Saturday, December 17, 2005

Remarks on Ending Debate on Reauthorization of the USA Patriot Act

Published on Friday, December 16, 2005 by
by US Sen. Russ Feingold

Senate Floor Statement, December 16, 2005

Mr. President, on Wednesday evening, I laid out in detail my concerns about the Patriot Act reauthorization bill that we are now considering on the floor. In its current form, I cannot support the conference report, and I cannot consent to limit debate on it. The leaders of this Congress need to figure out a way to change this report to address the important civil liberties issues that I and other Senators from both sides of the aisle have discussed over the past three days.

This morning we saw an astounding story in the New York Times. Since 2002, the government has been reportedly wiretapping the international phone and email conversations of hundreds, even thousands of people inside the Untied States, without wiretap orders. You want to talk about abuses? I can’t imagine a more shocking example of an abuse of power, to eavesdrop on American citizens without first getting a court order based on some evidence that they are possibly criminals, terrorists or spies. Mr. President, it is truly astonishing to read that this Administration would go this far beyond the bounds of the statutes and the Constitution. We as an institution have the duty, the obligation, to get to the bottom of this.

I hope that this morning’s revelation drives home to people that this body must be absolutely vigilant in our oversight of government power. And I don’t want to hear again from the Attorney General or anyone on this floor that this government has shown it can be trusted to use the power we give it with restraint and care. This shocking revelation ought to send a chill down the spine of every Senator and every American.

With that in mind, let me review my main concerns about this conference report.

First, section 215. Remember, this is the section where Attorney General Ashcroft once said that librarians concerned about the privacy rights of their patrons were “hysterical.” But then the current Attorney General conceded at his nomination hearing in the Senate Judiciary that some changes would be justified. Unfortunately, the Administration was not willing to make real changes to the provision to protect the rights and freedoms of innocent Americans.

The other night, I described in detail the evolution of this provision through the legislative process. The bottom line is this – the Senate bill had a three prong test requiring some connection between the records sought and a person suspected of being a terrorist or spy. The conference report abandoned that connection and instead relies on a standard of relevance to an intelligence investigation. That is pretty much an “anything goes” standard that fails to protect the records of law-abiding Americans. There is no requirement in this conference report that will prevent government fishing expeditions. Read the provision and it is as plain as day. The three prong test has been turned into three examples of relevance. They are not protections at all against government overreaching.

The provisions of the bill relating to National Security Letters are also seriously deficient. There is no requirement that the records sought under that authority, which doesn’t involve a court at all, have some connection to a suspected terrorist or spy. The judicial review that the conference report allows after the fact, of the NSL itself and the mandatory gag order, is a mirage. After what the Times reported this morning, no one in this body should be comfortable with the government having this kind of unreviewable power.

Finally, there is the issue of so-called sneak and peek searches, when the government secretly enters and searches someone’s home. The question here is when the government has to notify someone that a search has taken place. The Senate bill allowed seven days for the government to get back to the court and justify continued delay in providing notice of a sneak and peek search. The conference report, unfortunately, permits 30-day delays. Some have argued that the difference between a week and a month is not that big a deal. It is a big deal, Mr. President. We are talking about an important constitutional right, the Fourth Amendment protection against unreasonable searches and seizures. No one in this body should take that right lightly, and I think most people would agree that having to wait thirty days to find out your home has been secretly searched is a very big deal.

So this conference report is inadequate and it should not be passed. I believe it will not pass. So let me talk for a minute about what happens next if, as I expect, the cloture motion fails. Do those who oppose the conference report want the Patriot Act to expire? Of course not. It is false to suggest that we do, and it is shameful to threaten that that is what will happen if the Senate does not approve this conference report. The only way that the Patriot Act will expire at the end of this year is if the proponents of the conference report, in this body or the other body, block alternative reauthorization bills that can easily pass with widespread, bipartisan support. Now is not the time for brinksmanship or threats. Now is the time to do the right thing for the American people and for the constitutional rights and freedoms that make our country great.

It is becoming more and more clear that this conference report cannot pass. So it is time to figure out what can pass. I submit that the Senate bill is the consensus that we seek. We should pass it again, as we did by unanimous consent before, and send it to the other body. And we should with one voice call on the House to pass that bill and send it to the President for signature. That should have happened months ago and it is what should happen today.

Mr. President, I am very proud to be part of a bipartisan coalition working together to strengthen protections for civil liberties in the Patriot Act. I think the demonstration of bipartisanship on this floor over the last few days has been remarkable. I remember well a hearing on the SAFE Act in the last Congress when the Senator from Idaho, Senator Craig, was still on the Judiciary Committee. He said something that struck me at the time and has stayed with me since. I don’t have his exact words here, but he basically said that the Patriot Act will not be reauthorized without addressing the issues we raised in the SAFE Act. He was making a prediction and a promise then. And soon I believe we will see that he was right.

We have stayed together ever since our bill was first introduced. We knew the time would come when we would have to take a stand. And now we have. We are united today, as we were then. This is not a partisan issue. This is an American issue. This is a constitutional issue. We can come together to give the government the tools it needs to fight terrorism and protect the rights and freedoms of innocent citizens. And we can do that before the end of this year. But first, we must keep this inadequate conference report from becoming law by voting No on cloture.

I yield the floor.

Russ Feingold is a US Senator from Wisconsin. In a crucial vote later Friday, the Patriot Act's Senate supporters were not able to get the 60 votes needed to overcome a filibuster by Sens. Russ Feingold, D-Wis., and Larry Craig, R-Idaho, and their allies. The final vote was 52-47.


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