USA Patriot Act

USA PATRIOT ACT

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Mr. DURBIN. Is the Senator from Nevada aware of the fact that the President said today, at his press conference:

In a war on terror, we cannot afford to be without this law [the PATRIOT Act] for a single moment.

I ask the Senator from Nevada: Did the Senator from Nevada not ask unanimous consent to extend the PATRIOT Act as written for 3 months, and is it not true that when you made that request a few days ago, the Republican leader of the Senate objected to extending the PATRIOT Act for 3 months, after the revision of the law was held up here on the Senate floor?

Mr. REID. Mr. President, I asked unanimous consent that a bipartisan piece of legislation extending this bill for 3 months be made operative. It was objected to by the Republican leader.

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

Mr. REID. Yes.

Mr. DURBIN. I want to make the record clear. I was with the Democratic leader when he made the statement about the PATRIOT Act. I took it to mean that we defeated cloture on the conference report on the PATRIOT Act. That was the way I understood it. It has been twisted a little bit by some who want to read more into it. But it is accurate, I believe, to say that.

I will just ask the Senator from Nevada, at least once informally with Senator Frist, and now four different times on the floor of the Senate, we have tried to extend the PATRIOT Act for 3 additional months while we work out our differences--an extension which would not change the PATRIOT Act in any way whatsoever--so that for 90 days, at least, it could continue to be used and enforced without question. Now we have had the Senator from Arizona, Mr. Kyl, object to extending the PATRIOT Act for 90 days.

One could reach the conclusion that the Senator from Arizona opposes the PATRIOT Act as currently written if he opposes extending it for 90 days, I might say. I am happy to allow the Senator to reply. If the Senator from Arizona supports the PATRIOT Act as currently written, why would the Senator object to extending the PATRIOT Act for 90 days?

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Mr. DURBIN. I would like to ask the Senator from Arizona if he would consider two questions. The first question is this: Is it not true that the position we are arguing in the PATRIOT Act is the same position that the Senator from Arizona voted for in the Judiciary Committee and at least did not object to on the floor of the Senate? So to suggest it is a radical position--I would like to ask the Senator, has he changed his view on that?

Mr. KYL. Let me answer that question, and I will be happy to yield again.

I don't believe the Senator heard me use the words ``radical position.'' I have not contended anything is a radical position. What I have said is it would not work. We do want something that will work to protect the American people.

Mr. DURBIN. If the Senator will yield, I believe it worked when I voted for it in the Judiciary Committee, as the Senator did, and agreed to in passing it unanimously on the floor. I think it still will work.

The second question I ask the Senator is this: Here is the choice we have. The PATRIOT Act can expire on December 31 of this year or it can be extended at least 90 days by a request being made on the floor. Does the Senator from Arizona think it is better for the PATRIOT Act to expire December 31 than to extend it 90 days?

Mr. KYL. Mr. President, let me answer the question this way: Since it is not at all clear, given the holidays and the fact the Senate is only in session at the very end of January, that we could resolve heretofore unresolvable issues in 90 days, how about a 1-year extension? That way, we would make sure the PATRIOT Act did not expire, we would have it in force, and whatever time it took for us to try to reach agreement, there would at least not be uncertainty; we would know what the law was. If we were able to reach agreement in the meantime, then, of course, we could pass the bill and whatever changes that would be made were made. Let me answer the question that way and perhaps not pose a specific unanimous consent request but see what the response of the Senator from Illinois would be were I to do that.

Mr. DURBIN. I say through the Chair--and I am not sure of the exact parliamentary form we are using here--in a question to the Senator from Arizona, based on his experience working in both the House and Senate, is it not more likely that when you say 1 year, it will be 11 months, 3 weeks, and 6 days before we consider this seriously again? Has it not been his experience--it has been mine--that in this legislative body, if one says 90 days, it is more likely people will get serious within a few weeks and start talking about real change? Perhaps the Senator's experience is different from mine. Giving it a year means putting off the inevitable. Let's get this resolved and move forward.

Mr. KYL. The Senator from Illinois certainly makes the point that when you have a longer deadline, work tends to be put off. I make this point: The distinguished chairman of the Judiciary Committee is here. We have been working for the better part of a year on this reauthorization of the PATRIOT Act. The chairman can tell us when the Judiciary Committee took it up. There were a lot of sessions before that. For many months now, this issue of reauthorization has been well known to all of us. We have known what the deadline was, and we worked on it and worked on it hard.

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Mr. DURBIN. Mr. President, I am glad we are having this conversation. I think it shows that there is some room for dialogue and, I hope, for progress to be made on this issue. I think it is unfortunate some of these statements made earlier today by the President suggesting that those who did not share his point of view on this issue were somehow not as sensitive to the threat of terrorism. I can assure the President and all listening to this debate there is sensitivity to that threat of terrorism on both sides of the aisle by people who were on both sides of that cloture vote on the PATRIOT Act.

What is at issue are some fundamental questions about our constitutional rights, our freedoms, and liberties in America. Each of us, when we assume the responsibility of Senator, swears to uphold the Constitution. There are so many important elements within that Constitution, but one might argue that the Bill of Rights is the most important because it is a guarantee of our individual rights and freedoms. So when we initially enacted the PATRIOT Act in the fear that was gripping this country after 9/11, there was a concern that perhaps we had gone too far; perhaps we had given the Government more authority over our privacy, more authority over our freedom, than was necessary.

In the bipartisan wisdom of those who wrote the act, we promised that 4 years afterwards we would revisit it and see if, in fact, it needed to be changed in any respect. That is what this debate is all about.

There may be some today who argue we should do away with the PATRIOT Act, but I cannot say who they might be. The only Senator who voted against it is supporting the reform that passed the Senate Judiciary Committee, so it is clear that he was prepared to vote for a PATRIOT Act with some modifications.

The Senator from Idaho, Mr. Craig, and I have been the lead cosponsors of the SAFE Act which, as he accurately described, was an attempt to modify the PATRIOT Act, not to abolish it, but to modify it, in certain respects, so as to protect our basic freedoms and liberties. We were happy at the end of the debate in the Senate when the bill came forward in the Judiciary Committee on a unanimous, bipartisan vote, which I hasten to add is a rare thing in the Judiciary Committee, if not the Senate. A unanimous, bipartisan vote on this measure brought it to the floor where it was enacted by a voice vote since there was no objection to it on the Senate floor. That is an amazing testimony to the fine work of the Senator from Pennsylvania as chairman of the committee and all the Members who compromised to reach that point.

It is worth noting for the record when that occurred. It occurred in July. It was in July that we finished our work on this and sent it over to the House of Representatives, understanding we were backing up against the deadline of December 31. It was not until November 9 of this year that the House appointed their conferees. They waited 3 months or more before they appointed conferees and sat down to seriously debate this issue. Then a few weeks later, even with Thanksgiving intervening, they produced this conference report. So if it is a matter of timing, it does not take that long to try to work out differences.

That is why those of us who are proposing a 3-month extension believe it is entirely appropriate and possible that we would reach an agreement in that short period of time.

I would like to spend a moment reflecting on the substance of this debate. We have talked about the Senate procedure and timing and what words were spoken by Members and what they meant, but it is important to get down to the substance of the issue to understand that what we are talking about are some fairly fundamental issues.

The first is the question of Section 215. That is a section that will allow the Government to obtain medical records, financial records, library records and other sensitive personal information simply by showing, under the current PATRIOT Act, that the information might be relevant to an authorized investigation. That is as low a standard as I can imagine, and it basically means that the Government, without proof of any wrongdoing on the part of any individual or group of individuals, could secure a great deal of private personal information and cull through it simply by saying it may be relevant to an authorized investigation.

When we passed the Senate bill reauthorizing the PATRIOT Act, we said that it really should be a higher standard, not an impossible standard but a higher standard; that the person whose records are being sought has at least some connection to the kind of conduct we are trying to guard against. That is not a huge leap in terms of our legal standard in America. It is consistent with what we call due process.

The second concern with Section 215 is an equally important one. Assume that one is the custodian administrator of records, either at a business or at a hospital, and they receive a notice under section 215 of the PATRIOT Act, the Federal Government wants all of their records in their hospital on hundreds, if not thousands, of patients, and they believe that is an unwarranted intrusion into the privacy of their clients; what can one do if they believe the Government has gone too far?

Currently, under the PATRIOT Act, they are precluded from even arguing their case in court, arguing that the Government has gone too far. And section 215 has an automatic permanent gag that prevents any person from speaking out, even if he believes his rights have been violated. In my mind, that is a fundamental attack on a very basic freedom in America.

So when we wrote the revision of the PATRIOT Act in the Senate, which all o the Senators voted for, Democrats and Republicans, we said we would give a person the right to go to court and to ask that this gag order be lifted so that they could argue the merits of the Government's activities. Those are two critical issues when it comes to the rights of the freedoms of Americans.

To argue that they are inconsequential, that they are not worthy of fight, is to ignore our basic responsibility. Many of us who are arguing to extend the PATRIOT Act also want to include in it some very fundamental protections of the rights of Americans. That is what this debate is about.

It is not about who can get the upper hand on the political debate on a day-to-day basis. I think most Americans are weary of that. I am. What we are trying to do is extend the PATRIOT Act for 90 days past December 31 and work out these differences, significant differences but differences we can address and address successfully.

It is interesting to note that this debate about the PATRIOT Act, which is going on on the floor of the Senate and in the President's press conference, is occurring at a moment in time which is freighted with significance in terms of the activities of this Government in relation to the privacy and the personal rights of its citizens.

It was disclosed in the New York Times and Washington Post and other major papers last week that for several years now our Government has been eavesdropping on American citizens through the National Security Agency. This, to me, is a dramatic departure from the basic rules and process we followed for over 30 years in America, where we have said that if you want to listen in on the conversation of my neighbor or someone in my family, you need to have a legal right to do so and that legal right will be established by going to court to establish why it is necessary for you to listen in on that conversation; to establish, for example, probable cause that a crime has been committed or probable cause or evidence that someone has engaged in unlawful activities. That is the American standard. It appears now, from what the President has said, that this administration for several years has rejected that standard. The President has assumed the power to eavesdrop on the conversations of innocent Americans on the possibility that they will come up with some evidence of wrongdoing. This is not only illegal, it borders if not crosses the border into a violation of criminal law. It is extremely significant.

In this holiday season with all the other things we are thinking about personally, with the rush of Congress to adjourn and go home and be with our families, I don't know if we are reflecting on the significance of what we have learned in the last several days. To think that any President of the United States believes he has the power as Commander in Chief to basically avoid, ignore, or violate the laws of the land is a significant charge.

I am encouraged that Senator Specter, the chairman of the Senate Judiciary Committee, a member of the President's own party, from Pennsylvania, has promised us a thorough investigation when we return in January as to what has been occurring in terms of the National Security Agency and this eavesdropping. But I raise this because our entire discussion of the PATRIOT Act is in the context of this consideration: Simply stated, have we gone too far in violating the basic rights and liberties and freedoms of Americans in our pursuit for security and safety? Can we strike a balance and be safe as a nation without endangering our basic freedoms and liberties? I think this question of eavesdropping on hundreds if not thousands of innocent Americans raises that question foursquare. But I also believe the extension of the PATRIOT Act does as well.

When the Democratic leader of the Senate comes before the body twice today, as he did last week, and asks for an extension of time so the PATRIOT Act will still be in force, can still be used for 90 days while we work out these significant questions, it is a good-faith offer. For his critics--whether in the executive branch or legislative branch--to suggest that he wants to do away with the PATRIOT Act or he is insensitive to the terrorist threat is not a fair characterization of his position nor the position of many of us. We believe the PATRIOT Act is important, but we believe some modifications will make it an act that is more consistent with our constitutional rights.

I hope the Republican leadership in the Senate will reconsider their position. I hope they will allow us to extend the PATRIOT Act for 90 days. We can go home for the holidays and return in January, which the Senate Judiciary Committee is going to do, anyway, and get down to business, rolling up our sleeves to work out this conference committee. Let's make sure the PATRIOT Act is not only reenacted but in a fashion that is consistent with our basic freedoms.

Mr. NELSON of Florida. Will the Senator yield for a question?

Mr. DURBIN. I am happy to yield for a question.

Mr. NELSON of Florida. I want to again commend the Senator for reminding the Senate of the substance of the issue. The substance of the issue is that Americans are quite concerned they are going to lose their civil liberties. They certainly want the Government of the United States to in fact prosecute the war against terrorists, but they don't want our society, because of our protection of civil liberties, to change into some other kind of society. Would the Senator agree that is the substantial majority opinion in this country, to protect our civil liberties?

Mr. DURBIN. It certainly is in my State of Illinois and I suspect nationwide. It is interesting to me, the passions that many of our colleagues bring to the fight of protecting a person's money--which is an important part of our job--but when it comes to protecting our freedoms, I don't see the same level of passionate commitment. I hope we will see that change during the course of this debate. But I think Americans value their freedoms very much.

I always recall, as a practicing attorney, how many people would be dismissive of criminal procedures to protect defendants until it was their teenage son or daughter who was arrested and then they came to their attorney and said, What can we do? What does the law provide to protect us?

I think we should all be sensitive to that fact.

Mr. President, I yield the floor.

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