I was encouraged to see the House yesterday adopt a motion to instruct the House conferees to agree to the sunsets contained in the Senate bill.  In my view, there also are additional sections that ought to contain sunset provisions.  The sunshine provisions that I worked to include in the Senate bill would also promote accountability and better oversight of the use of the PATRIOT Act.

Instead of force-feeding the extras added to the bill in the House, we should devote our energies to fixing a critical area where both bills fall far short of acceptable.  They fail to provide sufficient checks and guidelines on the use of National Security Letters.  NSLs are, in effect, a form of administrative subpoena.  They do not require approval by a court, grand jury, or prosecutor.  They are issued in secret, with recipients silenced, under penalty of law. 

When we expanded the FBI’s secret powers in the PATRIOT Act, we believed that rigorous oversight and existing checks-and-balances would temper egregious use.  But the rug was promptly pulled from under that kind of accountability, with resistance to oversight rising to an all-time high and with the unprecedented decision of Attorney General Ashcroft to strip the Justice Department guidelines of counter-balancing protections.  Never before had these guidelines been adjusted without Congressional involvement.

Two years ago, when Congress again expanded the NSL authority, I raised concerns about what the FBI was doing with the information about Americans that it obtained through NSLs.  I noted that, with no real limits imposed by Congress, the FBI could store this information electronically and use it for large-scale data-mining operations.  As we now know, this is exactly what is being done with this sensitive data about the American people. 

The Department’s self-provided loopholes have allowed the FBI to consolidate sensitive personal information in databases, seemingly in perpetuity, with no clear protections for managing how that information is used and by whom, or for purging data on innocent Americans.  We now also know that not only the Justice Department but the Defense Department also is outsourcing data collection about American citizens, contracting with private data brokers, and this is happening outside the laws, restrictions and privacy limits that would apply to the Pentagon itself.

Security and liberty are always in tension in our free society, and especially so in the wake of the attacks of 9/11.  The American people of today, and the American people of tomorrow – our children and grandchildren -- depend on their elected representatives to strike the right balance.  Preventing the needless erosion of liberty and privacy requires constant vigilance and vision from those who the people have entrusted with writing the laws.  We have been fully warned of these risks, and we will have failed in our legislative duties if we do not correct these deficiencies.  We should not finalize the conference report on the PATRIOT Act without fully addressing the privacy and civil liberties concerns posed by National Security Letters.

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