KENNEDY STATEMENT ON PATRIOT ACT
(As prepared for delivery at first Meeting of PATRIOT Act Conferees)
In the wake of the tragic events of September 11th, Congress, the Administration and the country faced the obvious urgent need to do all we can to strengthen our national security and our counterterrorism strategy. Six weeks after those attacks, Congress moved swiftly to enact new intelligence and law enforcement powers for the federal government.
Even at that time, we had the foresight to ensure that we would review the powers granted under the PATRIOT Act at a later date. That's why we put sunset provisions in the original legislation -- to require the Administration and Congress to work together to assess these difficult issues in light of these new powers.
We recognized the need to monitor the implementation of the new powers carefully, to make sure we achieve the right balance between counterterrorism and civil liberties.
The 9/11 Commission put it plainly in its report:
"The burden of proof for retaining a particular governmental power should be on the executive, to explain that the power actually materially enhances security and that there is adequate supervision of the executive's use of the powers to ensure protection of civil liberties.
If the power is granted, there must be adequate guidelines and oversight to properly confine its use."
That should be our guiding principle as we try to reconcile the differences between the House and Senate bills.
On the whole, many of the powers granted under the PATRIOT Act have proven to be effective and legitimate. In the past four years, the FBI tells us that the PATRIOT Act has been instrumental in helping the government to apprehend terrorists, uncover terrorism plans, and dismantle terrorist cells. As a result there is now wide, bipartisan agreement that many of the expiring provisions should be reauthorized with minor modifications.
However, it has been a constant struggle for Congress and the American people to obtain adequate information on the implementation of the most controversial provisions of the original PATRIOT Act. Seven states and nearly 400 communities have passed resolutions to protect the civil liberties of their citizens. Libraries and bookstores have campaigns for reform, and thousands of Americans have signed petitions calling for reform.
That's why sunsets are such an important part of the Act. Congress committed itself to re-examining the Act this year, a non-election year, and to assess which powers should be retained, which should be revised, and which should be repealed. I strongly support the inclusion of sunset provisions and increased reporting in this reauthorization. Without it, Congressional oversight will be weakened and made meaningless.
Based on information declassified during our oversight hearings, we know how many times two of the expansive powers under the bill were used. Section 215 and Section 206 have been used less than 50 times. With this information, we can confidently add meaningful safeguards to require a proper nexus between the information sought and a foreign intelligence investigation.
Senator Durbin and many others have repeatedly asked for the use of the National Security Letters to be declassified. But, these efforts have been unsuccessful and so the public is left to rely on unverified accounts in the press. In light of recent reports, this conference should consider carefully whether reporting on National Security Letters should be available to the public. As in the case of other PATRIOT Act powers, public access could be given to this information without jeopardizing our security.
We should also consider a sunset on the use of National Security Letters, and a requirement for federal agencies to report to Congress on data-mining activities. Dragnet sweeps through vast fields of personal information collected on innocent Americans is an inefficient and over-reaching counterterrorism tactic.
We can reasonably minimize the amount of data collected, and protect unsuspecting citizens from intrusions into their personal privacy. I hope the conference will retain the provisions, supported by Chairman Sensenbrenner that require federal agencies to report to Congress on data-mining programs that involve the civil liberties and privacy of all Americans.
There is also great concern about government access to medical records, tax records and library records in cases where there is no individualized suspicion or even a plausible link to terrorism. The Senate-passed bill requires the government to convince a judge that persons are connected to terrorism or espionage before obtaining their library records, their medical records, or other sensitive personal information. Our Senate bill contains fundamental protections in accord with the Bill of Rights. It had the unanimous approval of the entire Senate and the heightened standard added to Section 215 should be preserved by the conference.
Four years ago, Members of Congress came together on both sides of the aisle, united by grief and patriotism. Under the leadership of Chairman Sensenbrenner and Ranking Member Conyers, the House Judiciary Committee voted out a bill with unanimous support among the thirty-six members of the committee.
This time, the Senate has enacted a proposal that won unanimous, bipartisan support of the Senate, because we reached a consensus on all sides of the political spectrum. We agreed on the need to give law enforcement and intelligence officers stronger powers to investigate and prevent terrorism, to prevent terrorists from entering the country, and to achieve better coordination between the law enforcement and the intelligence communities. We recognized that protection of our civil rights and civil liberties is an essential part of our democracy.
In retaining the expanded powers of the PATRIOT Act, the conference has the responsibility to protect the constitutional safeguards that are indispensable to our democracy. Both the House and Senate bills contain provisions that would improve the original legislation. None of these changes will impede the ability of law enforcement and intelligence officials to investigate and prevent terrorism.
We all have expectations that this final bill will contain reasonable limits to prevent gross abuses of federal power. It's important, for example, that the House and Senate bills don't expand administrative subpoenas, and we should continue to oppose any attempt to allow these sweeping searches without court approval.
Hopefully, we can achieve our goal of reviewing and reauthorizing the expiring provisions of the PATRIOT Act, without making the conference bill a vessel for other controversial provisions that have not been given adequate consideration.
The House bill contains changes in death penalty sentencing that go far beyond terrorism and would jeopardize all federal capital prosecutions -- not just those cases brought against terrorists. These controversial provisions are opposed by the Conference of Catholic Bishops, Human Rights Watch, the American Bar Association, former federal prosecutors and other religious organizations.
Any such major change in capital cases needs to be carefully considered by the full Congress, rather than uncritically endorsed in conference, and I strongly oppose including such sweeping changes in criminal procedure in this bill.
The entire country -- really, the entire world -- is watching to see how we strike the balance between national security and the Constitution.
None of us will ever forget where we were and what we were doing on 9/11. We will never forget the lives that were lost and the heroes who were the first to respond. We will continue to honor all those working so hard to prevent future terrorist attacks. Hopefully, we can all work together here in that spirit of unity to protect our country and our ideals.