Small Business Additional Temporary Extension Act of 2011

Floor Speech

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Mr. PAUL. I am pleased today to come to the floor of the Senate to talk about the PATRIOT Act. I am pleased we have cracked open the door that will shed some light on the PATRIOT Act. I wish the door were open wider, the debate broader and more significant, but today we will talk a little bit about the constitutionality of the PATRIOT Act.

I was a cosponsor of Senator Leahy's amendment, and I think it would have gone many great steps forward to make sure we have surveillance on what our government does. It would have authorized audits by the inspector general to continue to watch over and to make sure government is not invading the rights of private citizens, and I do support that wholeheartedly.

Jefferson said if we had a government of angels, we wouldn't have to care or be concerned about the power that we give to government. Unfortunately, sometimes we don't have angels in charge of our government. Sometimes we can even get a government in charge that would use the power of government in a malicious or malevolent way, to look at the banking records of people they disagree with politically, to look at the religious practices of people they disagree with. So it is important that we are always vigilant, that we are eternally vigilant of the powers of government so they do not grow to such an extent that government could be looking into our private affairs for nefarious reasons.

We have proposed two amendments that we will have votes on today. One of them concerns the second amendment. I think it is very important that we protect the rights of gun owners in our country, not only for hunting but for self-protection, and that the records of those in our country who own guns should be secret. I don't think the government, well intentioned or not well intentioned, should be sifting through millions of records of gun owners. Why? There have been times even in our history in which government has invaded our homes to take things from us. In the 1930s, government came into our households and said give us your gold. Gold was confiscated in this country in 1933. Could there conceivably be a time when government comes into our homes and says, We want your guns?

People say that is absurd. That would never happen. I hope that day never comes. I am not accusing anybody of being in favor of that, but I am worried about a government that is sifting through millions of records without asking: Are you a suspect; without asking, are you in league with foreign terrorists? Are you plotting a violent overthrow of your government? By all means, if you are, let's look at your records. Let's put you in jail. Let's prosecute you. But let's not sift through hundreds of millions of gun records to find out whether you own a gun. Let's don't leave those data banks in the hands of government where someday those could be abused.

What we are asking for are procedural protections. The Constitution gave us those protections. The second amendment gives us the right to keep and bear arms. The fourth amendment is equally important. It gives us the right to be free of unreasonable search. It gives us the right to say that government must have probable cause. There must be at least some suspicion that one is committing a crime before they come into one's house or before they go into one's records, wherever one's records are. The Constitution doesn't say that one only has protection of records that are in one's house. One should have protection of records that reside in other places. Just because one's Visa record resides with a Visa company doesn't make it any less private. If we look at a person's Visa bill, we can find out all kinds of things about them. If we look at a person's Visa bill, we can find out what doctors they go to; do they go to a psychiatrist; do they have mental illness; what type of medications do they take.

If someone looked at my Visa bill, they could tell what type of books or magazines I read. One of the provisions of the PATRIOT Act is called the library provision. They can look at the books someone checks out in the library. People say, well, still, a judge has to sign these warrants. But we changed the standard. The standard of the fourth amendment was probable cause. They had to argue, or at least convince a judge, that you were a suspect, that you were doing something wrong. Now the cause or the standard has been changed to relevance. So it could be that you went to a party with someone who was from Palestine who gives money to some group in Palestine that may well be a terrorist group. But the thing is, because I went to a party with them, because I know that person, am I now somehow connected enough to be relevant? They would say, Well, your government would never do that. They would never go to investigate people.

The problem is, this is all secret. So I do not know if I have been investigated. My Visa bill sometimes has been $5,000. Sometimes we pay for them over the phone, which is a wire transfer. Have I been investigated by my government? I do not know. It is secret.

What I want is protection. I want to capture terrorists, sure. If terrorists are moving machine guns and weapons in our country, international terrorists, by all means, let's go after them. But the worst people, the people we want to lock up forever--the people all of us universally agree about: people who commit murder, people who commit rape--we want to lock them up and throw away the book, and I am all with you. But we still have the protections of the fourth amendment.

If someone is running around in the streets of Washington tonight--at 4 in the morning--and we think they may have murdered someone, we will call a judge, and we will get a warrant. Just because we believe in procedural protections, just because we believe in the Constitution does not mean we do not want to capture terrorists. We just want to have some rules.

I will give you an analogy. Right now, you have been to the airport. Most of America has been to the airport at some point in time in the last year or two. Millions of people fly every day. But we are taking this shotgun approach. We think everyone is a terrorist, so everyone is being patted down, everyone is being strip-searched. We are putting our hands inside the pants of 6-year-old children. I mean, have we not gone too far? Are we so afraid that we are willing to give up all of our liberty in exchange for security? Franklin said: If you give up your liberty, you will have neither. If you give up your liberty in exchange for security, you may well wind up with neither.

Because we take this shotgun approach, we take this approach that everyone is a potential terrorist, I think we actually are doing less of a good job in capturing terrorists because if we spent our time going after those who were committing terrorism, maybe we would spend less time on those who are living in this country, children and otherwise, frequent business travelers, who are not a threat to our country. Instead of wasting time on these people, we could spend more time on those who would attack us.

I will give you an example--the Underwear Bomber. For goodness' sakes, his dad reported him. His dad called the U.S. Embassy and said: My son is a potential threat to your country. We did nothing. He was on a watch list. We still let him get on a plane. He had been to Nigeria. He had been to Yemen twice. For goodness' sakes, why don't we take half the people in the TSA who are patting down our children and let's have them look at the international flight manifest of those traveling from certain countries who could be attacking us? For goodness' sakes, why don't we target whom we are looking at?

My other amendment concerns banking records. Madam President, 8 million banking records have been looked at in our country--not by the government. They have empowered your bank to spy on you. Every time you go into your bank, your bank is asked to spy on you. If you make a transaction of more than $5,000, the bank is encouraged to report you. If the bank does not report you, they get a large fine, to the tune of $100,000 or more. They could get 5 years in prison. They are overencouraged. The incentive is for the bank to report everyone. So once upon a time, these suspicious-activity reports were maybe 10,000 in a year. There are now over 1 million of these suspicious-activity reports.

Do I want to capture terrorists? Yes. Do I want to capture terrorists who are transferring large amounts of money? Yes. But you know what. When we are wasting time on 8 million transactions--the vast majority of these transactions being by law-abiding U.S. citizens--we are not targeting the people who would attack us.

Let's do police work. If there are terrorist groups in the Middle East and we know who they are, let's investigate them. If they have money in the United States or they are transferring it between banks, by all means, let's investigate them. But let's have some constitutional protections. Let's have some protections that say you must ask a judge for a warrant.

Some have said: How would we get these people? Would we capture those who are transferring weapons? We would investigate. We have all kinds of tools, and we have been using those tools.

Others have said: Well, we have captured these people through the PATRIOT Act, and we never could have gotten them. The problem with that argument is that it is unprovable. You can tell me you captured people through the PATRIOT Act and I can believe you captured them and you have prosecuted them, but you cannot prove to me you would not have captured them had you asked for a judge.

We have a special court. It is called the FISA Court. The FISA Court has been around since the late 1970s. Not one warrant was ever turned down before the PATRIOT Act. But they say: We need more power. We need more power given to these agencies, and we do not need any constitutional restraint anymore.

But my question is, the fourth amendment said you had to have probable cause. You had to name the person and the place. Well, how do we change, get rid of probable cause and change it to a standard of relevance? How do we do that and amend the Constitution without actually amending the Constitution? These are important constitutional questions. But when the PATRIOT Act came up, we were so frightened by 9/11 that it just flew through here. There were not enough copies to be read. There was one copy at the time. No Senator read the PATRIOT Act. It did not go through the standard procedure.

Let's look at what is happening now. Ten years later, you would think the fear and hysteria would have gotten to such a level that we could go through the committee process. Senator Leahy's bill went to committee. It was deliberated upon. It was discussed. It was debated. It was passed out with bipartisan support. It came to the floor with bipartisan support. But do you know why it is not getting a vote now? Because they have backed us up against a deadline.

There have been people who have implied in print that if I hold up the PATRIOT Act and they attack us tonight, then I am responsible for the attack. There have been people who have implied that if some terrorist gets a gun, then I am somehow responsible. It is sort of the analogy of saying that because I believe you should get a warrant before you go into a potential or alleged murderer's house, somehow I am in favor of murder.

I am in favor of having constitutional protections. These arose out of hundreds of years of common law. They were codified in our Constitution because we were worried. We were incredibly concerned about what the King had done. We were concerned about what a far distant Parliament was doing to us without our approval. We were concerned about what James Otis called writs of assistance. Writs of assistance were pieces of paper that were warrants that were written by soldiers. They were telling us we had to house the British soldiers in our houses, and they were giving general warrants which meant: We are just going to search you willy-nilly. We are not going to name the person or the place. We are not going to name the crime you are accused of.

If a government were comprised of angels, we would not need the fourth amendment. What I argue for here now is protections for us all should we get a despot, should we someday elect somebody who does not have respect for rights. We should obey rules and laws.

Is this an isolated episode we are here talking about, the PATRIOT Act, and that there is an insufficient time, that it is a deadline: Hurry, hurry; we must act. It is not an isolated time.

We have had no sufficient debate on the war with Libya. We are now encountered in a war in Libya, so we now have a war in which there has been no congressional debate and no congressional vote. But do you know what they argue. They say it is just a little war. But you know what. It is a

big principle. It is the principle that we as a country elect people. It is a principle that we are restrained by the Constitution, that you are protected by the Constitution, and that if I ask the young men and women here today to go to war and say we are going to go to war, there darn well should be a debate in this body. We are abdicating those responsibilities.

We are not debating the PATRIOT Act sufficiently. We are not having an open amendment process. It took me 3 days of sitting down here filibustering, but I am going to get two amendment votes. I am very happy and I am pleased we came together to do that. I wish we would do more. I wish Senator Leahy's bill was being voted on here on the floor. I wish there were a week's worth of debate.

The thing is, we come here to Washington expecting these grand debates. I have been here 4 months. I expected that the important questions of the day would be debated back and forth. Instead, what happens so often is the votes are counted and recounted and laboriously counted. When they know they can beat me or when they know they can beat somebody else, then they allow the vote to come to the floor. But some, like Senator Leahy's bill--I am suspicious that it is not going to be voted on because they may not be able to beat it. I support it.

So the question is, Should we have some more debate in our country? We have important issues pressing on us. I have been here for 4 months, and I am concerned about the future of our country because of the debt burden, because of this enormous debt we are accumulating. But are we debating it fully? Are we talking about ways we could come together, how Republicans and Democrats, right and left, could come together to figure out this crisis of debt? No. I think we are so afraid of debate but particularly with the PATRIOT Act.

The thing with the PATRIOT Act is that it is so emotional because anyone who stands up, like myself, and says we need to have protections for our people, that we should not sift through the records of every gun owner in America, looking and just trolling through records--interestingly, we have looked at 28 million electronic records, when the inspector general looked at this--28 million electronic records. We have looked at 1,600,000 texts. If you said to me: Well, they asked a judge, and they thought these were terrorists, I do not have a problem. The judge gives them a warrant, and they look at these text messages or electronic records. But do you want them trolling through your Facebook? Do you want them trolling through your e-mails? Do you want a government that is unrestrained by law?

This ultimately boils down to whether we believe in the rule of law. So often we give lipservice to it on our side and the other side, and everybody says: We believe in the Constitution and the rule of law. When you need to protect the rule of law is when it is most unpopular. When everybody tells you that you are unpatriotic or you are for terrorism because you believe in the Constitution, that is when it is most precious, that is when it is that you need to stand up and say no.

We can fight. We can preserve our freedoms. We are who we are because of our freedoms and our individual liberty. If we give that up, we are no different from those whom we oppose. Those who wish to destroy our country want to see us dissolved from within. We dissolve from within when we give up our liberties. We need to stand and be proud of the fact that in our country it is none of your darn business what we are reading. It is none of your business where we go to see a doctor, what movie we see, or what our magazines are. It is nobody's business here in Washington what we are doing. If they think it is the business of law enforcement, get a warrant. Prove to somebody--at least have one step that says that person is doing something suspicious.

The thing is, these suspicious-activity reports--8 million of them have been filed in the last 8 years. The government does not have to ask for this; it is sort of like they have deputized the banks. The banks have now become sort of like police agencies. The banks are expected to know what is in the Bank Secrecy Act. They are expected to know thousands of pages of regulations. But do you know what they tell your bank. If you do not report everybody, if you do not report these transactions, we will fine you, we will put you in jail, or we will put you out of business.

That is a problem. It is a real problem that that is what has come of this. I think we need to have procedural protections.

Madam President, if at this point there is a request from the Senator from Illinois to yield for a question or a comment, I would be happy to, if it is about the PATRIOT Act.

OK. The amendments I will be proposing will be about two things, and we will have votes on them. We have been given the time to debate, which I am glad we fought for. We will basically be given a virtually insurmountable hurdle. This will be maybe the first time in recent history I remember seeing this, but they will move to table my amendments. In order for me to defeat the tabling motion, I will have to have 60 votes. It is similar to the votes we have when you have to overcome a cloture vote or you have to overcome a filibuster. But we really are not having any vote where there is a possibility of me winning. There is really a forgone conclusion. The votes are counted in advance.

I am proud of the fact that I fought for, though, and we got some debate on the floor and that maybe in bringing this fight, the country will consider and reconsider the PATRIOT Act. But we need to have more debate. Senator Leahy's bill needs to be fully debated and needs to come out. Maybe when there is not a deadline, maybe it will come forward. Maybe we can have some discussion.

But I guess most of my message is that we should not be fearful. We should not be fearful of freedom. We should not be fearful of individual liberty. And they are not mutually exclusive. You do not have to give up your liberty to catch criminals. You can catch criminals and terrorists and protect your liberty at the same time. There is a balancing act. But what we did in our hysteria after 9/11 was we did not do any kind of balancing act. We just said: Come and get it. Here is our freedom, come and get it. We do not care whether there is review in Congress. We do not care whether there is to be an inspector general looking at this.

One of my colleagues today reported: Well, there is no evidence those 8 million banking investigations are bothering or doing anything to innocent people. Well, there is a reason for there being no evidence: They are secret. You are not told if your bank has been spying on you. If your bank has put in a suspicious-activity report, you are not informed of that.

So the bottom line is, just because there is no complaint does not mean there have not been abuses. There is something called national security letters. These are written by officers of the law, by FBI agents. There is no review by judges. There have been 200,000 of these. There has been an explosion of these national security letters, and we do not know whether they are being abused because they are a secret.

In fact, here is how deep the secret goes. When the PATRIOT Act was originally passed, you were not allowed to tell your lawyer. If the government came to you with an FBI agent's request, you could not even tell your lawyer. This, is very disturbing. They finally got around to changing that. But you know what. If I had an Internet service, if I am a server and they come to me with a policeman's request, and they say: Give us your records--if I tell anyone other than my attorney, I can go to jail for 5 years.

What we have is a veil of secrecy. So even if the government is abusing the powers, we will never know. How much time remains?

The PRESIDING OFFICER. The Senator has 8 minutes remaining.

Mr. PAUL. Does the Senator from Illinois wish to interject?

Mr. DURBIN. I understand there is time on the other side as well.

The PRESIDING OFFICER. There is 28 minutes on the majority side.

Mr. DURBIN. I would like to speak on the majority's time.

Mr. PAUL. I will finish up then. As we go forward on these, I would hope there would be some deliberation and that the vote, as it goes forward, people will think about that we need to balance our freedoms with our security. I think we all want security. Nobody wants what happened on 9/11 to happen again.

But I think we do not need to simplify the debate to such an extent that we simply say we have to give up our liberties. For example, I cannot tell you how many times people have come up to me in Washington, unelected officials, and said: We could have gotten Moussaoui, the 19th hijacker, if we had the PATRIOT Act.

The truth is, we did not capture Moussaoui because we had poor police work. Ask yourself: Did we fire anybody after 9/11? We gave people gold medals. We gave them medals of honor for their intelligence work after 9/11. To my knowledge, not one person was fired.

Do you think we were doing a good job before 9/11? We had the 19th hijacker in prison, in custody for a month before 9/11. We had his computer. When they looked at Moussaoui's computer 4 days after 9/11 or the day after 9/11, they connected all of the dots to most of the hijackers and to people in Pakistan.

Why did we not look at his computer? Was it because we did not have the prerogative? They did not ask. An FBI agent in Minnesota wrote 70 letters to his superiors saying: Ask for a warrant. His superiors did not ask for a warrant. Do you think we should have done something about that after 9/11?

We gave everybody in the FBI and the CIA medals. We gave the leaders medals for meritorious service, and no one blinked an eye. What did we do? We passed the PATRIOT Act and said: Come and take our liberties. Make us safe. But to make us safe, we should not give up our rights to protect what we read, to protect what we view, to protect where we go and who we associate with. We should not allow governments to troll willy-nilly through millions of records.

You have heard of wireless wiretaps. A lot of these things are unknown because they are so secret that nobody knows. Even many of us do not even know the extent of these things. But I can tell you, there is a great deal of evidence that we were looking at millions of records and that millions of innocent U.S. citizens are having their records looked at.

Now, are we doing anything? Are we imprisoning innocent folks? No, I do not think we are doing that. I think they are good people. I think the people I have met in the FBI, the people I have met in our government want to do the right thing. But what I am fearful of is that there comes a time when we have given up these powers--for example, the constitutional discussion over war.

If we say: Well, Libya is just a small war. We do not care. We say Congress has no say in this. What happens when we get a President who decides to send 1 million troops into war and we simply say: Who cares. You know, we let the President do whatever he has to do because he has unlimited powers.

We fought a war, we fought long and hard to restrict--we wanted an Executive that was bound by the chains of the Constitution. We wanted a Presidency, an executive branch that was bound by the checks and balances. That is what our Constitution is about. It is about debate. Debate is important. Amendments are important. Bringing forward something from committee that would have reformed the PATRIOT Act is incredibly important, to have those debates on the floor of the Senate.

That is why there is a certain amount of disappointment to having arrived in Washington and to see the fear of debate of the Constitution, and that we need to be debating these things. We need to have full amendments.

Can there be any excuse why the inspector general should not be reviewing other agencies of government to find out if our rights are being trampled upon.

So I would ask, in conclusion, as these amendments come forward, that people think about it. Think about our constitutional protections. But do not go out and say the Senator from Kentucky does not want to capture terrorists or the Senator from Kentucky wants people to have guns and to attack us because the thing is, we can have reasonable philosophical debates about this, but we need to be having an open debate process. We need to talk about the constitutional protections, the provisions that protect us all, and we need to be aware of that.

I tell people: You cannot protect the second amendment if you do not believe in the fourth amendment. You cannot protect the second amendment if you do not believe in the first amendment. It is all incredibly important.

I hope as we go forward on this vote, and even though I will likely fail, because of the way the rules are set up on the vote, I hope as we go forward that at least somebody will begin to discuss this, somebody will begin to discuss where we should have some constitutional restraint; that Senator Leahy will have a chance to bring his bill forward, and that there will be a full and open debate.

I hope we have cracked the door open and I have been a small part of that.

I yield back my time.

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