SUNUNU FLOOR STATEMENT REGARDING
REAUTHORIZATION OF THE PATRIOT ACT

Mr. President, today I come to the floor to speak about the pending reauthorization, extension of the PATRIOT Act, the legislation passed in the wake of the September 11 attacks. This debate is fraught with emotion because we were all outraged at what happened on September 11. Everyone in America and around the world shares a desire to address the threat of global terrorism, to give law enforcement appropriate powers to pursue those terrorists. But we want to make sure in doing so we pass legislation that is in keeping with the principles on which our country was founded--principles of individual liberty and freedom.

   Ultimately, this debate about renewing, extending the PATRIOT Act is about police powers, the power that the people, through their elected representatives, give to government, give to agents of government. Whether it is at the State, local, or Federal level, we give certain police powers to government to conduct searches. We give the government power to detain individuals. We give the government power to serve subpoenas, to confiscate records. We do it because we think ultimately it is in the public interest to do so. But just as the Framers recognized, we need to provide a balance, to balance these very forceful, very powerful tools with personal freedom, civil liberty.

   So as a result, we require the government, or government agents, to show cause before they conduct a search. We set standards for evidence in a courtroom. They need to meet certain standards of evidence to conduct a search, certain standards of evidence to detain an individual or a suspect. And, of course, we have the principle of due process, trial by jury, and the ability to have an appeal heard in a court of law.

   Some people may say: We know that. These are fundamental. These are basic to our system of justice. But it is important that we are reminded of these basic principles if we are going to get the reauthorization and the extension of the PATRIOT Act correct.

   This is not a new set of issues. These are the very issues contemplated by the Framers. In many respects, these police powers are issues that alarmed the Framers--and I say alarmed because they were so concerned about the powers of Government and the powers of the State that they wrote specific protections into the Constitution. The fourth amendment, protecting from unreasonable search and seizure, specifically addresses the threshold of probable cause, that the Government shall show probable cause before it conducts search and seizure of personal property.

   The fifth amendment protects us from self-incrimination. We have all seen enough Perry Mason to understand what it means to invoke one's rights under the fifth amendment. It speaks specifically about due process and the right to an open, fair due process when one is being prosecuted, whether it is for a criminal act or whether we are prosecuting one of these powers of search and seizure, a power of the State to issue a search warrant.

   The sixth amendment speaks specifically about a right to a trial and what it means to have one's case heard before a jury or in a court of law. All of these amendments and others, but these three in particular, speak directly to balancing the rights of individuals and the liberty of individuals with the powers of the State.

   The Framers were, quite frankly, very distrustful of Government and the power of the Federal Government. I try to be a little less pessimistic in my work in the Senate, but I must be frank with my colleagues in stating that on this issue, on the PATRIOT Act, I have begun this debate more from a position of mistrust and concern about the work that had been done in preparation for this reauthorization and the position taken by the administration. I will speak to that in a moment, but it is important to note that on the Senate side we had bipartisan agreement and on the Senate side we had terrific leadership by Senator Specter on these issues. He understands this balance probably as well as anyone in the Senate. I do not fault his work as a chairman and certainly not the work of the Senate as a whole, given that we had incorporated a number of protections in our legislation.

   The Justice Department began this process well over a year ago, taking the position that we should make all the provisions of the PATRIOT Act permanent and we should not make any changes, we did not need to make any changes. This is legislation that was passed just 6 weeks after September 11. I would not say it was passed in haste, but it was passed during a very difficult and emotional time in our country's history. We had sunsets on 16 provisions in the PATRIOT Act for just that reason. We knew there was a lot of uncertainty as to how this war on terrorism would progress, what tools law enforcement really did need to pursue legitimate terrorist suspects, what we needed to do to get our hands around financial records or other financial transactions that might lead investigators to uncover terrorist cells in America or around the world.

   Anyone who understands the legislative process knows that was not a perfect bill, no matter how hard people worked on it. To suggest that when it came time for reauthorization there would be no need for changes I believe suggests a lack of understanding of the process of Congress, the legislative process, and how things get put together on Capitol Hill, or lack of understanding about the substance in the bill, not understanding all the provisions in the bill and how they did in some cases unnecessarily infringe on civil liberties, or perhaps an arrogance that leadership, those who were responsible for providing leadership within the Justice Department, knew they were not abusing any of the provisions in the law so no changes needed to be made. I will speak to that argument shortly, but I think it is very unfortunate.

   So when one has this kind of legislation, as sweeping in scope as this is, and suggests when it comes time to deal with these sunset provisions that no changes need to be made, I think shows a lack of substantive reflection on the balance between the police powers of the State I spoke about and civil liberties on the other hand.

   Two years ago, I joined with a number of my colleagues in introducing the SAFE Act: Senators DURBIN, SALAZAR, and FEINGOLD on the Democratic side, Senators CRAIG, MURKOWSKI, and myself on the Republican side. We spoke specifically to a few provisions in the PATRIOT Act where we thought we could do a better job of protecting civil liberties.

   The 215 section that allows the subpoena of business or library records, the national security letter provision--the national security letter is a sweeping order issued without the approval of a judge that gives investigators access to financial data, to medical data, or to other transaction records; the roving wiretap provision that is necessary because we have new communication technologies that are more mobile than ever but where we still need to do a good job of specifying who the target is of that roving wiretap; delayed search warrants--again, sometimes there is going to be a need for conducting a search warrant before notifying a target so that the investigation is not jeopardized. But we should have specific provisions written in the law for notifying that target after a certain period of time. As it was written, there was no period specified for notification.

   Of course, the idea of sunsets is important to civil liberties anytime one is dealing with law enforcement legislation, because a sunset calls on Congress to come back, look at how a law was used, look at how it was implemented, how it affected civil liberties, and make appropriate changes.

   I ask unanimous consent to speak for an additional 10 minutes.

   The PRESIDING OFFICER. The Senator from Vermont.

   Mr. LEAHY. Mr. President, I have no objection. I add to that consent that I would then follow the distinguished Senator from New Hampshire on the same subject.

   Mr. SUNUNU: I so modify my request.

   Mr. ALEXANDER. Reserving the right to object, I ask unanimous consent to follow the distinguished Senator from Vermont.

   The PRESIDING OFFICER. Is there objection?

   Without objection, it is so ordered.

   Mr. SUNUNU . We introduced the SAFE Act to deal with very specific areas where we thought the PATRIOT Act needed to be improved to better protect civil liberties. Some would argue that with the PATRIOT Act, as it has been rewritten, the conference agreement, that there were only a few areas now where there is a disagreement and so we ought to accept it as it is. I make a broad argument, though, that simply because we are conducting shortcuts on civil liberties in only a few areas is simply not an effective argument. I think where civil liberties are concerned, as I illustrated with the Framers' concerns, we ought to do everything in our power to make sure proper protection is provided.

   A few key points about the weaknesses that remain in the PATRIOT Act, and with these weaknesses I will not be able to support the final conference report. I certainly will not support moving forward with the conference report, in part because I think these are substantive problems but also because they are problems that should be easily addressed in a reworked conference agreement. The first deals with the business and libraries provision, section 215. In section 215 we have established a very broad standard, too broad a standard, for investigators to get access to sensitive records--whether it is at a business or a library; it makes no difference. The standard is that the records simply be shown as relevant to an investigation. That does not sound inappropriate, but as a legal standard that means records could be subpoenaed that have no direct connection to a particular suspect.

   As a result, the records of many innocent Americans, or the burden placed on businesses to continually produce records under this provision is going to be far too onerous.

   There is also associated with this provision, this business records subpoena power, a permanent automatic gag order that prevents you from discussing the fact that this order has been issued to you as an individual or your business, and there is no judicial review of that gag order. I think this is a fundamental flaw in this conference report, the idea that you have been served with a permanent gag order to restrict your free speech, to restrict you from talking about that gag order, and it is permanent and you have no ability to appeal it in a court of law.

   I would argue that taking your case, your appeal before a judge is fundamental to our system of justice in the United States of America. I would further argue that it in no way undermines law enforcement's ability to conduct an investigation to give the business or the individual the opportunity to appeal that gag order in a court of law. The argument that it might cost a little bit extra is ridiculous in the face of the need to protect individual civil liberties.

   The system of judicial review for these section 215 subpoenas simply is not acceptable. Similarly, the system of judicial review on national security letters fails to meet the important test of balancing individual civil liberties. There is a very low threshold for getting a national security letter. It is not approved by a judge. The threshold is merely a ``showing of relevance,'' once again not a direct connection to a suspect, which is very problematic. Moreover, the threshold for overturning the gag order--again a restriction on the ability to even discuss the national security letter--is that you must show bad faith on the part of the Federal Government. That is virtually impossible. No individual, no business served with a national security letter will effectively be able to show bad faith on the part of the Federal Government, and therefore they will never have a national security letter or its accompanying gag order overturned.

   To have meaningful judicial review you have to have a meaningful standard, a reasonable standard of showing in that court of law. I think it is fair to say, if we look around the world at different governments' attempts to eviscerate the power of due process, this is one way to do it--to have judicial review, to ``let people have their case in court of law,'' but set the standard of evidence or the standard for overturning an egregious decision so high that the government always wins. That is simply not acceptable where American civil liberties are concerned.

   Finally, let me turn to a few of the arguments posed or made to individuals, such as Senator Leahy or Senator Feingold or me, who have brought forward these objections. One argument is what I would describe as a very broad argument, that we need to extend the PATRIOT Act, we need to fight terrorism, we need to make sure we don't undermine the ability of law enforcement in their work to deal with terrorist threats. I agree. Senator Leahy--I will take the opportunity to speak for my colleague from Vermont. He agrees we need to do all of these things. But that is not a substantive argument for not making these changes he and I support. We are all for fighting terrorism. We are all for extending the PATRIOT Act. I do not oppose the idea of subpoenaing business records or even library records or the idea of a national security letter. What I oppose is having such a powerful government force in place without countervailing protections for civil liberties.

   A second argument is one I mentioned earlier: for the Justice Department to say we have not abused any provisions in the current PATRIOT Act so just extend them all as written. It doesn't matter to me whether it is a Democratic administration or Republican administration, the argument that you have not abused a poorly written law is no argument at all for extending and making permanent that poorly written law. If it does not protect civil liberties, we should modify it. We should make sure the protections are there so that no matter who holds the reins of power, in the executive or the legislative or the judicial branches of Government, those freedoms continue to be protected.

   A third argument is if we do not move forward, if this bill fails to get a cloture vote this week and it goes back to conference, it will only get worse. Let me get this straight. If you vote against a bill that doesn't adequately protect civil liberties, we are going to take it back to conference and compromise civil liberties even further? I think that is an outrageous argument to make. I think there are some people who are making it, or who have made it, who do not intend it to be taken that way. But I think it is only fair that it be taken that way. That is an inappropriate threat. If the attitude of the conferees is they will further restrict civil liberties if they do not get this poorly written bill passed, then perhaps no law is better.

   I do not believe that. I think there ought to be a willingness to make improvements. Again, there are no specific reasons for how these changes that I have described--judicial review of a 215 gag order, a better threshold for overturning an NSL there is no substantive argument that I have heard for how these would undermine law enforcement's ability to pursue terrorists. These arguments simply do not hold up.

   Benjamin Franklin, 200 years ago, observed that:

   Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety.

   Those words are as true today as they were over 200 years ago. There is no reason to compromise the right to due process, the right to a judicial review, to fair and reasonable standards of evidence, in the pursuit of our security and the pursuit of terrorists wherever they may be around the world. I think making these changes is reasonable. They are fair.

   I have joined with Senator Leahy in introducing a 3-month extension of the existing PATRIOT Act to ensure that we have plenty of time, in a reasonable and thoughtful way, to make very modest changes that would go a long way toward ensuring this is a better bill, that it is a bill that we can be proud of, and a bill that will protect civil liberties.