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A Sham Process and a Rotten Deal

Renewing the Patriot Act

by Sen. RUSSELL FEINGOLD

Later today we will have a cloture vote on S. 2271. We should not end debate on this bill, and we should not pass this bill. Doing so will only help implement the deeply flawed deal that was struck with the White House to reauthorize the Patriot Act without enacting the core civil liberties protections for which so many of us have fought. I urge my colleagues to vote No on cloture.

Everyone in this body wants to reauthorize the Patriot Act. Many of the expiring provisions are entirely non-controversial. But we also need to fix the provisions that went too far, that do not contain the checks and balances necessary to protect our rights and freedoms. This reauthorization process is our chance to get it right, and moving forward with this bill takes us one step closer to wasting that chance.

Back in December, 46 Senators voted against cloture on the Patriot Act conference report. I think it’s clear by now that the deal makes only minor changes to that conference report, which remains as flawed today as it was two months ago. The Senator from Pennsylvania, Chairman of the Judiciary Committee and primary proponent of the conference report in this body, was quoted 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."

Since this deal was announced, editorial pages of newspapers also have pointed out how minimal these changes are, and have urged Senators not to change their votes. Let me read a few examples.

The editorial board of the Roanoke Times in Virginia had this to say on February 11: "A compromise that is expected to clear the way for the law’s reauthorization is a victory of fear over strength. The ‘compromise’ the White House and congressional leaders reached this week on reauthorization of the USA Patriot Act is a compromise of the basic freedoms that define this nation. The Bush administration has made a few minor concessions, enough to give the handful of defiant Senate Republicans and some of their Democratic allies cover to extend the broad anti-terrorism bill and claim they have done what they could to protect the civil liberties of innocent Americans. They have not."

That same day, from the New York Times, we heard this: "The Patriot Act has been one of the few issues on which Congress has shown backbone lately. Last year, it refused to renew expiring parts of the act until greater civil liberties protections were added. But key members of the Senate have now caved, agreeing to renew these provisions in exchange for only minimal improvements. At a time when the public is growing increasingly concerned about the lawlessness of the Bush administration’s domestic spying, the Senate should insist that any reauthorization agreement do more to protect Americans against improper secret searches."

And from my own home state, this is from the Wisconsin State Journal on February 18: "In recent weeks senators have worked with the White House to produce a compromise. However, the compromise remains far short of what is required to protect Americans’ civil liberties. Regrettably, the Senate has backed down from its earlier stand and is poised to pass the inadequate bill."

These editorial boards and millions of Americans across the country recognize what everyone in this body already knows: that this deal makes only minor, yes cosmetic, changes to the conference report that was blocked in December. The deal is woefully inadequate. Let me explain why.

I want to start by reminding my colleagues of the context for this deal. Back in November and December when so many of us were fighting for improvements to the conference report, we made very clear what we were asking for. We laid out five issues that needed to be addressed to get our support. I’m going to read excerpts from a letter that we sent explaining our concerns, because I think it will help demonstrate why this deal is so bad. Here are the problems we identified and the changes we asked for several months ago.

On Section 215 we said:

The draft conference report would allow the government to obtain sensitive personal information on a mere showing of relevance. This would allow government fishing expeditions. As business groups like the U.S. Chamber of Commerce have argued, the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.

Next we discussed gag orders, both for Section 215 orders and National Security Letters:

The draft conference report does not permit the recipient of a Section 215 order to challenge its automatic, permanent gag order. Courts have held that similar restrictions violate the First Amendment. The recipient of a Section 215 order is entitled to meaningful judicial review of the gag order.

The draft conference report does not provide meaningful judicial review of an NSL’s gag order. It requires the court to accept as conclusive the government’s assertion that a gag order should not be lifted, unless the court determines the government is acting in bad faith. The recipients of NSLs are entitled to meaningful judicial review of a gag order.

We then moved on to National Security Letters more generally:

The draft conference report does not sunset the NSL authority. In light of recent revelations about possible abuses of NSLs, the NSL provision should sunset in no more than four years so that Congress will have an opportunity to review the use of this power.

And finally we addressed sneak and peek search warrants:

The draft conference report requires the government to notify the target of a "sneak and peek" search no earlier than 30 days after the search, rather than within seven days, as the Senate bill provides and as pre-Patriot Act judicial decisions required. The conference report should include a presumption that notice will be provided within a significantly shorter period in order to better protect Fourth Amendment rights. The availability of additional 90-day extensions means that a shorter initial time frame should not be a hardship on the government.

Again, those quotes are from a letter that we sent late last year. Now, you might ask, in this newly announced deal on the Patriot Act, have any of these five problems been solved?

The answer is "No." Not a single one. Only one of these issues has been even partially addressed by this deal, but it has not been fixed.

This deal only makes a few small changes. First, it would permit judicial review of Section 215 gag orders, but under conditions that would make it very difficult for anyone to obtain meaningful judicial review. Under the deal, judicial review can only take place after a year has passed and can only be successful if the recipient of the Section 215 order proves that that government has acted in bad faith. As many of us have argued in the context of the National Security Letters, that is a virtually impossible standard to meet. We need meaningful judicial review of these gag orders, not just the illusion of it.

Second, the deal would specifically allow the government to serve National Security Letters on libraries if the library comes within the current requirements of the NSL statute. This is a provision that appears to just restate current law. Even the American Library Association has called it a "fig leaf."

And third, the deal would clarify that people who receive a National Security Letter or a Section 215 order would not have to tell the FBI if they consult with an attorney. This last change is a positive step, but it is only one relatively minor change.

So that is what we are left with: one relatively minor improvement. That is nowhere near enough.

Ordinarily, when we debate a flawed bill like this one, we have the chance to improve it by offering amendments. I’ve been trying to do just that to make sure that we don’t miss this opportunity to address the core problems with the Patriot Act that so many of us have been fighting to fix. Before the recess I filed four amendments to S. 2271, but I was prevented from calling them up because the Majority Leader used the procedural tactic of filling the amendment tree in order to prevent Senators from offering and getting votes on amendments. Using procedural maneuvers like this to prevent the Senate from debating and voting on amendments is an insult to this institution and to every one of my colleagues. We are being told we have no choice but to accept a deal that a few members cut with the White House, without changing a word.

We do have a choice — to oppose cloture on this bill and insist that any deal include meaningful civil liberties protections. I don’t know if the Majority Leader fears that my amendments would actually pass, or if he just wants to protect Senators from having to explain why they oppose basic protections for law-abiding Americans. But that should not be how the Senate does its business. Offering, debating and voting on amendments is what the Senate is supposed to be all about ­ that’s how we craft legislation. Trying to ram this deal through without a real amending process is a cynical maneuver that we should all reject, regardless of how we may feel about the merits of the bill. If my colleagues wish to vote against my amendments, that is their right. But no one has the right to turn this body into a rubber stamp.

Let’s take a step back and consider the process that got us here today. As we all know, conference reports are not amendable. They come to this body as a take it or leave it proposition. Those are the rules and we all understand them and play by them. In December, we said no to the Patriot Act conference report.

Now we have a new bill, the product of a side-deal with the White House, that is essentially an amendment to the conference report. It is even drafted that way. Each section of the bill amends the underlying law, as amended by the conference report. That’s right. The bill we are considering today amends a law that hasn’t even been passed by the Senate, much less signed into law. As I understand it, this bill, should both Houses of Congress pass it, will have to sit on the President’s desk unsigned until the President signs the conference report into law.

So proponents of this deal want to effectively amend the conference report which couldn’t pass the Senate in December, even though conference reports are unamendable. And they want to do it by circumventing the regular legislative process with a bill that no one is being allowed to amend ­ even though the bill did not even go through committee, let alone a conference. How is that fair? Why should a handful of members of this body be able to amend an unamendable conference report with a deal struck with the White House, and then prevent the Senate from working its will on that deal? How can one group of Senators amend the conference report but prevent other Senators from trying to do the same thing? How is that possible?

The answer is that it’s not possible, unless the Senate lets it happen. And the vote we will have later today is the vote where we will find out if the Senate will let it happen.

I hope that even colleagues who may support the deal will oppose such a sham process. It makes no sense to agree to end debate 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.

My amendments are limited and reasonable. I spoke at length about them before the recess, but let me just take a few minutes to explain again what they would do.

First, Amendment No. 2892 would implement the standard for obtaining Section 215 orders that was in the Senate bill that the Judiciary Committee approved by a vote of 18 to 0, and that was agreed to in the Senate without objection. This is a reasonable amendment that every Senator in one way or another has basically supported.

It took hard work, but the Judiciary Committee came up with language on Section 215 that protects innocent Americans while also allowing the government to do what is needs to do to investigate and prevent terrorism. The Senate standard would require the government to convince a judge that a person has some connection to terrorism or espionage before obtaining their sensitive records. The Senate standard is the following: (1) that the records pertain to a terrorist or spy; (2) that the records pertain to an individual in contact with or known to a suspected terrorist or spy; or (3) that the records are relevant to the activities of a suspected terrorist or spy. And that is the standard that my amendment would impose. This would not limit the types of records that the government could obtain, and it does not go as far to protect law-abiding Americans as I might prefer, but it would make sure the government cannot go on fishing expeditions into the records of innocent people.

The conference report did away with this delicate compromise, replacing the three-prong test with a simple, and quite broad, relevance standard, which could arguably justify the collection of all kinds of information about law-abiding Americans.

Of all the concerns that have been raised about the Patriot Act since it was passed in 2001, Section 215 is the one that has received the most public attention, and rightly so. A reauthorization bill that doesn’t fix this provision, in my view, has no credibility.

My second amendment is Amendment No. 2893, which would ensure that recipients of business records orders under section 215 of the Patriot Act and recipients of National Security Letters can get meaningful judicial review of the gag orders that they are subject to.

Under the conference report, as modified by the Sununu bill, recipients of these documents would theoretically have the ability to challenge the gag orders in court, but the standard for getting the gag orders overturned would be virtually impossible to meet. In order to prevail in challenging the NSL or Section 215 gag order, the recipient would have to prove that any certification by the government that disclosure would harm national security or impair diplomatic relations was made in bad faith. There would be what many have called a "conclusive presumption" that the gag order stands, unless the recipient can prove that the government acted in bad faith. That is not meaningful judicial review.

My amendment would eliminate the "bad faith" showing currently required for overturning both section 215 and NSL gag orders. And it would no longer require recipients of section 215 orders to wait a year before they can challenge the accompanying gag orders, which is a new requirement included in the Sununu bill.

My third amendment, Amendment No. 2891, would add to the conference report one additional 4-year sunset provision. It would sunset the National Security Letter authorities that were expanded by the Patriot Act. It would simply add that sunset to the already existing 4-year sunsets that are in the conference report with respect to section 206, section 215, and the lone wolf provision.

National Security Letters, or NSLs, are finally starting to get the attention they deserve. This authority was expanded by sections 358 and 505 of the Patriot Act. The issue of NSLs has flown under the radar for years, even though many of us have been trying to bring more public attention to it.

National Security Letters are issued by the FBI to businesses to obtain certain types of records, without any court approval whatsoever. NSLs can be used to obtain three types of business records: subscriber and transactional information related to Internet and phone usage; credit reports; and financial records, a category that has been expanded to include records from all kinds of everyday businesses like jewelers, car dealers, travel agents and even casinos. This is a very broad power, and I can think of no reason why Congress would not want to place a sunset on these authorities to ensure we have the opportunity to take a close look at them.

Finally, my fourth amendment, Amendment No. 2894, concerns so-called "sneak and peek" searches, whereby the Government can secretly search people’s houses in everyday criminal investigations and not provide notice of the search until afterward. The key issue here is how long the government should be allowed to wait, at least in most cases, before it notifies individuals that their homes have been searched. The Senate bill said seven days should be the presumption, with the ability to get extensions if necessary. But the conference report does away with that and instead allows a delay of 30 days in most cases.

My amendment would restore the key component of the Senate compromise by requiring that subjects of sneak and peek searches be notified of the search within 7 days, unless a judge grants an extension of that time because there is a good reason to still keep the search secret. It makes no other change to the conference report other than changing 30 days to 7 days.

Those are my amendments. They are eminently reasonable. They are consistent with provisions that we approved in the Senate last year, or they were central to the concerns raised by so many Senators late last year. So these are obviously not extreme ideas. And the Senate should be allowed to vote on these four amendments. All of us have as much right as the Senators who struck a deal with the White House do, to try to amend the conference report.

I’m happy to report that the Senator from Pennsylvania thinks these are reasonable amendments too. In fact, he thinks they are so reasonable that late yesterday he announced that he is going to combine them into a single bill and introduce it today, and try to move it in the Judiciary Committee. That’s right, the Chairman of the Judiciary Committee, the chief proponent in this body of the Patriot Act reauthorization conference report and of the White House deal the Senate is being asked to ratify, has taken the four amendments I just described and, with a few minor tweaks, introduced them as a bill.

I must say, I am flattered. And of course I will support that bill. But there is an alternative to the lengthy and uncertain legislative process that awaits the Chairman’s new bill. And that is to allow the Senate to vote on my amendments. The Chairman could offer them with me. We would make a powerful team I’m sure. And we have the perfect and logical vehicle for these amendments to the Patriot Act before us right now. All we need to do is add the Chairman’s reasonable proposals to this bill and send it to the House where it would almost certainly pass if the leadership would allow it to be voted on. These provisions, most of which come right out of the bill that passed the Senate without objection last July, could become law in a matter of weeks, rather than a year or more from now, if ever.

My amendments, and Senator Specter’s bill, are simply what the bipartisan group asked for back in December when we blocked the Patriot Act reauthorization conference report. Our requests were reasonable then, and they are reasonable now. The only reason we are considering a package that doesn’t include them is that the White House played hardball, and some Senators decided they had to capitulate.

I oppose the flawed deal we are being asked to ratify. And I oppose the sham process that the Senate is facing here. We still have not fixed some of the most significant problems with the Patriot Act, and if we allow the conference report to go through, the Chairman’s sincere hopes notwithstanding, I fear we will lose that chance for another four years. So I must oppose cloture on this bill, which will allow the deal to go forward.