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Public Statements

Small Business Additional Temporary Extension Act of 2011

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Date:
Location: Washington, DC

BREAK IN TRANSCRIPT

Mr. PAUL. I thank the Senator for his comments. I think what this shows is that it is a bipartisan effort that says we should protect our Constitution. Those on the left and those on the right who believe in the Constitution believe it should be protected. That brings together some of us who may not necessarily agree on all other issues, but when it comes to the Constitution, when it comes to the basic Bill of Rights, we are concerned both on the right and left, on the Democratic and the Republican side. The problem is that those of us who are concerned with the Constitution are in the minority of both sides, so we are being quieted down, we are being told to sit quietly in the back of the room and don't make waves. We want to have a debate over the PATRIOT Act because we are concerned about our liberties. We are all concerned about terrorism too, but we don't think you have to give up your liberties in order to combat terrorism.

On February 15, we extended the PATRIOT Act for 90 days. During that time and on the Senate floor on February 15, we were promised a week of debate, and we were promised an open amendment process. We are now amidst a process where we will have no debate and no amendments. Do we fear terrorism so much that we will not have debate? Do we fear terrorism so much that we throw out our Constitution and are unwilling and afraid to debate our Constitution? I think it is a sad day that we can't do that. Are Senators afraid to vote on the issues of the day, afraid to debate the Constitution, afraid to have an open forum and debate

whether the PATRIOT Act is constitutional? I think this does a great disservice to the voters.

They talk about this being the world's most deliberative body. We are unwilling to deliberate. We are unwilling to have questions broached as to whether the PATRIOT Act is unconstitutional. We have had 99 days since we extended it, 43 days in session, and we have had 56 votes. What does that mean in the context of things? We are setting a record for the least amount of votes ever to occur in the Senate. There are some important questions we should be debating, but unless it is a forgone conclusion, unless they have counted the votes and decided the outcome before we have the debate, we are precluded from debating.

Wendell Phillips, the great abolitionist, wrote, ``Eternal vigilance is the price of liberty.'' The PATRIOT Act is a perfect example of how a lack of vigilance leads to loss of liberty.

In the aftermath of 9/11, we amended the Constitution with the PATRIOT Act. You say: Whoa, we didn't have an amendment to the Constitution, did we? We did not do it the way we are supposed to, but we did in reality amend the Constitution with the PATRIOT Act. How did this happen? We were fearful. Mr. President, 9/11 had happened, and we wanted to stop terrorism. All of us want that, but do we have to give up our constitutional liberties in order to do that?

How did the PATRIOT Act change the Constitution? How did the PATRIOT Act change the fourth amendment? In the fourth amendment, it says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The PATRIOT Act changed this. The PATRIOT Act changed the standard from probable cause, which is a longstanding position and standard within the courts which limits the police from coming into your house unless there is probable cause that you have either committed a crime or are in the act of committing a crime--we changed this to a standard we now call relevance. But that is changing the Constitution.

How do you change the Constitution by majority vote? It is supposed to be a supermajority in both bodies. Then it is to go back and be ratified by three-fourths of the States. It is supposed to be difficult to change the Constitution, difficult to amend the Constitution. Why? Because we thought some of these rights were so important that we should not allow a majority to change them. Those of us who own guns and believe in gun ownership think the second amendment is protected from a simple majority taking away the second amendment. Likewise, the first amendment--those of us who prize the ability of the press to print and to respond and to hold beliefs, however unpopular, those of us who wish to have a country in which religion is not hampered and we can say what we believe and not have it hampered by the government, we don't believe a majority should take away these rights.

But a majority did take away part of the fourth amendment because we changed the standard of the fourth amendment from probable cause to relevance. So if they want to look at your records, they just have to say it is relevant. They don't have to say you are a terrorist. They don't have to say you are a foreigner. They don't have to say you are conspiring with anyone. They just have to say they have some interest in your library records.

How often is this going on? There is something called suspicious activity reports. Some of this was started before the PATRIOT Act, some of it is separate from the PATRIOT Act, but much of it was emboldened by the PATRIOT Act. The suspicious activity reports are where your bank spies on you. You may not know this is happening, you may not even know if they have spied on you, and they probably won't tell you. But if you made a transaction that involved more than $5,000, you could well have been spied on by your bank and reported to the government.

Some people say: I am not doing anything wrong; I don't care if they look at my records. Here is the thing: If you look at my visa bill, you can tell what doctors I go to. If I see a psychiatrist and I don't want everybody to know it, that may be on my Visa bill these days. What magazines I read is on my Visa bill, what books I order from Amazon or another bookseller from the Internet, whether I drink alcohol, whether I gamble. There is a lot about your life that is involved in your financial records, and I think they do deserve protection and we do deserve a standard where we don't say, well, it might be relevant, or, we might just want to troll through all these records to see if anybody might be committing a crime.

This one is even worse than many of the other aspects because the suspicious activity reports do not begin with the government asking any questions. They tell your bank to watch you. Your bank is to watch you and to watch all of your transactions and to report to the government. So they have force.

You say: Maybe they are only reporting terrorists. Since 2001, since 9/11, 8 million suspicious activity reports--8 million--have been filed. Over 1 million of these are filed a year. The thing is, you could well ask for a Freedom of Information Act inquiry and ask whether you have been investigated by your government for your transactions.

My point is this is an invasion of your privacy. It does not have any judicial restraint upon it. And the other thing is, it may not even be good for finding terrorists. It may be they are getting so much information they cannot even read or listen to all the information. It is kind of like what they are doing at the airports. Because they insist everybody be searched and everybody be patted down, we are patting down 6-year-olds. A little girl in my town--her dad is a physician and practiced with me at my same practice--was patted down where they are putting their hands inside her pants. This is absurd--6-year-old girls.

The thing is, by doing that, they are wasting time on people who will not be attacking us and spending less time on people who will be attacking us. It is the same with banking records. If they are looking at your banking records, they do not have the time to spend looking at records of people who possibly would be attacking us. Eight million records have been looked at--no judge's order, no judicial review. This one is not even reviewed by anybody in government. They are giving this power carte blanche to banks, and they are telling the banks: If you do not spy on your customer, you will be fined. They estimate that $7 billion a year is spent by banks complying with this order to spy on their customers.

The thing is, we are having trouble in our economy. The banks are struggling. The economy is struggling. We are having trouble with jobs. And yet we are going to add $7 billion of costs onto the banks to spy on their customers.

Might there be an occasion where a bank transfer or bank activity could be a terrorist activity? Yes. If we are investigating those, let's ask for a warrant. You say: It will be too slow. We never get it. Warrants are almost never denied. There is a special court set up for the investigation of intelligence. It is called the FISA Court. It has been around since the 1970s. Before the PATRIOT Act, the FISA Court never turned down a warrant.

You say: These people are awful; we have to get them off the street. It doesn't matter, I don't want any restraint; I just want it done.

Unfortunately, that has been the attitude of the people up here and a majority of people after 9/11. The people were so frightened that they said: Do anything, I don't care.

The problem with that attitude is, even if you want to argue that has not been abused yet, what happens when people are elected to your government who decide they do not like your religion or you believe in a certain kind of marriage, and you want to say this and they want to investigate you? There is no step to stop that. There is no step to say: Your church believes in this unorthodox belief or this belief that we do not call politically correct or it is no longer acceptable, but we want to investigate the banking records of the church and see if we can take away their IRS number or tax exemption. If you do not have any restraint to these activities, someday we will get a government that has no restraint and then goes forward to say: We want to get that church shut down because that church is saying something we disagree with or these people are reading these books we do not like.

This goes across the party aisle. The Library Association is concerned with this also, that people's books are being looked at. Think about it. Do you want the government to know what books you read? Do you want to be on a watchlist because of the books you read?

They say: Oh, there are provisions. We have made provisions. That will not happen.

The only way you have a real provision or protection is if you have procedural steps that say someone must review this before it happens.

If we have someone who we think is terrible and they need to be off the streets, if they are accused of rape, accused of murder, accused of robbery, accused of the most heinous crimes we can think of, and it is 2 in the morning, we call a judge and we get a warrant. It is almost never turned down. But it is one step removed from the police breaking down every door of every person they suspect and not having any kind of discussion with someone who has a level head, who is not part of the investigation.

Many up here will say we are in grave danger. If the PATRIOT Act expires, all things could happen and terrorism could break loose. What they are arguing, though, is that there is a scenario where we would not get warrants to investigate terrorism. That never existed. Before the PATRIOT Act, we were not turning down these warrants.

Some have argued that Moussaoui, the 19th hijacker--he was captured a month in advance of 9/11--many have said that if we only had the PATRIOT Act, we could have gotten him. That is untrue. There is a provision called the lone wolf provision in the PATRIOT Act, but we did not get Moussaoui because we did not do our job. We did not communicate well. The superiors to the officers and the FBI agents in the field did not even ask for a warrant. They turned down a request for a warrant without even asking the FISA Court for it.

We have the 19th hijacker a month in advance. We have his computer. When we do look at his computer on 9/12, we link him very quickly, within a matter of hours, to all the other hijackers. It is easy in hindsight to say we could have stopped 9/11, but to tell you the truth, we have to look at the rules and say: Could we possibly have gotten that information? The answer is yes.

The FBI agent in Minnesota wrote 70 letters to his superiors. The FBI was told that Moussaoui was possibly an agent of terrorism. The French Government confirmed it. That was all we needed. With that information, had they gone to the FISA Court, they would have gotten a warrant. When the 9/11 Commission report came out, they acknowledged as much. Moussaoui's warrant, in all likelihood, would not have been turned down, and there is a possibility we would have stopped it.

The suspicious activity reports are particularly galling because they are businesses that are forced to spy on their citizens. There is another form of spying that goes on as well. These are called national security letters. These are like warrants. They go after your banking records, such as the suspicious activity reports, but they are a little more targeted in the sense that the government is asking for an NSL. But it is not a judge who asks for an NSL. The person who asks for an NSL is an FBI agent, essentially a police or law enforcement agent. The danger here is that we have removed the step where the police officer or the FBI agent would then ask for permission from a judge. That is my problem with these national security letters.

Some say: We are not doing that many of them. Initially, we were not. Now we have done over 200,000 national security letters. One of my reforms, if it were to take place, would be to ask judges to review these. I see no reason why they should not review them.

Some have said: You have no expectation of privacy. The courts have already ruled that you have no expectation of privacy in your papers or electronic records. This is the way it has been interpreted, but I think it has been misinterpreted. I think it has been interpreted that your banking records do not deserve privacy when they are not in your house, and I think it is an incorrect interpretation of the fourth amendment. The fourth amendment says that in your papers, you are to be protected. It does not specify those papers are in your possession or in someone else's.

At this time, I yield the floor to my good friend from South Carolina.

Mr. DeMINT. Mr. President, I thank Senator Paul. I came down to the floor to thank him for bringing up a number of issues of concern and being willing to stand here and tell America what those concerns are.

I also respect his demanding the opportunity for debate and for amendments of such an important bill. It is extraordinary, particularly after the majority leader had promised in February that the PATRIOT Act renewal would get a week of debate with the chance to offer amendments. After a couple of weeks of doing absolutely nothing on the Senate floor, Senator Paul and others were denied the opportunity to offer amendments that would have brought up legitimate debates about the PATRIOT Act.

There are a number of things a lot of us would have liked to have learned more about, heard some of the arguments we have heard from Senator Paul today. Unfortunately, that has been limited to a relatively small amount of time. It is, frankly, stunning to me that the majority is actually willing to let the PATRIOT Act expire rather than give Senator Paul a few amendments. That is an extraordinary situation for the Senate that considers itself the world's greatest deliberative body when one of the most important pieces of legislation we could consider is jammed up against a break with no opportunity for amendment.

I do not want to interrupt Senator Paul's flow because I think a lot of the things he is talking about are important that we consider. Unfortunately, they will not be considered. It does not sound as if his debates will be allowed and for the amendments to be considered. It sounds as if what they are going to try to do is blame him for us voting late or early. But I commend Senator Paul for standing for good judgment and common sense on a matter of this importance. Whether we agree or disagree with all the amendments is not the point. It is too important to be handled this way.

I will allow Senator Paul to continue, and I yield the floor. I thank him for what he is doing.

Mr. PAUL. Will the Senator yield for a question?

Mr. DeMINT. Yes, I will.

Mr. PAUL. Mr. President, not only are we not debating the PATRIOT Act, but does the Senator from South Carolina think we have given sufficient floor time to amendments and proposals as to how to deal with the debt problem?

Mr. DeMINT. Mr. President, I think the Senator from Kentucky knows the answer to that question. Some of us have reserved time between 2:30 p.m. and 3:30 p.m. for some give-and-take and some debate on the floor about the budget votes that will be this afternoon. But that time was canceled by the majority.

We have an impending debt that everyone in the world, except for those inside this body, seem to understand. We are in trouble as a country. The majority has not produced a budget in over 700 days, I think it is. At the same time, we are trying to negotiate how we will move forward on this huge important point of raising the debt ceiling which none of us want to do. We are avoiding the subject of balancing the budget. The majority leader has said these kinds of issues are off the table.

It is very frustrating, whether it is the debt ceiling, whether it is the PATRIOT Act and our homeland security, that we are spending weeks doing nothing, bringing up, in some cases, controversial judges who should not have been nominated in the first place, spending day after day of floor time and not bringing up important issues. We are all concerned. I know America is concerned.

Again, I thank Senator Paul very much for the willingness to bring out the point that we have something here that is very important to our security, to the privacy of every American. It needs to be vetted, debated, and amendments need to be offered. Yet this has been denied after a promise. I certainly encourage the Senator to continue. I thank him for his courage.

Mr. PAUL. Mr. President, one other question is, we will not all agree necessarily on the PATRIOT Act. The thing is, even for those who feel it is important it not expire, why would they not consent to some debate? I have asked for three amendments, three votes. We could do them in the next hour. We could debate and have this time and there would be no expiration of the PATRIOT Act for those who think it expiring is a problem.

Mr. DeMINT. Mr. President, as the Senator from Kentucky knows, he has 11 amendments he wishes to have considered. He was willing to compress the time so we could do that expeditiously. They would not agree to that. Senator Paul is willing to compromise to three amendments. It sounds as though they do not want him to offer those amendments because, frankly, they do not want to take a vote on some of them that may expose what they believe. It is a frustrating situation for Senator Paul. As our majority friends over here like to do, they cause the problem and try to blame it on us. As the Senator said, within a few hours, this could be decided and over. We could pass the PATRIOT Act. Folks could vote for or against what they want. We could send it to the House, and it could be done. It does appear the majority is willing to let this important legislation lapse just to stop the Senator from Kentucky from offering a few amendments. That is an extraordinary situation.

Again, I thank the Senator for yielding. I appreciate him getting this debate out on the floor.

Mr. PAUL. Mr. President, I do not quite grasp why they are so fearful of debate and fearful of votes, that they are willing to let the PATRIOT Act expire to prevent debate and prevent votes. The sticking point turns out to be an amendment basically on preventing gun records from being sifted through under the PATRIOT Act.

People say: Well, what if someone--a terrorist--is selling guns illegally? Couldn't we get them? Yes, we could get them the way we get everybody else: Ask the judge for a warrant. Judges routinely do not turn down warrants. It worked for us for 225 years, until the PATRIOT Act, when we had a process, the fourth amendment, protecting us from an overzealous government. But it also worked to catch criminals.

At this time I yield the floor temporarily to my good friend from Utah.

The PRESIDING OFFICER. The Senator from Utah.

Mr. LEE. Mr. President, I thank the distinguished Senator from Kentucky for standing up for the fourth amendment principles he has articulated today.

This is an important issue to all Americans. Americans are at once concerned about our national security. They want to make sure we can identify and apprehend those people who would harm us. At the same time, Americans are firmly committed to the idea of constitutionally limited government--the concept that regardless of how passionately we might feel about the need for certain government intervention, we can't ever allow government to be operated completely unfettered. We have liberty in place whenever government is controlled by the people, and whenever there are certain things that are beyond the reach of the government.

Senator Paul has helped identify some key areas of concern that have been implicated by the PATRIOT Act. He has suggested that we ought to at a minimum have a robust debate and discussion over some amendments that might be proposed to the PATRIOT Act before we proceed. Three months ago we had a discussion, we had a vote, and there were a few of us who voted against the PATRIOT Act--not because we don't love America, we do. We want to protect America. We voted against it because we love America, because we believe in a constitutionally limited government, because we want to make it better. We want to make this something that can at the same time protect Americans but without needlessly trampling on privacy interests, including many of those privacy interests protected by the fourth amendment.

Bad things happen when we adopt a law without adequately discussing its merits. Years ago, when the PATRIOT Act was adopted, there were a number of people who raised some of these privacy concerns. For that and other reasons, Congress made the decision way back then--almost 10 years ago--to adopt the PATRIOT Act and adopt certain provisions of it subject to some sunsetting provisions so that Congress would periodically be required to debate and discuss these provisions. It does us no good if every time it comes up we are told we have to vote for it or against it; we can't really debate and discuss it or consider amendments to it.

We were told 3 months ago that at the end of May--and we are now here--we would have an opportunity to debate, discuss, and consider amendments. That opportunity has now been taken away from us and with it the chance to address many of these important privacy implications, many of which do implicate the fourth amendment in one way or another.

Senator Paul has referred to some of them, including some of the implications of the national security letters which, while not directly implicated by the expiring provisions at issue right now, are inextricably intertwined with other issues that are in front of us, including those related to section 215 orders and including the roving wiretap issue that is up for reauthorization.

So I speak in support of the idea of robust debate and discussion, especially where, as here, it relates to something that is so important to the American concept of limited government and so closely related to our fourth amendment interests. We ought to have robust debate, discussion, and an opportunity for amendment.

I thank Senator Paul for his leadership in this regard.

The PRESIDING OFFICER. The Senator from Kentucky.

Mr. PAUL. When we look at this debate and we talk about exactly where we should go from here and why it is important, it is important to look at the PATRIOT Act and say to ourselves: How do we protect our Constitution if we are not willing to protect all parts of it? So many conservatives are avid for the second amendment. I am one of them. I want to protect the second amendment. But I tell those who want to protect the second amendment that they can't protect the second amendment if they don't believe in the first amendment. If they don't believe in the first amendment, they can't have that voice that it will take. If they want to place limitations on groups that advocate gun ownership under the second amendment, that will limit the second amendment. But, likewise, they cannot protect the second amendment if they don't believe in the fourth amendment.

There is no reason we should allow a government to look at our gun records and to troll through all of them. If a government thinks someone is a terrorist, name that person, name the place, and show probable cause. Do we want to allow government to troll through our records? The government has looked at 28 million electronic records--28 million. They are just sifting through all of our records looking for what. I want them to catch terrorists, but I want them to look at the Constitution with some restraint to say this person is a terrorist or we suspect him to be so, for this reason. We need not be so frightened that we give up our liberty in exchange for security.

Some would say our government is full of good people who would say: I have not done anything wrong, and I don't have to worry about it. We are not worried about good government; we are worried about bad government. Jefferson said once upon a time if all men were angels, we would have no concern for constitutional restraint. But there have been times in our history and in the history of other countries where unsavory characters, where despotic characters have won election.

When Hitler was first elected in the 1920s and early 1930s, he was elected popularly. The thing is, they were so mad and upset over World War I that they basically traded. They said: We want a strong leader. Give us a strong leader. But if we have rules that allow that strong leader to grab and do things, that is the real danger. At a minimum now, the danger is--it is a great danger to us if we allow this to go on if we get a despotic government at some point in time.

We are not worried about good people in government. We are worried about people who might be elected who would abuse these powers. It has happened. Look at what happened during certain administrations where people looked at IRS records of enemies. Look at what is happening now where the executive branch is looking at donor records for those who do business with government. If you are a contractor and you do business with government, they want to know who you donate to.

There are dangers to allowing the government to snoop through our records. It doesn't mean we don't want to stop crime, we don't want to stop terrorism. It means we need to have a rule of law, and we need to pay attention to the rule of law.

We proposed several amendments. One of them went through the Judiciary Committee. It was deliberated. It was amended. It was passed with bipartisan support, but we won't get a vote on it. It disappoints me that they are afraid to debate this on the Senate floor, and we will get no vote on amendments that were offered seriously to try to reform the PATRIOT Act to take away some of the abuses of it.

We offered three amendments to the PATRIOT Act. One was on the gun records. That apparently unhinged people who are afraid of voting on any gun issues. Because of that, we are all going to be denied any debate or votes.

Some will say: Oh, you are going to keep your colleagues here until 1 in the morning. Well, I think when they are here tonight at 1 in the morning, maybe they will think a little bit about why they are here and why we had no debate and why we had the power to have the debate at any point in time. I have agreed and said we can have a vote on the PATRIOT Act in an hour or 2 hours. We could have had a vote on the PATRIOT Act yesterday. But I want debate, and I want amendments. I think that is the very least the American people demand and this body demands, that there be open and deliberate debate about the PATRIOT Act.

One of our other amendments has to do with destroying records. Some of these records they take from us through the bank spying on us, or the government spying on us, are not destroyed. I think these records should be destroyed at some point in time.

For goodness' sakes, if you are not a terrorist, why are they keeping these records? There ought to be rules on the destruction of these records if you are not a terrorist and they are not going to prosecute you.

The fourth amendment says we should name the place and the person. We have one wiretap called the John Doe. They don't name the place or the person, and they are not required to. I think we should. Now, are there times when it might be a terrorist when we say, well, we don't want to name the person? We don't have to name them in public. We could name them to the FISA commission. I do not object to them being named and the name being redacted, but the name should be presented to the judge who is making the decision. I want a judge to make a decision.

James Otis--part of our revolution--for the 20 years leading up to the American Revolution, there was a debate about warrants. They issued what were called writs of assistance. They are also called general warrants. They weren't specific. They didn't say what crime one was being accused of, and the soldiers came into our houses. They would lodge soldiers in our houses, and they would enter into our houses without warrants. The fourth amendment was a big deal. We had passed the fourth amendment, and it was one of the primary grievances of our Founding Fathers.

I don't think we should give up so easily. I don't think we should be cowed by fear and so fearful of attack that we give up our liberties. If we do, we become no different than the rest of the countries that have no liberties. Our liberties are what make us different from other countries. The fact that we protect the rights, even of those accused of a crime--people say, well, gosh, a murderer will get a trial. Yes, they will get a trial because we don't know they are a murderer until we convict them. We want procedural restraints.

People say: You would give procedural restraints for terrorists? I would say at the very least, a judge has to give permission before we get records. The main reason is because we are not asking for 10 records or 20 records or 40 records of people connected to terrorism. We are asking for millions of records.

There are people in this room today who have had their records looked at. It is difficult to find out because what happens--here is the real rub, and this is how fearful they were. When the PATRIOT Act was passed shortly after 9/11, they were so fearful that they said: If a letter, a demand letter, a national security letter asks for records, you are not allowed to tell your attorney. You were gagged. If you told your attorney, they could put you in jail for 5 years. It is still a crime punishable by 5 years in jail.

If I have Internet service and they want my records on somebody, they don't tell me or a judge. We have no idea. There is no probable cause. This person might be relevant, which could mean anything, however tangential. If I don't reveal those records, I go to jail. If I tell my wife they are asking for my records, I could go to jail.

This secrecy on millions of records, this trolling through millions of records is un-American. It is unconstitutional. They have modified the Constitution through statutory law. We have given up our rights. It should be two-thirds of this body voting to change the Constitution and three-fourths of the States. We did it by 50 percent with one bill. The bill was hot when it came here. There was one copy of it. No one read it.

I came from the tea party, and I said: We must read the bills. I propose that we wait 1 day for every 20 pages so we are ensured they are reading the bills. The PATRIOT Act was hundreds of pages long and nobody read it. Not one person read it because it wasn't even hardly printed. There were penciled edits in the margin, and it was passed because we were afraid.

But we can't be so afraid that we give up our liberties. I think it is more important than that. I think it is a sad day today in America that we are afraid to debate this. The great constitutional questions such as this, or great constitutional questions such as whether we can go to war with just the word of the President, these great constitutional questions are not being debated because we are so fearful of debate.

I urge the Senate to reconsider. I urge the Senate to consider debating the PATRIOT Act, to consider amendments, and to consider the Constitution.

Thank you. I yield the floor.

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