Statement of U.S. Senator Russ Feingold
as prepared for delivery from the Senate floor,
February 16, 2006
Mr. President, the upcoming cloture vote on the motion to proceed to S. 2271, introduced by my friend Senator Sununu, is the first opportunity for my colleagues to go on record on whether they will accept the White House deal on Patriot Act reauthorization. Back in December, 46 Senators voted against cloture on the conference report. I think it’s clear by now that the deal makes only minor changes to that conference report. The Senator from Pennsylvania, Chairman of the Judiciary Committee and primary proponent of the conference report in this body, was quoted yesterday as saying that the changes that the White House agreed to were “cosmetic.” And then he said, according to the AP, “But sometimes cosmetics will make a beauty out of a beast and provide enough cover for senators to change their vote.”
The Senator from Alabama said on the floor yesterday: “They’re not large changes, but it made the Senators happy and they feel comfortable voting for the bill today.” I agree with both of my adversaries on this bill that the changes were minor and cosmetic. I explained that at length yesterday, and no one else other than Senator Sununu came down to the floor to defend the deal.
Some of my colleagues have been arguing, however, that we should go along with this deal because the conference report, as amended by the Sununu bill, improves the Patriot Act that we passed four and a half years ago.
It’s hard for me to understand how Senators who blocked the conference report in December can now say that it’s such a great deal. It’s not a great deal – the conference report is just as flawed as it was two months ago. No amount of cosmetics is going to make this beast look any prettier.
That said, let me walk through some of the provisions of the conference report that are being touted as improvements to the original Patriot Act.
First, there’s the issue that was the lynchpin of the bill the Senate passed without objection in July of last year: the standard for obtaining business records under Section 215. Section 215 gives the government extremely broad powers to secretly obtain people’s business records. The Senate bill would have required that the government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to Section 215, at least around the edges. It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the government can seek to obtain particularly sensitive records like library, gun and medical records. But the core issue with Section 215 is the standard for obtaining these records in the first place.
Neither the minimization procedures nor the high level signoff changes the fact that the government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report – “relevance” -- will still allow government fishing expeditions. That is unacceptable. And the Sununu bill does not change that.
Next, let me turn to judicial review of these Section 215 orders. After all, if we’re going to give the government such intrusive powers, we should at least people go to a judge to challenge the order. The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process. And the Sununu bill does not address this problem.
So, what we have are very intrusive powers, very limited judicial review – and then, on top of it, anyone who gets a Section 215 order can’t even talk about it. That’s right – they come complete with an automatic, indefinite gag order. The new “deal” supposedly allows judicial review of these gag orders, but that’s just more cosmetics. As I explained yesterday, the deal that was struck does not permit meaningful judicial review of these gag orders. No judicial review is available for the first year after the 215 order has been issued. Even when the right to judicial review does finally kick in, the challenger has to prove that the government acted in bad faith. That is a virtually impossible standard to meet.
The last point on Section 215 is that the conference report, as amended by the Sununu bill, now explicitly permits recipients of these orders to consult with attorneys, and without having to inform the FBI that they have done so. It does the same thing with respect to National Security Letters. This is an important clarification, but keep in mind that the Justice Department had already argued in litigation that the provision in the NSL statute actually did permit recipients to consult with lawyers. So this isn’t much of a victory at all. Making sure that recipients don’t have to tell the FBI if they consult a lawyer is an improvement, but it is a minor one.
Next let’s turn to National Security Letters, or NSLs. These are the letters that the FBI can issue to obtain certain types of business records, with no prior court approval at all. The conference report does provide for judicial review of NSLs, but it also gives the government the explicit right to enforce NSLs and hold people in contempt for failing to comply, which was not previously laid out in the statute. And, in stark contrast to the Senate bill, the conference report also would require that judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. Just like with the Section 215 judicial review provisions, this will make it very difficult for challengers to be successful. And the Sununu bill does not address this problem.
Of course, NSLs come with gag orders, too. The conference report addresses judicial review of these gag orders but it has the same flaw as the Sununu bill does with regard to judicial review of the Section 215 gag rule. In order to prevail, you have to prove that the government acted in bad faith, which will be virtually impossible. And the Sununu bill does not modify these provisions at all.
Let me make just one last point on NSLs. The Sununu bill contains a provision that states that libraries cannot receive an NSL for Internet records unless the libraries provide “electronic communications services” as defined by statute. But that NSL statute already applies only to entities that satisfy that definition, so this provision essentially restates existing law. It is no improvement at all. Those cosmetics start to wear pretty thin once you look closely at this deal.
Let’s turn next to sneak and peek search warrants. As I laid out in detail yesterday, the conference report takes a significant step back from the Senate bill by presumptively allowing the government to wait an entire month to either notify someone that agents secretly searched their home, or get approval from a judge to delay the notification even longer. The Senate bill said the presumption should be one week, and I have yet to hear any argument, much less a persuasive argument, why that amount of time is insufficient. Core Fourth Amendments protections are at stake here. And once again, the Sununu bill does nothing to address this issue.
Now let me talk briefly about roving intelligence wiretaps under Section 206 of the Patriot Act. We haven’t discussed this issue much, in part because the conference report does partially address the concerns that had been raised about this provision. But the conference report language is still not as good as the Senate bill was on this issue. Unlike the Senate bill, the conference report does not require that a roving wiretap include sufficient information to describe the specific person to be wiretapped with particularity. The Sununu bill does not address this problem.
Supporters of the conference report say that it contains new four-year sunsets for three provisions: Section 206, Section 215 and the “lone wolf” expansion of the Foreign Intelligence Surveillance Act that passed as part of the Intelligence Reform bill in 2004. But sunsets are not enough. This reauthorization process is our opportunity to fix the problems with the Patriot Act. Just sunsetting bad law – again -- is hardly an improvement. And of course, neither the conference report nor the Sununu bill contains a sunset for the highly controversial National Security Letter authorities that were expanded by the Patriot Act, even though many of us said back in December that was an important change we wanted to see made.
I have the same response to those who point to the valuable new reporting provisions in the conference report. We must make substantive changes to the law, not just improve oversight.
I have laid out at length the many substantive reasons to oppose the deal. But there’s an additional reason to oppose cloture on the motion to proceed, and that’s because it appears the Majority Leader is planning to prevent Senators from offering and getting votes on amendments to the bill. I was on the floor for nine hours yesterday. I wasn’t asking for much – just a guarantee that I could offer and get votes on a handful of amendments relevant to the bill. There was a time when Senators didn’t have to camp out on the floor to plead for the opportunity to offer amendments. In fact, offering, debating and voting on amendments is what the Senate is supposed to be all about – that’s how we craft legislation. But my offer was rejected, and it appears the other side may try to ram this deal through without a real amending process.
I hope that even colleagues who may support the deal will oppose such a sham process. It makes no sense to agree to go forward without a guarantee that we will be allowed to actually try to improve the bill. And it is a discourtesy to all Senators, not just me, to try to ram through controversial legislation without the chance to improve it.
In sum, Mr. President, I oppose the sham legislative process that the Senate is facing here. And I oppose the flawed deal we are being asked to ratify. Notwithstanding the improvements achieved in the conference report, we still have not adequately addressed some of the most significant problems with the Patriot Act. So I must oppose proceeding to this bill, which will allow the deal to go forward. I cannot understand how anyone who opposed the conference report back in December can justify supporting it now. This deal was a beast two months ago and it hasn’t gotten any better-looking since then. I urge my colleagues to vote No on cloture.