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Public Statements

The Patriot Act and Defense Appropriations Act

Location: Washington, DC


Mr. KERRY. Mr. President, I listened carefully, as others have, to the distinguished Senator from Arizona. I guess we certainly all agree with his last statement about dealing with the evil of terrorism. We are all united in that effort, and all of us are pledged to do so according to the resolution we passed in the aftermath of 9/11, giving the President extraordinary power and authority to respond to those attacks. We are united in our efforts to deal with terrorism.

What we are not evidently as united on is our efforts to protect the Constitution of the United States of America, to protect the rights of individual Americans. On that there is a division between the House and the Senate.

I remind my colleague from Arizona, I think it was a couple of hours ago when he was talking about this subject, that he talked about how we don't want to see the PATRIOT Act further degraded; in other words, somehow implying that if we go back to what we passed in the Senate unanimously, we would somehow be degrading the PATRIOT Act. We were admonished not to ``hide behind the filibuster,'' that somehow people are hiding behind the filibuster which is the same thing as voting against the PATRIOT Act.

With all due respect, I never heard a more absurd or insulting argument to the rules of the Senate and to the nature of the Senate. In the 21 years I have been here, I have seen Jesse Helms and countless others stand up on the other side, in the minority or otherwise, and employ the rules of the Senate which allow the Senate to take a little bit longer to consider issues. That is always what has separated us from the House and, indeed, which has provided a measure of safety with respect to the legislation we pass for the country.

The fact is that what he has termed degrading the PATRIOT Act for many of us is protecting the PATRIOT Act, protecting the Constitution, protecting the country, protecting individual citizens. The fact is the Senate unanimously passed a PATRIOT Act that went over to the House with adequate, better protections for the citizens of our country.

Let me be more specific about that for a minute, if I may, and I didn't intend to speak about the PATRIOT Act. I intended to talk about this morass we find ourselves in with respect to the Defense appropriations bill and the Arctic National Wildlife Refuge, and I will talk about that in a minute. But I want to talk about the PATRIOT Act for a minute.

Every single one of us in the Senate joined together a few months ago--in July, I think, precisely--to unanimously allow the PATRIOT Act to be passed. We supported the PATRIOT Act, and we supported it because we know we need to give the President the tools to fight terror and it would be irresponsible not to do certain things in the current threat we face to respond appropriately. But we also have an obligation to protect the privacy rights of Americans.

Americans all across this country increasingly are concerned about medical records that find their way into the public sector, financial records that are lost, banking records that turn up in public, about the theft of identity, Social Security numbers that are stolen. The constant invasion on the privacy of Americans is something that ought to concern all of us, and there ought to be a balance as we fight terror.

Sure, we all want to take the maximum steps possible in order to prevent another act of terrorism. Who here in their right mind isn't going to do what is reasonable to prevent another 9/11? This is almost an absurd argument. It is the traditional sort of let's create a wedge, drive a big wedge between the American people and pretend to the American people the argument is about something that it isn't, pretend to the American people that everybody from this line in the United States over doesn't care about the security of our country and pretend that the only people who do are over there. It is ridiculous on its face. It is an insult to the American people.

We ought to be doing everything in our power to guarantee we don't engage in those kinds of silly arguments, particularly when we are stuck here 5 days before Christmas Eve struggling over reasonableness and then we have a whole bunch of unreasonably, classically political wedge-driving issues.

If the same PATRIOT bill was on the floor today that we sent off the floor, every Senator would vote for it. But it is not, and we are being told that somehow we have to rush to judgment and give away rights a lot of people here think are important and worth fighting for because the House insists they have a couple of provisions that were not in our bill.

Look at those provisions. The fact is the 215 section the Senator from Arizona was talking about--here is what it allows. It allows the Government to obtain library, medical, gun records, and other sensitive personal information on a mere showing that those records are relevant to an authorized intelligence investigation. That is it. That is all it requires.

In the Senate bill, we passed an additional test.

We said it has to be relevant, but in addition to being relevant we specifically put in the word ``and.'' It has to be relevant, and one of the three following things has to be shown: It has to pertain to a foreign power or agent of a foreign power, it has to be relevant to the activities of a suspected agent of a foreign power, or it has to be pertinent to a particular effort that is taken against a foreign power. Those are the three tests which we added to the relevancy test. We did that specifically because we thought we ought to protect the rights of Americans.

The fact is that requiring it to be pertaining to an individual who is in contact with a foreign government is a specific test that requires either to go further than mere relevancy. It requires the Government to have a cause that is legitimate to be able to go in and invade those kinds of rights.

Every Member of the Senate decided that was a worthy test and, unfortunately, that test was dropped. So that small change will actually allow the potential invasion of the privacy of American citizens who may have no connection at all to a suspected terrorist or spy. We think that is an important restriction. That is what we are fighting about. We are not fighting about not having a PATRIOT Act; we are fighting about having the rights of Americans protected.

In addition, unlike the Senate bill, the conference report provides absolutely no mechanism for the recipient of a 215 order. In other words, if someone has received a 215 order and it is sent to them notifying them with respect to the request for that information, there is no way for them to challenge an automatic gag order on that particular requirement.

So the Foreign Intelligence Surveillance Act's court review is not sufficient. We do not think it provides adequate protection to an American. The court only has the power to review the underlying order; that is, to say whether the order was appropriately issued. They do not have the right to review whether that person has a right to challenge it, a right to speak about it. They do not have the power to make an individualized determination about whether there ought to be a gag order with respect to it. So the recipient of a 215 order is automatically silenced under any circumstances. How is that fair? How is that consistent with American democratic principles?

The conference report also does not provide judicial review of national security letters. The Senate bill did provide a judicial review. We believe judicial review is important. So what we are fighting for is not whether to have a PATRIOT Act; what we are fighting over is whether to have a PATRIOT Act that keeps faith with the Constitution that we all swore to uphold and with our interpretation of the legitimate limits of intrusion on the rights of Americans. That is what we are fighting for.

I would also mention that there are sneak-and-peek search warrants in the conference report. Unlike the Senate bill, the conference report does not include any protections against those warrants. So rather than requiring the Government to notify the target of those warrants within 7 days, as the Senate bill did, the conference report requires notification within 30 days. Now, that is a long time to go--even 7 days is a long time to go, but 30 days is a really long time to go before one is notified of a Government search.

Those are just a few of the problems.

Let us repeat--because again it is part of the game that is played--it is not a good game. A lot of folks on the other side of the aisle are trying to suggest, Well, America, there are a bunch of folks who are strong on defense and people who are weak; there are a bunch of folks who want to protect the Constitution and those who do not.

Let me say something. This is not about that. If it were, we would have passed the 3-month extension of the PATRIOT Act right away. On several different occasions, Senator Reid has asked the Senate to proceed. We do not have to waste 1 day, not 1 hour, not 1 minute without a PATRIOT Act. We could extend the PATRIOT Act for 3 months right away, do it this afternoon, this evening, and then we could actually sit down and work out the differences in a reasonable way so that we provide the protections which people think are worth fighting for.

So this whole debate is just part of a larger breakdown in the Senate. The shame of what is happening with the Defense appropriations bill is that this entire debate is unnecessary, and it is also inappropriate. The fact is that the Arctic Wildlife Refuge drilling was put on the budget bill by breaking the budget rules. Everybody here knows that. The budget rules were changed so that drilling could be put on the bill because they were unable to muster enough votes to do it under the normal procedures of the Senate.

Then some courageous Republicans in the House stood up and said: This is wrong; we are not going to go along with this. All of a sudden, the first breaking-of-the-rules route was found to be unacceptable. So what is the response? To accept the rules of the Congress, to go along

with the will of the Congress? Oh, no, not that. We have to go find another way to break the rules. We have to go find another way to reinterpret it. So when the Parliamentarian rules that something is not legitimately within the scope of the bill, as the rules of the Senate say it ought to be, they are going to go ahead and try to vote and say: Oh, yes, it is, we overrule the Chair, change the rules. If one does not like the rules the way they are, they change them. How many kids in American schools are taught that is the way to play? How many families teach their kids in America that what one does is break the rules if they do not like them? How many institutions in this country would get along if that is the way it is played?

The example we set is bigger than what happens on this floor or what happens to Alaska and to the oil drilling. The fact is that what is happening is, make no mistake about it, right on the Senate floor, Republicans are putting oil companies ahead of troops. They are putting oil companies ahead of the Defense bill. They are trying to hold a whole bunch of Senators hostage to the very arguments we are hearing about whether one is for defense or against defense.

My colleague, Senator Lieberman, who earlier joined us at a press conference, made it very clear there is nobody with a stronger defense record in the Senate, but he is not going to stand up and be pushed around that way and be put in a corner that suggests that he does not stand for defense, and nor should any other Senator. This is wrong. It is wrong for the Senate. It is wrong for the country. It is the wrong example.

The fact is that this Defense bill could have been passed months ago.

But who held it up? Do my colleagues know what held it up? What held it up was a President and a Vice President of the United States who were lobbying for torture. For months, they wanted to have the right to be able to finesse the rules and say that torture is permitted under certain circumstances. It took a Republican Senator, Mr. McCain, to stand up and say that is wrong, that is not in the interest of our troops, and that is not in the interest of our country. So the Defense bill was held up for almost 3 months because folks on the other side thought we ought to torture. Now here we are holding it up because they have attached to it drilling in the Arctic Wildlife Refuge.

I will state what the Military Officers Association thinks of that: There is a possibility that negotiators might try to include a provision allowing oil drilling in the Alaska National Wildlife Refuge in the bill. We are concerned--that is, the Military Officers Association of America is concerned that insertion of any divisive nondefense-related issues at the last minute could further delay enactment of this crucial legislation. Both defense bills are urgently needed to support our military efforts. Congress is already 3 months late passing them and needs to get off the dime.

We do need to get off the dime, but it is not just the Military Officers Association that has weighed in. Yesterday, a group of five high-profile military officials sent the following letter to the Senate, which I ask unanimous consent to have printed in the RECORD.

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