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USA Patriot and Terrorism Prevention Reauthorization Act of 2005--Conference Report--Continued

Location: Washington, DC



Mr. KERRY. Mr. President, today I voted against cloture on the PATRIOT Act reauthorization conference report. I want to make clear that this vote was not about whether I support reauthorizing the PATRIOT Act--I do. This vote was about whether I thought that the significant and unnecessary invasions into the privacy rights of all Americans were necessary to protect our national security--I do not.

Last July, the Senate passed by unanimous consent a PATRIOT Act reauthorization bill. I supported that bipartisan, compromise bill. Even though it did not contain all the privacy protections I would have liked, it took a lot of steps towards improving the problems in the PATRIOT Act that have become evidence since its passage. If that bill was on the floor today, I would support it.

But it is not. What we do have on the floor is a conference report that fails to address some of the most serious problems with the PATRIOT Act. For example, its version of Section 215 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. Relevance is all that is required. The Senate bill, on the other hand would have established a three part test to determine whether the records have some connection to a suspected terrorist or spy. This seemingly small change will help prevent investigations which invade the privacy of American citizens that may have no connection to any suspected terrorist or spy. This is an important restriction.

In addition, unlike the Senate bill the conference report provides no mechanism for the recipient of a Section 215 order to challenge the accompanying automatic, permanent gag order. The FISA, Foreign Intelliegence Surveillance Act, court reviews are simply not sufficient. They have the power only to review the Government application for the underlying Section 215 order. They do not have the power to make an individualized determination about whether a gag order should accompany it. So the recipient of a Section 215 order is automatically silenced forever. How is that fair? How is that consistent with our democratic principles?

The conference report doesn't provide judicial review of National Security Letters either. The Senate bill did. Judicial review is one of our best checks on unnecessary Government intrusion into individual privacy. Why deny it to our citizens?

Lastly, I would like to mention the problem with the conference reports provisions on the so-called sneak-and-peek search warrants. Unlike the Senate bill, the conference report does not include any protections against these warrants. Rather than requiring that the government notify the target of these warrants within 7 days, as the Senate bill did, the conference report requires notification within 30 days of the search. Thirty days. That is an awfully long time to go before learning that you have been the subject of a Government search.

These are just a few of the problems with the conference report. They are the most significant problems. Those in support know that it is flawed, but they are creating artificial time pressure to force us to approve the bill, flawed as it may be.

I realize that 16 provisions of the PATRIOT Act are set to expire. I certainly do not want that to happen. But passing this conference report is not the only way to prevent their expiration. That is why I have cosponsored legislation to extend those provisions by three months to allow us time to fix the problems with the conference report. If that effort fails and the PATRIOT Act expires, the blame rests only with the White House and leadership that controls the House and the Senate. There was and remains a simple, unified way to get this done, and they rejected it.

There is no reason why we cannot be safe and free. The Senate bill accomplished this. And, I will keep working with my colleagues in the Senate to ensure that whatever legislation we ultimately pass to reauthorize the PATRIOT Act also accomplishes this.

Mr. REED. Mr. President, today the Senate was presented with a false choice on the conference report to H.R. 3199, the USA PATRIOT Act. That is why I voted against the motion to invoke cloture. There is a better way that gives us the time we need to thoughtfully debate some very weighty constitutional and civil liberty issues. With 90 percent of the PATRIOT Act already permanently authorized, we can and should extend the provisions expiring on December 31, 2005, for 3 months.

Let me be clear, those of us advocating for a 3-month extension support reauthorizing the PATRIOT Act. What we want to do is keep the law intact, exactly as it is right now, so that we can more carefully debate these important matters without feeling rushed by the impending adjournment of this session of Congress.

Like almost everyone in this Chamber, I voted for the PATRIOT Act shortly after the September 11 terrorist attacks. I believed the PATRIOT Act would bolster the ability of Federal authorities to conduct criminal and intelligence investigations, to bar and expel foreign terrorists from the United States, to separate terrorists from their sources of financial support, to punish acts of terrorism, and to assist victims of the events of September 11. While I had reservations about some parts of this legislation, the need to address the obvious threat, combined with the fact that many of the more untested provisions in the act were set to expire on December 31, 2005, prompted me to vote for the bill.

The provision of greater investigative authority to our Nation's law enforcement officials is a matter that raises many issues, most particularly, the need to balance Government power and civil liberties. Certainly, there is a great onus upon the Department of Justice, DOJ, to utilize the awesome authority of the PATRIOT Act in a circumspect and cautious manner. At the same time, Congress has a responsibility to conduct vigorous oversight on the use of the PATRIOT Act's powers and to carefully debate any changes to these powers.

In the spring, in anticipation of the impending need to reauthorize the sunsetting provisions of the PATRIOT Act, I cosponsored S. 737, the Security and Freedom Enhancement, SAFE, Act of 2005. This thoughtful, bipartisan legislation was introduced by Senator Craig on April 6, 2005, and seeks to revise and improve--not eliminate--several of the more controversial provisions of the PATRIOT Act, including roving wiretaps, sneak-and-peek searches, and FISA orders for library and other personal records.

Many of the proposed revisions to the PATRIOT Act in S.737 were ultimately incorporated in some form into S. 1389, the Senate version of the PATRIOT Act reauthorization. S. 1389, the USA PATRIOT Act Terrorism Prevention Reauthorization Act, passed by unanimous consent in July and the Senate immediately appointed conferees so that the House and the Senate could begin discussing their very different visions of the reauthorization. Unfortunately, the House waited until November to appoint its conferees, which in large part is why we are now in the position of having very little time to debate and resolve the differences between the two bills.

The Senate's version of the PATRIOT Act attempted to deal with many of the civil liberties issues that have come to the fore since the passage of the PATRIOT Act. In particular, S. 1389 would require that the Department of Justice convince a judge that a person is connected to terrorism or espionage before obtaining their library records, medical records, or other sensitive information. It would require that targets of sneak-and-peek searches are notified within 7 days, instead of the undefined delay that is currently permitted under the PATRIOT Act. The Senate bill also would prohibit the issuance of ``John Doe'' roving wiretaps, which identify neither the person nor the place to be put under surveillance.

Additionally, S. 1389 would give the recipient of an order for sensitive personal information the right to challenge the order in court on the same grounds they could challenge a grand jury subpoena, as well as provide a right to challenge the gag order that currently prevents people who receive a request for records from speaking out even if they feel the Government is violating their rights. The legislation also requires increased reporting by the DOJ on its use of PATRIOT Act powers and sets a 4-year sunset on three provisions regarding roving wiretaps, business record orders, and ``lone wolf'' surveillance.

Unlike the Senate bill, the House version proposed to permanently reauthorize all but two of the expiring provisions--instead it sunsets FISA orders for library and other personal records and the roving wiretap provision after 10 years--and placed few, if any, limits on many of the expanded law enforcement powers in the PATRIOT Act.

Unfortunately, the conference report has removed or weakened some of the most important limits on enhanced investigative powers in the Senate bill, particularly those relating to FISA orders for library, medical, and other types of business records about people, National Security Letters, and notification of sneak-and-peek searches. We need to reauthorize the expiring provisions of the PATRIOT Act, but we need to do so with procedural safeguards like those in the Senate bill.

The Senate is known as the more contemplative body in Congress for a reason, and I think we should take the time we need to truly debate and discuss some important civil liberties issues that the conference report implicates. For this reason, I have cosponsored Senator Sununu's bill, S. 2082, which would extend the expiring provisions of the PATRIOT Act until March 31, 2006. I believe that 3 months is enough time for us to come back after the holidays and work out the differences between the House and Senate versions of the PATRIOT Act reauthorization. I would encourage all of my colleagues to do the same.

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