05.24.11

Leahy: Bipartisan Leahy-Paul Amendment Promotes Transparency, Civil Liberties

WASHINGTON (Tuesday, May 24, 2011) – Vermont Senator Patrick Leahy (D) spoke today on the Senate floor urging Senators to join a bipartisan effort to improve pending legislation to extend three expiring provisions of the USA PATRIOT Act.

Leahy is leading Senate efforts to adopt an amendment he has authored and which is cosponsored by Republican Senator Rand Paul of Kentucky that will make significant improvements to the underlying legislation, promote transparency, and expand privacy and civil liberties safeguards.  The bipartisan amendment is also cosponsored by Senators Ben Cardin, Jeff Bingaman, Christopher Coons, Jeanne Shaheen, Ron Wyden, Al Franken, Kirsten Gillibrand, Tom Harkin, Dick Durbin, Jeff Merkley, Barbara Boxer, and Daniel Akaka.

 

“The bill before the Senate today merely extends the expiring authorities to June 1, 2015,” said Leahy.  “Regrettably, these authorities have not been refined since 2006.  If that remains the case through the extensions contemplated by this bill, it will amount to nine years without legislative improvement.  I know that we can do better.  The amendment we offer today seeks to change that by improving the PATRIOT Act.”

The bipartisan amendment closely tracks legislation Leahy introduced earlier this year.  That bill won approval by a bipartisan majority of the Senate Judiciary Committee in March.

The three expiring provisions of the USA PATRIOT Act include roving wiretaps, the “lone wolf” measure, and section 215 orders for tangible things, commonly referred to as the “library records” provision.  The authorities were originally set to expire in December 2009.  Leahy first proposed legislation to reauthorize the intelligence-gathering tools in September 2009.  The bill received bipartisan support in the Senate Judiciary Committee in 2009, and was backed by the Obama administration, the Attorney General, and the Director of National Intelligence.

Provisions included in the bipartisan Leahy-Paul amendment include a sunset on National Security Letters, audits and public reporting requirements, protections for the privacy of all Americans, and a provision to fix an unconstitutional element of the USA PATRIOT Act.  A detailed summary is available online.

 

“I do not think the Senate should shirk its duty to reexamine carefully and critically the provisions of the PATRIOT Act, and to consider ways to improve the law consistent with our core constitutional principles.  That is what I have tried to do.  That is what Vermonters expect,” said Leahy.  “Without a single improvement or reform, without even a word that recognizes the importance of protecting the civil liberties and constitutional privacy rights of Americans, the underlying bill represents a missed opportunity.  I urge all Senators to support the Leahy-Paul amendment.”

The Senate is considering legislation to provide a straight extension of the authorities until June 1, 2015, more than five years after the original expiration date, and nine years after legislative improvements to the original USA PATRIOT Act were last enacted.  The bill, however, makes no additional improvements to the law.

# # # # #

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, U.S. Senate Committee On The Judiciary
On Extension Of USA PATRIOT Act Authorities

May 24, 2011

As Prepared for Delivery

Nearly 10 years after the attacks of September 11, 2001, every one of us in the Senate understands that America continues to face threats of terrorism.  The President’s success against Osama bin Laden earlier this month does not mean we can become complacent or less resolute.  We must remain vigilant and ensure that the dedicated women and men in our law enforcement and intelligence agencies have all the appropriate tools necessary to protect our Nation and the American people.  But, as every Vermonter knows, tools are only useful if they are regularly checked and maintained.  Otherwise they become blunt instruments that can do harm, rather than accomplish the job.

Congress recognized this basic notion in 2001, when we first wrote the USA PATRIOT Act.  I worked with the then Republican House Majority Leader, Dick Armey, to include sunsets on certain surveillance authorities in the bill.  In 2006, when Congress reauthorized the USA PATRIOT Act, I worked to ensure that certain sunsets were renewed, and added audits on the use of powers with the potential to unnecessarily intrude on the privacy of Americans.   

Having granted the Government broad authority to gather vast amounts of information about the daily lives of Americans, I wanted to do what we could to ensure that unfettered information gathering did not occur at the expense of Americans’ basic constitutional rights and civil liberties.  The sunsets and audits provide Congress an opportunity to examine whether PATRIOT Act tools are being used appropriately, and if not, to sharpen, refine, or restrain those tools accordingly. 

The audits we added in 2005 and 2006 have proven helpful in identifying abuses with respect to national security letters and the use of “exigent letters,” and we have worked with the FBI to correct those matters.

Today the Senate has the opportunity to re-examine and refine key PATRIOT Act provisions.  I believe we should seize this opportunity to make improvements to current law.  That is why I have led the Senate Judiciary Committee to diligently consider these matters.  The Committee has responded by reporting improvements both last year and this year through bipartisan legislation.  They are good measures that we have worked to ensure would not compromise the effectiveness of our law enforcement and intelligence capabilities.  Much of the language was derived after consultation with the administration, including the intelligence community. 

The Attorney General and others have repeatedly assured us that the measures to enhance oversight and accountability, such as audits and public reporting, would not sacrifice “the operational effectiveness and flexibility needed to protect our citizens from terrorism” or undermine “the collection of vital foreign intelligence and counterintelligence information.”  In fact, the Attorney General has consistently said that the Senate Judiciary Committee-passed bill struck “a good balance” by extending PATRIOT Act authorities while adding accountability and civil liberties protections.

For additional detail and legislative history, I refer Senators to the Senate report on the bill reported by the Senate Judiciary Committee this year, Senate Report Number 112-13.  I ask that a December 9, 2010, letter from the Attorney General to me making these points be included in the Record, along with a February 19, 2010, letter from the Director of National Intelligence to House leaders.

Unfortunately, the bill before the Senate today merely extends the expiring authorities to June 1, 2015.  Regrettably, these authorities have not been refined since 2006.  If that remains the case through the extensions contemplated by this bill, it will amount to nine years without legislative improvement.  I know that we can do better.  Accordingly, the amendment we offer today seeks to change that by improving the PATRIOT Act.   

I appreciate the efforts made by the Majority Leader to craft a compromise and I am sorry that the Republican Leadership in Congress has insisted on an extension of authorities without improvements.  The amendment I have filed and wish to offer along with Senators Paul, Cardin, Bingaman, Coons, Shaheen, Wyden, Franken, Gillibrand, Harkin, Durbin, Merkley, Boxer and Akaka will make significant improvements to current law to promote transparency and expand privacy and civil liberties safeguards. 

I ask unanimous consent to place a sectional analysis of the amendment in the Record.

One of the improvements Congress should make is to repair a constitutional infirmity in the current law.  Three years ago, in Doe v. Mukasey, the United States Court of Appeals for the Second Circuit  found that the nondisclosure provision of the statute authorizing issuance of National Security Letters (NSLs) was constitutionally defective.  As part of a comprehensive set of reforms in a bill reported favorably by the Judiciary Committee, I proposed a simple statutory fix that would enable the FBI to obtain the information it needs, while addressing the constitutional concerns.  This proposal has never been controversial.  In fact, during the last Congress, Senator Sessions and Senator Bond, then the ranking Republican members of the Senate Judiciary and Intelligence Committees, cosponsored a bill that incorporated the very legislative remedy that I had proposed.   This is a straightforward matter that needs to be fixed.  The underlying bill does not fix the problem; our amendment would.  I trust that Senators would not want to proceed to vote on an unconstitutional law, one that violates our fundamental charter and the liberty of all Americans.  No one who claims to honor the Constitution should proceed in so cavalier a manner.  If we are to restore the constitutional underpinning of the NSL authority, the Senate should adopt this needed improvement. 

I am also troubled by the Republican leadership’s refusal to agree to periodic audits on the use by the Government of USA PATRIOT Act surveillance authorities.  Basic transparency and accountability are vital to ensuring that the Government does not overstep its legal authority.   In fact, it was only because of the audits that were mandated by the 2006 PATRIOT Act reauthorization bill that the American public became aware of some of the abuses and misuses of the NSL authority.  Without that public accountability and congressional oversight, the FBI would not have made improvements to its system of tracking NSL issuance.  Because of those audits, we are more confident today that FBI agents are following proper procedures for obtaining private information about Americans – rather than improperly using “exigent letters” to circumvent the rules, or using “Post-it” notes to keep track of records.  Yet the underlying bill omits audits and public reporting; our amendment includes important auditing requirements and public reporting to provide accountability and protect Americans’ rights.

No one can seriously contend that audits by an Inspector General of past operations present any operational concerns to law enforcement or intelligence gathering.  It is not interference but accountability that they provide.  These have been demonstrated to be vital oversight tools and they should be incorporated into the law. 

The language in our amendment is the product of more than a year and a half of extensive negotiations with Republicans and Democrats, the intelligence community, and the Department of Justice.  This year, the Senate Judiciary Committee bill won the support of Senator Lee.  Last year, a virtually identical bill, received the votes of Senators Kyl and Cornyn when it was reported favorably by the Senate Judiciary Committee to the Senate.   The bipartisan amendment we have filed and seek to offer is a reasonable package of reforms that preserves the ability of the Government to use the PATRIOT Act surveillance tools, while promoting transparency, accountability, and oversight. 

I do not think the Senate should shirk its duty to reexamine carefully and critically the provisions of the PATRIOT Act, and to consider ways to improve the law consistent with our core constitutional principles.  That is what I have tried to do.  That is what Vermonters expect.   I intend to vigilantly guard their privacy and civil liberties, while doing all I can to help keep them and all Americans secure.   Without a single improvement or reform, without even a word that recognizes the importance of protecting the civil liberties and constitutional privacy rights of Americans, the underlying bill represents a missed opportunity.  Let us provide our law enforcement and intelligence professionals with the tools they need and give these professionals the security and certainty they need to protect our Nation.   But let us also faithfully perform our duty to protect the constitutional principles and civil liberties upon which this Nation was founded and on which the American people depend.  The American people expect us to be able to do both; I believe our amendment does just that.  I urge all Senators to support the Leahy-Paul amendment.

# # # # #

Press Contact

David Carle: 202-224-3693