Opening Statement Of Sen. Patrick Leahy Ranking Member, Judiciary Committee On The Conference Report On H.R.3199 The USA PATRIOT Improvement And Reauthorization Act Of 2005

Earlier this week, I spoke about how the world changed on September 11, 2001.  Nearly 3,000 lives were lost on American soil.  In the aftermath of the attacks, Congress moved quickly to pass anti-terrorism legislation.  The fires were still smoldering at Ground Zero when the USA PATRIOT Act became law on October 30, 2001, just six weeks after that horrible day.    

Security and liberty are always in tension in our free society, and especially so in the wake of the attacks of 9/11.  The American people today and the next generations of citizens depend on their elected representatives to strike the right balance.  Preventing the needless erosion of liberty and privacy requires constant vigilance and vision from those who the people have entrusted with writing the laws.

I negotiated many of the provisions of the PATRIOT Act and am gratified to have been able to add several checks and balances that were not contained in the initial proposal.  But as I said at the time, the PATRIOT Act was not the final bill that I, or any of the sponsors, would have written if compromise had been unnecessary. 

In reviewing the PATRIOT Act this year, Congress once again tried to strike the right balance between the security and the liberty that is the birthright of every American.  The public expects and deserves that we will diligently fight to achieve that balance.  Regrettably, the PATRIOT Act reauthorization bill that is now before the Senate does not accomplish that goal.  The bipartisan Senate bill, which the Senate Judiciary Committee and then the Senate adopted unanimously, reached a better balance.  It was not a perfect bill by any means and there were matters others insisted be added to it that I hoped to improve in conference.  The Senate bill, like the PATRIOT Act itself, was a legislative compromise achieved through good faith, bipartisan negotiations.  Chairman Specter and I were able to achieve a good enough bipartisan compromise that we were able to gain the support of all the Republicans and Democrats serving on the Judiciary Committee, including Senators who had sponsored the SAFE Act.  It was passed unanimously by the Senate last July.

A Troubled Conference – Delays, One-Sided Discussion

In July, the Senate moved promptly to appoint conferees.  Unfortunately, the House did not act as swiftly and we lost several months that could have been used to seek common ground between the two versions of the bill.  The House delayed appointing conferees for several months and pushed us up against the December 31st deadline from the sunsets in the PATRIOT Act.

It was only last month that the House acted to name conferees.  However, the conference met only once and then only for opening statements.  There was never a working meeting of the conference in which positions were debated and the conferees were able to offer improvements and vote.  There was no opportunity to debate this conference report in a public meeting of conferees, and no opportunity to offer improving amendments for consideration of the House-Senate conference and votes.

Instead, there came a point where Democratic conferees were shut out of the process and key negotiations took place only among Republican conferees and the Administration.  The earlier, informal, bipartisan discussions in which I had been involved had been promising.  A good deal of progress was being made.  Much of what is good about the conference report that is before us is owed to those discussions.  I thank Chairman Sensenbrenner for acknowledging this week that we came to those discussions with good ideas for accountability, for sunshine, for increased oversight and judicial review, and for better standards by which to measure the authorities being considered for the government.    Tentative agreements were also being reached on removing a number of extraneous provisions, particularly from the House-passed bill. 

The House version of the bill was loaded with “extras,” many of which had no connection to fighting terrorism.  These provisions were tacked on to the bill as floor amendments with little or no debate.  Some raised very serious concerns.  For example, the original House bill made significant procedural changes to Federal death penalty laws, including the opportunity for Federal prosecutors to convene a new jury and effectively get a “do-over” whenever they failed to persuade a jury to impose a death sentence.  This and other controversial provisions were dropped or substantially modified during those early days of bipartisan meetings.

No one will be surprised to hear that after Democrats were excluded, the negotiations took a turn and resulted in a one-sided draft conference report.  The media reported in banner headlines on November 17 that Congress had arrived at a deal on the PATRIOT Act.  In fact, that first draft conference report was widely criticized by Members of Congress on both the right and left sides of the political spectrum.  Among the Republican Senate conferees there was not the minimum support needed.   

Since that time, I have continued to work with other Senate conferees to push for improvements.  I also reached out to the White House.  I had many discussions with Chairman Specter.  I especially want to commend the other Senate Democratic conferees, Senators Kennedy, Rockefeller and Levin.  They have been constructive throughout the process, which was made more difficult by the injection of needless partisanship from the other side. 

Since November 17 our efforts has led to significant improvements in the conference report.  We succeeded in making this a better bill than the earlier one being insisted upon before Thanksgiving.  The current bill contains 4-year sunsets and no longer contains a provision that would have made it a crime merely to disclose the receipt of a national security letter.  The ban against talking to a lawyer without first notifying the government in connection with the receipt of a national security letter was modified.   Our efforts have produced some improvements and better balance and for that Americans will be better protected.

A Bipartisan Bid For More Time To Achieve A Better Bill

I believe that there is still more that we can do and should do before finalizing this important measure.  There are more improvements that we can make and, I believe, would have made in an open, bipartisan conference.  There are more assurances we can include in the law so that the American people can have greater confidence in the law, how it will be utilized and how Congress and the courts will ensure their rights are protected.  

This week, along with Senator Sununu, Senator Craig, Senator Murkowski, Senator Hagel and others, including my fellow Democratic conferees, I cosponsored a bill to provide a short-term extension of the expiring PATRIOT Act provisions so that we can continue working to make additional improvements to the law.  I was disappointed to hear that some are saying that unless this conference report is passed in this form, they would stand by to allow the PATRIOT Act provisions like that regarding sharing of important information with our intelligence community to expire.  Those of us working to improve the bill are not taking that position.   We want the best bill we can achieve and the greater protection of Americans civil liberties. 

In an editorial just yesterday, USA Today chided the Bush Administration and its allies in Congress for “resist[ing] calls for more meaningful protection against invasion of privacy and abuse of civil liberties.”  It supported the proposal that Senator Sununu and I have advanced to extend the PATRIOT Act for three months to allow more time to fix what’s wrong.

I am encouraged that FBI spokesman are now endorsing the improvements we have been able to achieve over the last month and which the Administration had initially opposed.  I know that together we can do better.  

I did not sign the conference report in its current form.  I understand that on Wednesday more than 200 Members of the House, both Republicans and Democrats voted to recommit this conference report and continue working to improve it.  I have spoken to Senators on both sides of the aisle who would like to see us work out a better bill and stronger protections for the American people.  I agree and will continue working to achieve that.  I believe that the approach Chairman Specter and I took of working together in a bipartisan manner is the better approach.  I think that had we followed through with that approach we would have reached a better balanced bill and the American people would have more confidence in it.

It is not just the provisions of the law itself but the way they are administered and enforced and the perception of the American people that matter.  Let me give you an example.  As librarians and others across the country raised concerns about the use of the business records subpoena authority in the PATRIOT Act, Attorney General Ashcroft could have defused the situation from the outset.  Instead he was secretive and scared the American people.  He would not work with or share information with the Congress.  He claimed variously that the provision had not been used with libraries but then obfuscated when asked whether national security letters were being used in connection with library records.  He then classified even the number of subpoenas served upon libraries.  When that number was later unclassified, is there any wonder that people remained concerned? 

He could and should have worked with Congress to develop better standards and review and oversight.  This could have been done administratively or with a legislative correction.  Instead, he hoarded the information, raised suspicions and attacked anyone who raised questions about how government power was being used.

I want to express my appreciation, in particular to Chairman Specter, but also to Chairman Sensenbrenner.  I do not question their motivation.  I respect them.  Together they have worked with us to correct several of the problems and concerns about earlier drafts of this conference report.  As I have noted, Chairman Specter did speak with me and we had many, many discussions about these issues throughout this process.  I appreciate his efforts.  I regret that we were not able to achieve more of what we had achieved both the bipartisan process and some of the specifics of the Senate-passed bill.

Both Chairman Sensenbrenner and Chairman Specter share my interest in congressional oversight, and the conference report is a better bill because of it.  Throughout the early informal, bicameral discussions and earlier during the Senate’s bipartisan consideration of this matter, I advanced several “sunshine” provisions to facilitate oversight and ensure some measure of public accountability for how the government uses its powers.  The conference report contains most of these proposals, including public reporting and comprehensive audits on the use of two controversial PATRIOT Act provisions—both business record subpoenas and national security letters.

In addition to sunshine provisions, I proposed that we retain the sunset mechanism that worked so well in the original PATRIOT Act.  Back in the fall of 2001, Republican House Majority Leader Dick Armey and I insisted on 4-year sunsets for certain PATRIOT Act powers with great potential to affect the civil liberties of Americans.  Those sunsets contributed greatly to congressional oversight.  The fact that they were included is the reason we are going through this important review and renewal process now.

This year, I proposed and the Senate agreed to 4-year sunsets on three key provisions.  The House initially approved 10-year sunsets on two provisions.  With steadfastness and hard work on the part of Senate conferees we were able to achieve the 4-year sunsets that were in the Senate bill.  I commend, as well, Representative Conyers and the House for passing an instruction to the House conferees to abide by the 4-year sunsets.  Despite strong majority support in both bodies for 4-year sunsets and even after the House had voted to instruct its conferees, it took weeks to persuade Republican leaders in the House and the Administration to accept this commonsense measure. 

The enhanced oversight provisions and 4-year sunsets are positive features of the conference report to be sure, but many problems remain.  Let me touch briefly on some of the flaws in this conference report that are still troubling to Senators from both sides of the aisle and to those concerned about civil liberties advocates from both the right and the left.

Weaker Checks on Secret Orders for Business Records

I will start with the conference report’s treatment of Section 215 of the PATRIOT Act, the so-called “library provision.”  Under Section 215, the government can obtain a secret order that compels access to sensitive records of American citizens, and also imposes a permanent gag order on the recipient.

Before passage of the PATRIOT Act, there were two significant limitations on the FBI’s power to seize business records.  First, it could be used only for a few discrete categories of travel records, such as records held by hotels, motels, and vehicle rental facilities.  Second, the legal standard for obtaining the order was demanding.  The government had to present specific and articulable facts giving reason to believe that the subject of the investigation was a foreign power or an agent of a foreign power. 

The PATRIOT Act did away with these limitations.  It both expanded what the FBI may obtain with a Section 215 order and it lowered the standard for obtaining it.  Under current law, the government need only assert that something -- anything -- is sought for an authorized investigation to protect against terrorism or espionage, and the judge will order its production. Under this provision, what counts as an authorized investigation is within the discretion of the Executive branch.

The Senate, in its reauthorization bill, rightly re-established a significant check on this power.  Under the Senate bill, relevance to an authorized investigation is not enough; the government must also show some connection between the records sought and a suspected terrorist or spy.  This is a fundamental protection that would not hamstring the government, but would do much to prevent overreaching in government surveillance.  Unfortunately, it was stripped out in conference. 

The conference report is deficient with respect to Section 215 in two other respects.  First, unlike the Senate bill, the 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.  Second, the conference report allows the government to use secret evidence to oppose a judicial challenge to a Section 215 order.  At the government’s request, the court must review any government submission in secret, regardless of whether it contains classified material.  This has the potential to turn an adversarial process into a kangaroo court, and will at a minimum make it extremely difficult for the recipient of a Section 215 order to obtain meaningful judicial review that comports with due process.

Inadequate Safeguards For National Security Letters

The conference report also falls short on its treatment of National Security Letters, or NSLs.  These are, in effect, a form of secret administrative subpoena.  They are documents issued by FBI agents without the approval of a judge, grand jury, or prosecutor.  They allow the agents to obtain certain types of sensitive information about innocent Americans simply by certifying its relevance to a terrorism or espionage investigation.  Like Section 215 orders, NSLs come with a permanent gag.  The recipient of an NSL is prohibited from telling anyone that he has been served.

Proponents of this conference report have made much of the fact that it creates an explicit right to challenge an NSL in court.  But even under current law, NSLs can be, and have been, successfully challenged.  Indeed, in recent litigation, the government has taken the position that NSL recipients have an implied right to judicial review.  Making this right explicit makes sense, but it does not, in itself, offer significant protection.

That is particularly so given the one-sided procedures set forth in the conference report, which do not allow meaningful judicial review of NSLs gag order.  The conference report requires a court to accept as “conclusive” the government’s assertion that the gag is needed, unless the court finds the government is acting in bad faith.  This raises serious First Amendment and due process concerns.  I cannot understand why anyone would insist on provisions that tie the hands of Federal judges and further reduce our confidence in the use of these tools.  Yet, despite strong opposition to this provision from the right and the left sides of the political spectrum, House Republicans refused to strip it out. 

In an editorial this week, The Washington Post noted the conference report’s deficiencies with respect to Section 215 orders and NSLs, but called them “not unsolvable,” adding “it’s hard to believe the government is today getting much data through uses of these powers that would be forbidden were they written more accurately.”

Alternatively, Democratic conferees proposed a 4-year sunset on the NSL authority.  While a sunset is no substitute for substantive improvement, it would at least have ensured that Congress would revisit this issue in depth.  We would have had an opportunity, then, to study how these judicial review procedures worked in practice.  Again, House Republicans rejected this path to bipartisan compromise.

Excessive Delay For “Sneak and Peak” Searches

The conference report’s treatment of the PATRIOT Act’s so-called “sneak and peek” provision is another area of concern.  Section 213 of the PATRIOT Act authorized the government to carry out secret searches in ordinary criminal investigations.  Armed with a Section 213 search warrant, FBI agents may enter and search a home or office and not tell anyone about it until weeks or months later. 

It is interesting to recall that four years ago, the House Judiciary Committee took one look at the Administration’s original proposal for sneak and peak authority and dropped it entirely from its version of the legislation.  As Chairman of the Senate Judiciary Committee, I was able to make some significant improvements in the Administration’s proposal, but problems remained.  In particular, Section 213 says that notice may be delayed for “a reasonable period,” a flexible standard that has been used to justify delays of a year or more.  Pre-PATRIOT Act case law stated that the appropriate period of delay was no more than 7 days.

The Senate voted to replace this standard with a basic 7-day rule, while permitting the government to obtain additional 90-day extensions of the delay.  The conference report sets a 30-day rule for the initial delay, more than three times what the Senate, and pre-PATRIOT Act courts, deemed appropriate.  The shorter period would better protect Fourth Amendment rights without in any way impeding legitimate government investigations.  The availability of additional 90-day extensions means that a shorter initial time frame should not be a hardship on the government.

Controversial Extras

This conference report also is loaded with extraneous provisions that have nothing to do with the expiring PATRIOT Act authorities, or even with terrorism. 

I am particularly concerned that the conference report modifies habeas corpus law, a highly controversial move that is wholly improper to consider in this context.  The changes to habeas added here at the insistence of a small number of Republican conferees have nothing to do with terrorism or even more general tools of federal enforcement.  These changes were not included in the PATRIOT Act reauthorization bill of either the House or the Senate.  They were added late in the conference process, after all Democratic conferees were shut out of discussions.  They received no serious consideration by either body’s Judiciary Committee, and have been strongly opposed by the U.S. Judicial Conference and others.  And yet, these modifications could have very serious consequences – possibly unintended consequences – in habeas cases that are already pending in California and other States. 

The conference report includes a version of the “Combat Methamphetamine Epidemic Act of 2005,” a bill that, like the habeas provisions, is extraneous to the PATRIOT Act reauthorization.  The version in the conference report contains troubling provisions that I wish could have been debated fully before we were forced to vote on them in this context.  A portion of the bill lowers the threshold of the amount of money or drugs necessary for a defendant to qualify as a “kingpin” and to therefore be subject to a mandatory life sentence.  This is an excessively harsh sentence for a pool of people who are not truly drug kingpins.  No one has sympathy for producers and dealers of methamphetamines, but the punishment must fit the crime, and in these cases, mandatory life is disproportionate. 

During early negotiations on the conference report, I fought to strike title II of the House bill, which included provisions that vastly expanded the federal death penalty and removed important protections for the criminally accused.  I already noted one particularly problematic provision, which allowed federal prosecutors a “do-over” whenever they failed to persuade a jury to impose a death sentence.  Another provision was designed to carve out a category of homicides that would be eligible for capital punishment despite the fact that the defendant did not himself kill, intend to kill, or knowingly create a grave risk of death.  Yet another provision would have substantially narrowed the jury’s power to consider, as a reason not to impose the death penalty, the fact that other equally guilty offenders in the same case were escaping such punishment.  These extraneous and ill-considered provisions were ultimately dropped from the conference report, for which we should all be grateful.

House Republicans did, however, insist on keeping other death penalty provisions in the conference report.  The most objectionable of these will revive a small group of pending death penalty prosecutions for aircraft hijacking murders committed in the 1970s and ‘80s.  Specifically, it is designed to overrule the district court decision in United States v. Safarini, which struck the death penalty for a 1986 hijacking offense on the grounds that the Federal Death Penalty Procedures Act of 1994 could not be retroactively applied to a pre-1994 crime, at least absent clear Congressional intent to do so. 

To my knowledge, Congress has never enacted death penalty legislation intended to allow the execution of a tiny number of known offenders for crimes they are alleged to have committed from one to three decades previously.  Whether the government can ultimately persuade the courts that this does not violate the letter of the Ex Post Facto and Bill of Attainder clauses, it certainly violates their spirit.  It is telling that the Department of Justice, in its testimony before the House Judiciary Committee, strongly recommended adding in a severability clause, in case this provision was ultimately held invalid by a court of law.  I share the Department’s skepticism regarding the constitutionality of this wrong-headed provision, and deeply regret its inclusion in the conference report.

The Way Forward

The reauthorization of the PATRIOT Act must have the confidence of the American people.  I believe what we passed in the Senate would have the confidence of the American people.  This conference report would not.

Congress should not rush ahead to enact flawed legislation to meet a deadline that is within our power to extend.  We owe it to the American people to get this right.

The bipartisan bill I introduced with Senator Sununu and others to provide a three-month extension for the expiring provisions of the original PATRIOT Act will give us the time to achieve the best bill for all Americans.

This is a vital debate.  It should be.  These are vital issues to all Americans.  If a brief extension is needed to produce a better bill that would better serve all of our citizens then by all means, let us take that time.

We should not finalize the conference report on the PATRIOT Act without fully addressing the privacy and civil liberties concerns that remain in the conference report.  It is our job in Congress to work as hard as it takes to protect both the security and the freedoms of the people we represent.

A nation built on freedom, as America is, can do better, and if we work together, we will do better.

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