10.08.09

Judiciary Committee Approves USA PATRIOT Act Legislation

WASHINGTON (Thursday, October 8, 2009) – At a meeting Thursday, the Senate Judiciary Committee approved legislation to reauthorize expiring provisions in the USA PATRIOT Act and improve oversight of several tools used to gather intelligence.  The Committee’s bipartisan 11-8 vote advances the legislation to the full Senate for consideration.

The USA PATRIOT Act Sunset Extension Act was introduced by Committee Chairman Patrick Leahy (D-Vt.), and original cosponsors Ben Cardin (D-Md.) and Ted Kaufman (D-Del.) on September 22.  The bill is cosponsored by Senator Dianne Feinstein (D-Calif.), the chair of the Senate Select Committee on Intelligence, and Committee Members Sheldon Whitehouse (D-R.I.) and Amy Klobuchar (D-Minn.).  Senators Herb Kohl (D-Wis.), Chuck Schumer (D-N.Y.), Al Franken (D-Minn.), Jon Kyl (R-Ariz.), and John Cornyn (R-Texas) also voted to approve the legislation.

“I remain mindful of our responsibility to ensure both security and liberty as we proceed,” said Leahy.  “Our bill will provide the tools that are needed to protect us, while increasing the protections of our vital constitutional rights, as well.  We have taken the administration up on its offer to work with us to ‘provide additional protection for the privacy of law abiding Americans’ and have done so without undermining the operational effectiveness of the counterterrorism tools provided in the Patriot Act.  I appreciate the work of Senator Cardin and Senator Kaufman, as well as Senator Feinstein, Senator Whitehouse and Senator Klobuchar, in advancing this bill.”

“This legislation will ensure that our intelligence and law enforcement communities have the tools they need for counterterrorism operations, while ensuring the civil liberties protections and government oversight that are essential in a democracy,” Feinstein said.

“Our priority is to protect the American people – both safety and civil liberties,” said Cardin, who chairs the Terrorism and Homeland Security Subcommittee.  “We must make sure that our law enforcement and intelligence professionals have the tools they need to prevent and disrupt terrorist attacks, while maintaining an appropriate balance between national security and protecting civil liberties. With these parallel goals in mind, I believe the Judiciary Committee took the right action today to extend the provisions that expire at the end of the year.  This legislation provides stronger Congressional and judicial oversight of the Patriot Act, as well as new limits on the use of National Security Letters.”

Kaufman said, “We must provide our law enforcement and intelligence officials the tools they need to keep America safe, while at the same time safeguarding Americans’ rights. As this process moves to the floor, I look forward to continuing to work with Chairman Leahy, my colleagues, and the administration to make sure that we accomplish both of these critical objectives.”

The legislation reauthorizes three provisions of the Patriot Act that are set to expire at the end of the year: roving wiretaps, the “lone wolf” measure, and Section 215 orders for tangible things, commonly referred to as the “library records” provision.  The Patriot Act was first enacted in October 2001, and was reauthorized in 2006.  The legislation approved Thursday also includes several oversight provisions, including sunsets and audits of National Security Letters (NSLs), ensures greater judicial review of nondisclosure orders and reporting requirements to allow Congress to monitor the use of authorities.  The legislation also includes new court approved minimization procedures for Section 215 orders for business records or tangible things and for NSLs to ensure stronger privacy protections.

The Committee adopted a substitute amendment negotiated by Leahy and Feinstein at a business meeting on October 1.

Amendments adopted at the meeting Thursday made the following changes to the legislation:

  • Clarify that minimization procedures for pen register/trap and trace orders apply to information “known to concern” U.S. persons.
  • Indicate that, provided that the conditions set forth for a non-disclosure order are met, judges shall issue the order, as was intended in setting out those conditions.
  • Require the government to notify those NSL recipients who challenge non-disclosure orders when such an order is no longer required.
  • Clarify the types of library records entitled to more deferential review under Section 215 orders.
  • Make technical fixes for the minimization procedures for pen register/trap and trace orders.
  • Require the FBI (or other agency issuing a National Security Letter)  to include specific facts in its written statement supporting the issuance of the National Security Letter showing that the information requested is relevant to an authorized investigation.
  • Elevate the weight a court gives to the government’s assertion of potential harm from disclosure of NSLs from “appropriate weight” to “substantial weight.”
  • Require that the Attorney General, within 180 days of enactment, establish minimization and destruction procedures governing acquisition, retention, and dissemination by the FBI of any records received by the FBI in response to a National Security Letter.

Text of all amendments considered during the Committee’s meeting are available online.  The USA PATRIOT Act Sunset Extension Act will now be reported to the full Senate for consideration.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Opening Statement
Executive Business Meeting
October 8, 2009

Last Thursday, we began debate on the USA PATRIOT Act Sunset Extension Act.  I hope that as we discussed last week, today we can proceed efficiently and report the bill to the Senate for prompt action.  I appreciate the cooperation of all members in recognizing the impending deadline for action and the need to move forward.

This week the President extended the thanks of a grateful Nation to our intelligence community and spoke about the progress we are making in disrupting, dismantling and defeating al Qaeda and other extremist networks that continue to plot against the United States and our allies. He talked about our renewed leadership around the world, and al Qaeda’s lost operational capacities, as well as its lost credibility and legitimacy.  In the words of President Obama, we are “drawing strength from the values that we hold dear” while we “redouble our efforts in the face of a threat that persists.”  He spoke, as I did last week, about the arrests in Denver and New York, and in Illinois and Texas.

I arranged for the classified briefing that Republican Members had requested in addition to those briefings previously provided to the Ranking Republican’s staff.  I hope it was helpful, and will bring us closer to a shared understanding and a shared commitment to send to the Senate this bill.  At our recent hearings, the Assistant Attorney General for National Security and the FBI Director told this Committee about the need for prompt action on tools they consider important to our counterterrorism efforts.

I, again, thank Senator Kaufman and Senator Cardin, the Chairman of our Terrorism and Homeland Security Subcommittee, who are original cosponsors of this measure.  I thank Senator Feinstein, Senator Whitehouse and Senator Klobuchar for working with us and supporting the substitute amendment and joining as cosponsors.  Senator Feinstein, the chair of the Select Committee on Intelligence, asked for the accommodations she thought were needed and I agreed.  I thank her for her support and look forward to our moving forward together.

As Senator Feinstein and I explained last week, our bill increases judicial and congressional oversight of the use of the Government powers that capture information on U.S. citizens.   We have taken the administration up on its offer to work with us to “provide additional protection for the privacy of law abiding Americans” and have done so without undermining the operational effectiveness of the counterterrorism tools provided in the Patriot Act.  On that last point, there can be no dispute following the classified briefing for Members yesterday.

In our debate last week Senator Cardin and Senator Coburn were especially forceful in support of the use of sunsets as accountability measures that help us do our job on behalf of the American people.  I agree.

Director Mueller acknowledged the value of oversight, and has recently reiterated his support for “periodic outside review” of their utilization of these authorities.  The Assistant Attorney General for National Security, David Kris, testified about the “interlocking methods” we can use to protect against abuses, including oversight by the Office of Inspector General and oversight by Congress, including this Committee, as effective checks.  He noted how sunsets can “fuel” that oversight and compliance.  House Majority Leader Armey and I knew that when we worked together to include sunsets in the Patriot Act.  It brings us to this day in which we strengthen the Patriot Act through the course of another periodic outside review of how authorities can be improved and abuses prevented.

I remain mindful of our responsibility to ensure both security and liberty as we proceed.  All of us know that the threats to Americans’ safety are real and continuing.  Our bill will provide the tools that are being used to protect us, while increasing the protections of our vital constitutional rights, as well.  The bill we consider today will serve to extend the authorization of the three expiring Patriot Act provisions requested by the administration.   We also provide for increased Government accountability requiring audits and reviews of how these vast authorities are being used.  I will include in the record an outline of the accountability measures we include in the Sunset Extension Act.

Last week, those members of this Committee who have amendments to offer agreed to work with me to complete our consideration this morning so that the bill may be reported to the Senate without delay.  I appreciate the cooperation of all members.  Those amendments that Senators feel need to be offered today should be down to a handful.  Debate on each need not be extended.

I will continue to work with Senators on issues of interest to them but strongly urge that amendments seeking to add contentious issues to the bill not be proposed.  I will work with Senator Cardin and Senator Kyl, the chairman and ranking Republican on the Terrorism Subcommittee, to provide opportunities to work on such complex and time consuming issues as redefining the crime of providing “material support.”  With that matter currently pending before the United States Supreme Court, we should proceed carefully.   We run the added risk that a hasty amendment will have the effect of undercutting current prosecutions.

Working in good faith we can produce today a bill that can be supported by most members of this Committee and most members of the Senate.  It can extend the needed authorities while providing increased accountability and allow both the congressional and judicial branches to contribute to practices that protection Americans’ safety and freedoms.

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