Washington, D.C. -Today, Senate Democratic Leader Harry Reid delivered the following remarks regarding the Reauthorization of the Patriot Act on the U.S. Senate floor.
Remarks as prepared:
“I will vote against the motion to invoke cloture on the PATRIOT Act conference report. Rather than cut off debate on this flawed bill, we should work harder to achieve a strong, bipartisan PATRIOT Act that strengthens national security while protecting the privacy of innocent Americans.
“Earlier this year, after negotiations that went late into the night, the Senate Judiciary Committee unanimously approved a bill to reauthorize and improve the PATRIOT Act. Soon after, the full Senate passed this bill by unanimous consent. Every Senator – Democrat and Republican – approved this reauthorization of the PATRIOT Act. Every one of us is firmly on record in support of giving law enforcement the appropriate tools to fight terrorism.
“Unfortunately, the spirit of bipartisanship that led to passage of the Senate bill did not prevail in conference. Not long after the House appointed conferees, Democratic negotiators were shut out of the discussions. The final bill was written by Republican conferees working behind closed doors with Justice Department lawyers. The result was an imbalanced conference report that departed significantly from the bipartisan Senate bill.
“Chairman Specter, to his great credit, joined other conferees in refusing to sign that conference report. Over the next few weeks, he worked hard to improve it and succeeded in eliminating some of the worst provisions. I appreciate the good-faith efforts of the Chairman and the hard work of the Democratic conferees to improve this conference report.
“But in my view, and in the view of many of my colleagues on both sides of the aisle, the conference report still does not contain enough checks on the expanded powers granted to the government by the PATRIOT Act. It is still not acceptable.
“I supported passage of the original PATRIOT Act in 2001, which was enacted in the days immediately following the vicious attacks of September 11, 2001. I do not regret that vote. Much of the original Act consisted of non-controversial efforts to update and strengthen basic law enforcement authorities. More than 90 percent of the 2001 Act is already part of permanent law and will not expire at the end of this year.
“But we are currently considering renewal of those provisions that were considered so expansive and so vulnerable to abuse that Congress wisely decided to subject them to four-year sunsets. The authors of the Act wanted Congress to reassess these authorities in a more deliberative manner with the benefit of experience. Now, more than four years later, we are presented with an opportunity to get it right.
“While the conference report before us makes certain improvements over the original PATRIOT Act, it still does not strike the right balance. We can provide the government with the powers it needs to investigate potential terrorists and terrorist activity and at the same time protect the freedom of innocent Americans. Liberty and security are not contradictory.
“Additional congressional and judicial oversight of the government’s surveillance and investigative authorities need not hamper the government’s ability to fight terrorism. These checks are needed to ensure that the government does not overreach or violate the privacy of ordinary American citizens who have nothing to do with terrorism.
“I am convinced of the need for such checks based in part on information I learned from a Washington Post story that ran in early November, after the Senate had passed its bill. The story reported that the FBI issues more than 30,000 national security letters a year. Chairman Specter says that number is not accurate, but even if half as many letters are issued each year, Congress must act to ensure appropriate protections.
“These national security letters are issued by FBI agents without any judicial supervision. The third-party recipients of these orders – such as banks, phone companies, and internet service providers – are prohibited from telling anyone that they have been served. The customers whose records are seized will never know that the FBI has gathered their personal information.
“The article described an incident at the end of 2003, in which the Department of Homeland Security compiled information on hundreds of thousands of New Year’s visitors to Las Vegas in my state of Nevada. They obtained the records of everyone who had rented a hotel room, car, or storage unit, and every airplane passenger who landed in the city.
“When Las Vegas businesses objected to this effort to gather unprecedented amounts of information on their customers, the FBI responded by serving them with national security letters. According to one law enforcement source quoted in the piece, agents encouraged voluntary disclosure of information by threatening to demand the gambling profiles of casino guests.
“Perhaps worst of all, what happened in Las Vegas did not stay in Las Vegas, but instead has stayed in federal data banks. None of the information gathered in that investigation has been purged. The rental and travel records of hundreds of thousands of innocent Americans remain in government hands.
“I have three major concerns about the conference report.
“First, I am disturbed that the conference report provides neither meaningful judicial review nor a sunset provision for the provisions regarding national security letters. Instead of protections, this conference report effectively turns NSLs into administrative subpoenas. For the first time, the report authorizes the government to seek a court order to compel compliance with an NSL. Recipients who do not comply could be found in contempt, fined, or even sent to jail.
“A third-party recipient, such as one of the Las Vegas hotels, could theoretically challenge an NSL in court in order to protect the privacy of its customers. But the conference report makes it unlikely such judicial review will matter, because the court is not required to find any individualized suspicion that the records sought are connected to a terrorist.
“Second, I have significant concerns about Section 215, often referred to as the “library provision” of the PATRIOT Act. Under a key provision in the Senate compromise reached this summer, the government would have been required to show that records sought under this provision had some connection to a suspected terrorist or spy.
But under the conference report, the government may demand sensitive personal information of innocent Americans merely upon a showing that the records are “relevant” to a terrorism investigation.
“For example, the government may be broadly suspicious of individuals in a particular immigrant community. Under section 215, the government could go to the library in that community and demand the records of library card holders to see which individuals are reading scientific texts involving explosives.
“A court challenge to a Section 215 order must be conducted in secret. At the government’s request, the recipient is not permitted to view any of the government’s submissions, regardless of whether the government has any national security concerns in that particular case. Moreover, the conference report does not permit any challenge to the automatic, permanent gag order under Section 215.
“Third, the conference report contains sections not included in either the House or the Senate bills limiting the right of habeas corpus in cases that have nothing to do with terrorism. These provisions have not been passed by the Senate or the House. One provision would eliminate judicial review of whether a state has an effective system for providing competent lawyers in death penalty cases. Such a far reaching change should not be inserted in an unrelated conference report.
“There are many other problems with the conference report. It leaves largely in place a definition of domestic terrorism so broad it could be read to cover acts of civil disobedience. For example, the religious figures who were arrested in the Capitol rotunda recently for protesting Republican budget policies might be labeled domestic terrorists if their protest were somehow deemed to be violent.
“It still contains the catch-all provision that authorizes the government to conduct a sneak-and-peek search upon a showing that notice would “seriously jeopardize an investigation.” As many critics of the bill have observed, a good prosecutor could fit just about any search into this provision. The Justice Department has reported that almost 90 percent of the searches that have taken place under the sneak-and-peek authority of the PATRIOT Act have nothing to do with terrorism.
“For these and other reasons, this conference report does not merit Senate approval. Fortunately, we do not face the choice of accepting this conference report or allowing the sixteen PATRIOT Act provisions to expire. I am a cosponsor of S. 2082, a bill introduced by Senator Sununu and others to enact a three-month extension of the expiring PATRIOT Act authorities, so that we can take the time we need to produce a good bipartisan bill that will have the confidence of the American people.
“The Majority Leader said previously that he will not support such a three-month extension. But I am confident that in the end he would not accept responsibility for allowing these authorities to expire, if the Senate determines that we need three more months to reach an acceptable bill.
“Along with many of my colleagues, I will continue to work to reauthorize the PATRIOT Act in a way that gives the government needed tools to protect national security while placing sensible checks on these expanded powers.”