Patriot Sunsets Extension Act of 2011

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Mr. WYDEN. Would my colleague yield for a question?

Mr. UDALL of Colorado. Yes.

Mr. WYDEN. It seems to me the Senator has laid out the case for why there needs to be a thoughtful debate about the PATRIOT Act and what is necessary to strike the key balance between fighting terrorism ferociously and protecting our liberties.

I am interested in what my colleague thinks about the proposition of how you have a thoughtful debate on these issues, when there is secret law where, in effect, the interpretation of the law, as it stands today, is kept secret. So here we are, Senators on the floor, and we have colleagues of both political parties wanting to participate. Certainly, if you are an American, you are in Oregon or Colorado, you are listening in, you want to be part of this discussion. But yet the executive branch keeps secret how they are interpreting the law.

What is the Senator's sense about how we have a thoughtful debate if that continues?

Mr. UDALL of Colorado. The Senator from Oregon has put his finger on why it is so important to have a debate on the floor and not rush these provisions to the House because of a deadline that I think we can push back. We can, as you know, extend the PATRIOT Act in its present form a number of other days or a number of weeks in order to get this right.

But the Senator from Oregon makes the powerful point that the law should not be classified--as far as its interpretation goes. Of course, we can protect sources and methods and operations, as we well should. Both of us serve on the Intelligence Committee. We are privy to some information that should be classified. But we have come to the floor to make this case because of what we have learned on the Intelligence Committee.

Mr. WYDEN. Well said.

Mr. UDALL of Colorado. I thank the Senator for his question. I look forward to his comments in a few minutes. The Senator from Oregon, in effect, points out that these

are just a few of the reform ideas we could debate. But without further debate on any of these issues, this or any other administration can abuse the PATRIOT Act and could actually deny us, as Members of Congress, whether in this Congress or future Congresses, the opportunity to fulfill our oversight responsibilities on behalf of the American people.

I voted against the original passage of the PATRIOT Act in 2001, and I plan to vote against the reauthorization of the expiring provisions this week, unless we implement some reforms that will sensibly restrain these overly broad provisions. Simply put--again, to make the point that the Senator from Oregon made so importantly--I believe Congress is granting powers to the executive branch that lead to abuse and, frankly, shield the executive branch from accountability.

It has been 10 years since we first passed this law, and there has been very little opportunity to improve the law. I resist this rush to again rubberstamp policies that threaten the very liberty we hold dear. I recently supported a short-term extensions of the expiring provisions before us as a bridge to take time and debate and amend the PATRIOT Act and its controversial provisions.

But we were notified--unfortunately, a few days ago--that we would be voting on a 4-year extension of these expiring provisions. That is not the way to assure Americans that we are diligently considering these important public decisions.

In Federalist 51, James Madison, whom we venerate, who was the author of many of the documents that structure the way in which we organize and operate our democracy, wrote: ``In

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framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.''

The bill before us does not live up to that standard. I believe it seriously risks the constitutional freedoms of our people. We need to strike a better balance between giving our national security and law enforcement officials the tools necessary to keep us safe, while not damaging the very Constitution we have sworn to support and defend.

By passing an unamended reauthorization, we are assuring that Americans will live with the status quo for 4 more long years. I believe this bill may well be a lost opportunity to improve the balance between our security and our civil liberties. That is not the result that our Founding Fathers envisioned, and it is not a result that our constituents want.

For these reasons, if the PATRIOT Act provisions are not amended, I plan to vote no on the motion to invoke cloture and on passage of S. 1038. Before I yield the floor, I wish to make one last historical reference.

Ben Franklin, one of our Founding Fathers, said, compellingly and presciently: ``A society that would sacrifice essential liberties for short-term security deserves neither.''

I think that is the question before us. There is a way forward. There is a way to keep the PATRIOT Act in place to protect our national security but also to protect our essential liberties. But in order to do that, we have to have a chance to debate and pass these important amendments.

I yield the floor.

The PRESIDING OFFICER. The Senator from Oregon.

Mr. WYDEN. Mr. President, before my colleague leaves the Chamber, I wished to tell him what a welcome addition he has been to the Intelligence Committee. I have served on that committee for 10 years. We have had excellent chairs--first, Senator Roberts, then Senator Rockefeller, Senator Feinstein.

So we continue to try to look for bipartisan support for trying to strike that balance between collective security and individual liberty. I am struck both by the clarity of your statement and the fact that those who are going to vote on these amendments and the American people who are listening in tonight ought to be able to get, in a straightforward, easy-to-access fashion, how the executive branch is currently interpreting the PATRIOT Act.

The fact is, law professors give assignments to their students to write analyses of the PATRIOT Act. The Congressional Research Service actually has an analysis out. But it is not possible to get the official interpretation of how the U.S. Government frames this law as far as the operations are so essential for our country. The Senator has laid it out very well. It is a pleasure to serve with him on the Intelligence Committee.

Mr. President, let me sum up with what this issue has come down to, to me.

These are dangerous times. If you go into the Intelligence Committee several times a week, as Senator Udall and I do, you come away with the indisputable judgment that there are threats to the well-being of this country, that there are people who do not wish our citizens well. In these dangerous times, the sources and methods of our antiterror operations absolutely must be kept secret. That is fundamental to the work of the intelligence community--keeping the sources and methods of those who serve us so gallantly secret and ensuring that they are as safe as possible.

But while we protect those sources and methods, the laws that authorize them should not be kept secret from the American people. That is what this is all about--whether the laws that authorize the operations that are so essential, which have been passed by the Congress--that their interpretation should be kept secret from the American people. I call it ``secret law.'' I want to say to this body, yes, we need secret operations, but secret law is bad for our democracy. It will undermine the confidence the American people have in our intelligence operations.

You might recall that it was only a few years ago, during the Bush administration, that they secretly reinterpreted the warrantless wiretapping statutes to say that it was possible to wiretap our people without a warrant. When it came out, it took years to sort that out, with the executive branch and the Congress working together. I don't want to see that happen again. So that is why I have joined Senator Udall in these amendments, and we hope we can get bipartisan support for what we are trying to do and especially ensure that the official interpretation of the PATRIOT Act, an important intelligent statute, is made public to the American people, and I think it can be done in a way without jeopardizing our sources and methods.

One of the reasons Senator Udall, I, and others feel so strongly about this is--and Senator Udall touched on this--that this is a time when Congress should finally say we are not just going to keep kicking the can down the road. That is what has been done again and again over the last decade. The PATRIOT Act was passed a decade ago, during a period of understandable fear, having suffered in our Nation the greatest terrorist attack in our history. So the PATRIOT Act was born out of those great fears.

It seems to me that now is the time to revisit that and ensure that a better job is done of striking the balance between fighting terror and protecting individual liberty. Unfortunately, every time over the last decade there has been an effort to do just that--revisit this and strike a better balance--we have had the same pattern; we have said we just have to get it done quickly and we really don't have any time to consider, for example, the thoughtful ideas Senator Udall has mentioned. I just don't think it is time now to once again put off a real debate on the PATRIOT Act for yet another always-distant day.

There is an irony about what this is all about, and that is that Senators are going to want to consider the amendments of Senator Udall--and I believe Senator Paul is here, and others who care strongly about this. It is awfully hard to have a thoughtful debate on these specific amendments, whether it is the Leahy amendment, the Paul amendment, the Udall amendment, or the ones we have together, if, in fact, you cannot figure out how the executive branch is interpreting the law.

An open and informed debate on the PATRIOT Act requires that we get beyond the fact that the executive branch relies on the secret legal interpretations to support their work, and Members of the Senate try to figure out what those interpretations are.

Here are the rules. If a U.S. Senator wants to go to the Intelligence Committee--and I think Senator Udall touched on this--the Senator can go there and get a briefing. Many Members of Congress, however, don't have staff members who are cleared for those kinds of briefings. Under Senate rules, it is not possible for Senators to come down here and discuss what they may have picked up in one of those classified briefings.

I just don't think, with respect to the legal interpretation, that is what the American people believe we ought to be doing. The American people want secret operations protected. They understand what sources and methods are all about and that we have to have secrecy, for example, for those in the intelligence community to get the information we need about sleeper cells and terrorist groups and threats we learn about in the Intelligence Committee. But that is very different from keeping these legal interpretations secret.

In my view, the current situation is simply unacceptable. The American people recognize that their government can better protect national security if it sometimes is allowed to operate in secrecy. They certainly don't expect the executive branch to publish every detail about how intelligence is collected. Certainly, Americans never expected George Washington to tell them about his plans for observing troop movement at Yorktown. But Americans have always expected their government to operate within the boundaries of publicly understood law. As voters, they certainly have a right to know how the law is being interpreted so that the American people can ratify or reject decisions made on their behalf. To put it another way, Americans know their government will sometimes conduct secret operations, but they

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don't believe the government ought to be writing secret law.

The reason we have felt so strongly about this issue of secret law is that it violates the trust Americans place in their government and it undermines public confidence in government agencies and institutions, making it harder to operate effectively. I was on the Intelligence Committee, before Senator Udall joined us, when Americans were pretty much stunned to learn the Bush administration had been secretly claiming for years that warrantless wiretapping was legal. My own view was that disclosure significantly undermined the public trust in the Department of Justice and our national intelligence agencies. Our phones were ringing off the hook for days when the American people learned about it. The Congress and executive branch had to retrench and figure out how to sort it out.

I certainly believe the public will be surprised again when they learn about some of the interpretations of the PATRIOT Act. Government officials cannot hope to indefinitely prevent the American people from learning the truth. This is going to come out, colleagues. It is going to come out at some point, just as it came out during the Bush administration about warrantless wiretapping. It is going to come out. It is not going to be helpful to the kind of dialog we want to have with the American people, an open and honest dialog, to just continue this practice of secret law.

The reason I am offering or seeking to offer this amendment with Senator Udall, Senator Merkley, and other colleagues with respect to changing the practice of secret law is that we have raised this issue numerous times--on the Senate floor, in correspondence, in meetings with senior administration officials--and I have been joined in the past by other Senators, and we talked about it with respect to the problem in the news media. But the problem persists and the gap between the public's understanding of the PATRIOT Act and the government's secret interpretation of it remains today. Once information has been labeled ``secret,'' there is a strong bureaucratic tendency--it almost gets in the bureaucratic chromosomes to keep it secret and not revisit the original decision.

So what Senator Udall and I and colleagues seek to do is correct this problem. We seek to offer an amendment that states that it is entirely appropriate for particular intelligence collection techniques to be kept secret but that the laws that authorize these techniques should not be kept secret and should instead be transparent to the public. We seek to offer an amendment that states that U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public's understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public.

So under this proposal, the Attorney General and Director of National Intelligence would--and we note this--provide a classified report to the congressional intelligence committees. It makes it clear that intelligence collection continues to go forward, and our amendment would simply require the Attorney General to publicly lay out the legal basis for the intelligence activities described in the report. The amendment specifically directs the Attorney General not to describe specific collection, programs, or activities, but simply to fully describe the legal interpretations and analyses necessary to understand the government's official interpretation of the law.

Let me close--I see colleagues waiting to speak--and say that we can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used, but I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means. All that Senator Udall and I seek to do, along with other colleagues, is to restore some of that openness and honesty in an area where it is now needed. I hope colleagues on the floor of the Senate and in the Obama administration will join in that effort.

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