Statement Of Senator Patrick Leahy
Ranking Member, Committee On The Judiciary
PATRIOT Act Reauthorization
March 1, 2006

Mr. LEAHY.  Mr. President, the Senate will soon be voting to reauthorize the USA PATRIOT Act.  As one of the authors of the original 2001 bill, as someone who voted to reauthorize an improved version of the Act back in July 2005, and as an American concerned with our security, I am glad that we are making progress, but disappointed at the missed opportunity to get it right.  

I believe that the PATRIOT Act provides important and valuable tools for the protection of Americans from terrorism.  These matters should be governed by law and not by whim.  Legislative action should be the clear and unambiguous legal footing for Government powers.  I am glad that the sunsets that Congressman Armey and I insisted be included in the 2001 Act brought about reconsideration and some refinement of the powers authorized in that measure.  Now the challenge to Congress is to provide the effective oversight that will be needed in the days ahead and to ensure that there is effective court review of the actions that affect the rights of Americans.

Several specific provisions of this bill reflect substantial improvement over both the original PATRIOT Act and the reauthorization proposal initially produced by the House-Senate conference.  Most importantly, the bill contains several “sunshine” provisions that I proposed to facilitate oversight and ensure some measure of public accountability for how the Government uses its powers. 

For the first time ever, the Justice Department will be required to report publicly on its use of two secret surveillance tools that have come under fire from both civil libertarians and the business community:  the FISA business record authority and the so-called national security letters, or NSLs.  The Justice Department has been declassifying this information sporadically, when politically convenient; it could offer no plausible justification for keeping the information classified, especially when comparable data regarding more sensitive surveillance techniques such as wiretapping and physical searches is routinely disclosed.

Public reporting will help restore public confidence in our government’s use of its PATRIOT Act powers, but the sort of data that can be reported publicly falls short of what is needed to ensure that these powers are properly used.  I am, therefore, pleased that the conference accepted my proposal that these powers be subject to detailed, comprehensive, and unclassified audits by the Justice Department’s Office of the Inspector General.  Specifically, the OIG will audit the effectiveness and use, including any improper or illegal use, of the FISA business record and NSL authorities during the last several years.  In performing these audits, the OIG will examine the categories of records obtained, the importance of the information acquired, the manner in which the information is retained and disseminated, and whether the information is used for data mining purposes.  The NSL audit will be followed by a report on the feasibility of applying minimization procedures in the context of NSLs to ensure the protection of the constitutional rights of United States persons.

Yet another sunshine provision that I proposed, and the conference accepted, draws from a bill that I introduced in the last Congress with Senators Specter and Grassley.  This provision requires the FISA court to publish its procedures and share rules with the Congress in an unclassified report.  The conference also agreed to require annual reporting on the use of “sneak and peak” search warrants and FISA’s emergency surveillance authorities. 

Finally, the bill includes a scaled-back version of a data mining provision that was added by floor amendment in the House.  As contained in the current bill, the provision calls for a one-time report on pattern-based data mining by the Department of Justice.  Pattern-based data mining develops models based upon expected behavior or profile of criminal or terrorist activity and then mines databases of personal information seeking to identify such patterns.  This practice raises concerns over both profiling and individual privacy. 

In addition to sunshine provisions, I proposed that we retain the sunset mechanism that worked so well in the original PATRIOT Act.  Back in the fall of 2001, Republican House Majority Leader Dick Armey and I insisted on 4-year sunsets for certain PATRIOT Act powers with great potential to affect the civil liberties of Americans.  Those sunsets contributed to congressional oversight.  Without them I expect the Bush Administration would have stonewalled our requests for information and for review of the way they were implementing the statute.  The sunsets were the reason we have been going through a review and renewal process over the last few months.

During this process, I proposed and the Senate agreed to 4-year sunsets on three key provisions.  The House initially approved 10-year sunsets on two provisions.  With steadfastness and hard work on the part of Senate conferees we were able to achieve the 4-year sunsets that were in the Senate bill.  I commend, as well, Representative Conyers and the House for passing an instruction to the House conferees to abide by the 4-year sunsets.  Despite strong majority support in both bodies for 4-year sunsets and even after the House had voted to instruct its conferees, it took weeks to persuade Republican leaders in the House and the Bush Administration to accept this commonsense measure. 

These improvements were hard won.  The Bush Administration pursued its usual strategy of demanding sweeping executive powers and resisting checks and balances.  As usual, it was short on bipartisan dialogue and long on partisan rhetoric.  And as usual, the Republican majorities in the House and Senate did their utmost to follow the White House’s directives and prevent any breakout of bipartisanship.  But a ray of bipartisanship did break out, and the bill is the better for it.  The current bill contains 4-year sunsets, not 7 or 10-year sunsets.  The bill no longer contains a provision that would have made it a crime merely to disclose the receipt of a national security letter.  It no longer requires American citizens to tell the FBI before they exercise their right as Americans to seek the advice of counsel.  Chairman Specter and I worked together on these improvements and our efforts have produced a better bill for the protection of all Americans.  In this regard, I also compliment all of the Senate Democratic conferees whose efforts were extraordinary.  Whether they vote for or against the final product, Senators Rockefeller, Levin and Kennedy all deserve the thanks of the Senate and the American people for their hard work and steadfastness. 

Late changes were achieved by Republican Senators who had joined us in resisting the conference report in December.  It is regrettable that the Bush Administration would not engage all of us in a bipartisan conversation on ways in which to improve the bill.  The White House counsel only spoke to the Republican Senators.  In that setting, they negotiated to achieve what they view as improvements and what they could.  It is less than we would have liked. 

Among the last changes to the bill is one that I proposed and feel strongly about.  We clarify that libraries as they traditionally and currently function are not electronic services providers, and may not be served with an NSL for business records simply because they provide Internet access to their patrons.  Under this clarification, a library may be served with an NSL only if it functions as a true Internet Service Provider, as by providing services to persons located outside the premises of the library, but this is an unlikely scenario.  In most if not all cases, if the Government wants to review library records for foreign intelligence purposes, it will need a court order to do so.  The language I proposed to Senator Sununu in this regard was less ambiguous than that to which the Bush Administration would agree.  Still, my intent, Senator Sununu’s intent and the intent of Congress is this regard should be clear.  Senators Sununu and Craig were also able to improve upon earlier language to remove the requirement that Americans who consult with a lawyer about an NSL first report that contact to the Government. 

While there is much that is good in the bill, however, the bill still has serious flaws and troubling omissions.  I have spent several months working closely with Members from both parties in an attempt to improve these defects.  We have improved them to some extent, and I want specifically to thank Senators Sununu and Craig for their vital role in achieving the prohibition on the use of NSLs with libraries.  In my judgment, however, the bill still falls short in several critical regards.

Weaker Checks on Secret Orders for Business Records

I will start with the bill’s treatment of Section 215 of the PATRIOT Act, the business records provision that has been so important to the libraries.  Under Section 215, the Government can obtain a secret order that compels access to sensitive records of American citizens, and also imposes a permanent gag on the recipient.

Before passage of the PATRIOT Act, there were two significant limitations on the FBI’s power to seize business records.  First, it could be used only for a few discrete categories of travel records, such as records held by hotels, motels, vehicle rental facilities.  Second, the legal standard for obtaining the order was demanding.  The Government had to present specific and articulable facts giving reason to believe that the subject of the investigation was a foreign power or an agent of a foreign power. 

Passed in the weeks following 9/11, the PATRIOT Act did away with these limitations.  It both expanded what the FBI may obtain with a Section 215 order and it lowered the standard for obtaining it.  Under current law, the Government need only assert that something -- anything -- is sought for an authorized investigation to protect against terrorism or espionage, and the judge will order its production. What counts as an authorized investigation is within the discretion of the Executive branch.

The Senate, in the reauthorization bill that we passed last July, reestablished a significant check on this power.  Under the Senate bill, relevance to an authorized investigation is not enough; the Government must also show some connection between the records sought and a suspected terrorist or spy.  This is a fundamental protection that would not hamstring the Government, but would do much to prevent overreaching in Government surveillance.  I fought for it in the Senate.  Chairman Specter and every Republican Senator voted for it.  Unfortunately, it was stripped out in conference. 

The current bill is deficient with respect to Section 215 in two other respects.  First, the current bill allows the Government to use secret evidence to oppose a judicial challenge to a Section 215 order.  At the Government’s request, the court must review any Government submission in secret, regardless of whether it contains classified material.  This has the potential to turn an adversarial process into a kangaroo court and will, at a minimum, make it very difficult for the recipient of a Section 215 order to obtain meaningful judicial review that comports with due process. 

Second, unlike the Senate bill, the current bill does not permit the recipient of a Section 215 order to get meaningful judicial review of its automatic, permanent prohibition on disclosure.  Businesses that receive Section 215 orders cannot get review of its prohibition on disclosure if the Government asserts that disclosure “may” endanger national security or “may” interfere with diplomatic relations.  This is the type of provision to which I have never agreed in connection with NSLs or Section 215 orders.  The Bush Administration has used the last round of discussions with Republican Senators to make it worse in my view by forbidding any challenge for a year.  The Bush Administration has simply refused to listen to reason on this and insists on this thumb on the scale of justice.

Inadequate Safeguards For National Security Letters

The current bill also falls short on its treatment of national security letters.  These are, in effect, a form of secret administrative subpoena.  They are issued by FBI agents without the approval of a judge, grand jury, or prosecutor.  They allow the agents to obtain certain types of sensitive information about innocent Americans simply by certifying its relevance to a terrorism or espionage investigation.  Like Section 215 orders, NSLs come with a permanent gag.  The recipient of an NSL is prohibited from telling anyone that he has been served.

The bill does not allow 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.  This raises serious First Amendment and due process concerns.  Fixing this provision was one of my top priorities in the conference and during my subsequent discussions with Chairman Specter.  The Bush Administration’s refusal to agree to this change was a significant factor in my consistent opposition to the conference report in December.  Despite strong opposition to this provision from the right and the left, the Bush Administration refused to correct it.  They also refused, as an alternative, to sunset the NSL authority.  I sought remediation of this provision through discussions with Senators Specter and Sununu.  They were unable to achieve that result.  This creates, in my view, a sham judicial proceeding within the complete control of the Government that smacks too much of a police state.  It is wrong and needs to be fixed.

“Sneak and Peek” Searches

The bill’s treatment of the PATRIOT Act’s so-called “sneak and peek” provision is another area of concern.  Section 213 of the PATRIOT Act authorized the Government to carry out secret searches in ordinary criminal investigations.  Armed with a Section 213 search warrant, FBI agents may enter and search a home or office and not tell anyone about it until weeks or months later. 

It is interesting to recall that four years ago, the House Judiciary Committee took one look at the Bush Administration’s original proposal for sneak and peak authority and dropped it entirely from its version of the legislation.  As Chairman of the Senate Judiciary Committee, I was able to make some significant improvements in the Administration’s proposal, but problems remained.  In particular, Section 213 says that notice may only be delayed for “a reasonable period.” The Bush Administration has abused that flexible standard and used it to justify delays in notice of a year or more.  Pre-PATRIOT Act case law stated that the appropriate period of delay was no more than seven days.

The Senate voted to replace the “reasonable period” standard, which the Bush Administration has been abusing, with a basic 7-day rule, while permitting the Government to obtain additional 90-day extensions of the delay from the court.  The current bill sets a 30-day rule for the initial delay, more than three times what the Senate, and pre-PATRIOT Act courts, deemed appropriate.  The shorter period would better protect Fourth Amendment rights without in any way impeding legitimate government investigations.  The availability of additional 90-day extensions means that a shorter initial time frame should not be a hardship on the Government.  But our improvement has been rejected in favor of too much Government power.

Controversial Extras

The current bill is also loaded with extraneous provisions that have nothing to do with the expiring PATRIOT Act authorities, or even with terrorism.  I am particularly concerned that the bill modifies habeas corpus law, a highly controversial provision that is wholly improper to consider in this context.  The changes to habeas added here at the insistence of a small number of Republican conferees have nothing to do with terrorism or even more general tools of federal enforcement.  These changes were not included in the PATRIOT Act reauthorization bill of either the House or the Senate.  They were added late in the conference process, after all Democratic conferees were shut out.  They received no serious consideration by either body’s Judiciary Committee, and have been strongly opposed by the U.S. Judicial Conference and others.  And yet, these modifications could have very serious consequences – possibly unintended consequences – in habeas cases that are already pending in California and other States. 

Yet another extraneous provision of the bill will revive a small group of pending death penalty prosecutions for aircraft hijacking murders committed in the 1970s and ‘80s.  Specifically, it is designed to overrule the district court decision in United States v. Safarini, which struck the death penalty for a 1986 hijacking offense on the grounds that the Federal Death Penalty Procedures Act of 1994 could not be retroactively applied to a pre-1994 crime, absent clear congressional intent to do so.  To my knowledge, Congress has never enacted death penalty legislation intended to allow the execution of a tiny number of known offenders for crimes they are alleged to have committed from one to three decades previously.  Whether the Government can ultimately persuade the courts that this does not violate the letter of the Ex Post Facto and Bill of Attainder clauses of the Constitution, it certainly violates their spirit.  It is telling that the Department of Justice, in its testimony before the House Judiciary Committee, strongly recommended adding in a severability clause, in case this provision was ultimately held invalid by a court of law.  I share the Department’s skepticism regarding the constitutionality of this wrongheaded provision, and deeply regret its inclusion in the conference report.

Conclusion

From my point of view, this bill presents a complex mixture of valuable provisions and significant improvements on the one hand, but also serious flaws and missed opportunities on the other.  The final product would have been better had the Bush Administration not insisted on locking Democrats out of the negotiations.  They did that first in connection with the conference and again after the Senate would not proceed to pass the conference report last December.  I tried to have conversations with the White House to improve the bill, but my efforts were dismissed.  So long as the Bush Administration can get the votes it needs on the Republican side of the aisle, it sees no purpose in any bipartisan effort.

We are left with a dilemma.  The bill is in some ways an improvement on current law with better sunshine and reporting provisions.  But some key provisions remain significantly flawed.  A judgment on the package of both worthwhile and flawed provisions is a difficult one to make.  I suspect that I am not the only Member wrestling with that judgment.   I respect those who conclude that on balance, the bill’s virtues outweigh its vices.  But I believe we can and should do better. 

I will continue to work to improve the PATRIOT Act.  I will work to provide better oversight over the use of national security letters and to remove the un-American restraints on meaningful judicial review.   I will seek to monitor how sensitive personal information from medical files, gun stores and libraries are obtained and used.  Today, I will join Senators Specter, Sununu, Craig, and others in introducing a bill to improve the PATRIOT Act and reauthorization legislation in several important respects.  While we have made some progress, much is left to be done.

In 2001, I fought for time to provide some balance to Attorney General’s demands that the Bush Administration’s anti-terrorism bill be enacted in a week.  We worked hard for six weeks to make that bill better and were able to include the sunset provisions that contributed to reconsideration of several provisions over the last several months.  Last year I worked with Chairman Specter and all the Members of the Judiciary Committee and the Senate to pass a reauthorization bill in July.  As we proceeded in House-Senate conference on the measure, the Bush Administration and congressional Republicans locked Democratic conferees out of their deliberations and wrote the final bill.  That was wrong.  In December, working with a bipartisan group of Senators we were able to urge reconsideration of that final bill.  Senators Sununu and Craig were able to use that opportunity to make some improvements.  I commend them for what they were able to achieve and hope that my support for their efforts has been helpful.  I wish that along the way the Bush Administration had shown interest in working together to get to the best law we could for the American people. 

Karl Rove, Vice President Cheney and others in the Bush Administration have been explicit that they would rather play partisan politics with these important matters than legislate in a bipartisan way.  That is wrong.    

By contrast, immediately after 9/11, Senator Daschle, the Majority Leader in the Senate and I, as Chairman of the Senate Judiciary Committee, put aside any political considerations and labored as Americans, not Republicans or Democrats or politicians, to do all that we could in the best interests of the American people to bring us together and to authorize those actions needed to be taken.  For our efforts we were criticized by Vice President Cheney and Attorney General Ashcroft, who reneged on agreements that would have made the original PATRIOT Act a better law.  Senator Daschle and I were also the targets of letters laced with deadly anthrax that resulted in the death of innocent postal workers and the shutting down of several Senate buildings.  No arrests or convictions have ever resulted from those deadly attacks. 

Even after we worked so hard to pass the PATRIOT Act, the Bush Administration resumed its partisan attacks, not against al Qaeda but against patriotic Democrats like Max Cleland, as they continued each election cycle to use the terrorist attack that had occurred on their watch for their partisan political gain.  That was wrong.  They engaged in partisan attacks while Democrats gave them a pass for the worst attack on American soil that killed nearly 3,000 Americans.  This was a terrorist attack that Senator Specter has said could have been prevented had the Bush Administration properly understood and used its powers under the Foreign Intelligence Surveillance Act.  The 9/11 Commission documented how the Bush Administration dropped the ball by failing in so many ways to connect the dots.

I wish that they had taken the advice President Clinton and others in his administration and made terrorism their number one priority when they assumed power in January 2001.  We recently heard President Bush make his fifth State of the Union address, but in his inaugural address and his State of the Union speech in early 2001 he did not mention terrorism, except in connection with Star Wars, his missile defense shield proposal that was the initial focus of the Bush Administration.  His first Attorney General cut the budget for counterterrorism just before 9/11.

In September and October 2001, Democrats joined together as Americans, Congress adopted the Authorization for the Use of Military Force to authorize sending our armed forces into Afghanistan to get those responsible for the 9/11 attacks, and we worked night and day to pass the USA PATRIOT Act. 

Now we see the Bush Administration seeking to twist the Authorization for the Use of Military Force into a justification for its secret, illegal wiretapping of Americans’ emails and telephone calls.  We see the Bush Administration claiming that it need not fulfill its constitutional responsibility to faithfully execute the laws and that it can pick and choose among the laws it chooses to recognize. And we see a Bush Administration that continues to attack anyone that gets in their way and insists on the rule of law. 

Confronted with the Bush Administration’s claims of unchecked power, I do not believe that the restraints we have been able to include in this reauthorization of the PATRIOT Act are sufficient.  I will continue to work to provide the tools that we need to protect the American people.  I trust that Vermonters will understand that while I have repeatedly voted to extend and reauthorize the PATRIOT Act, this measure falls short of what they deserve.  I cannot support it in its current form.  I will continue to work to provide the oversight and checks needed on the uses of Government power and seek to improve the reauthorization of the PATRIOT Act that will be adopted by the Senate today. 

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