SUNUNU FLOOR STATEMENT ON REAUTHORIZATION
OF THE PATRIOT ACT
Mr. SUNUNU: Let me begin by addressing a concern that was just
raised. It was suggested that if cloture is not invoked tomorrow
that there might not be a 3-month extension and the expiring provisions
of the PATRIOT Act, which are now law, would effectively be killed.
Why would there not be some short-term extension of the PATRIOT
Act of 3 months or 6 months? It would be because some Member of
Congress – I hope no one in the Chamber at the moment –
but some Member of the House or Senate thinks that we will be better
off without a PATRIOT Act, rather than with a 3-month extension.
I suggest, number one, that is absolutely irresponsible, and, number
two, that anyone who would make that argument is suggesting that
the President, Chairman Specter, and the ranking member, Senator
Leahy, are insincere in their suggestion that the tools provided
to law enforcement under the PATRIOT Act are extremely important
tools that law enforcement genuinely needs.
Anyone who would be willing to oppose a temporary extension and
prevent some elements of the PATRIOT Act to remain in force is either
behaving irresponsibly or they are arguing – and it may be
a heartfelt belief on that person’s part – that current
law actually is not as important as they had previously suggested.
I believe everyone can decide for themselves what they think the
likely option, the almost certain option would be if cloture is
not invoked.
With regard to the substantive concerns, there are many. But let
me first address the issue of the National Security Letters. Under
the Conference Report, there is no meaningful judicial review of
a National Security Letter or its accompanying gag order because
the threshold that has to be met by an individual or a business
served with a National Security Letter is a showing of bad faith
on the part of the Federal Government. You will never win that argument
in court. You will never be able to meet that high a threshold.
Therefore, even in the most egregious cases, you will never overturn
the National Security Letter or its accompanying gag order.
The suggestion that this concern is moot because similar language
was in the Senate-passed version is irrelevant because that Senate-passed
version also included a real standard on Section 215 subpoenas,
which required the individual to be connected to a terrorist or
spy; it included a judicial review of the gag order associated with
a 215 order; and it included a 7-day notification period for delayed
notice, or sneak and peak search warrants. All of this, which again,
we approved in the Senate package, has been scrapped.
When we saw the Senate bill, many of us were not happy with that
National Security Letter language. But in that bill we had other
substantial gains for civil liberty protections, and those have
been left at the doorstep by this Conference Report. To come back
and say to us now that our concerns about National Security Letters
do not count because they were part of some previous compromise
that is no longer before us avoids the substantive concerns we have
raised.
There are other problematic provisions that were put into the bill
in conference that were not part of the Senate bill. Under the Conference
Report, you have to tell the FBI if you want to challenge a National
Security Letter or 215. That means you have to tell the FBI you
have hired an attorney and you have to tell the FBI the name of
the attorney.
The PRESIDING OFFICER: The time of the Senator has expired.
Mr. SUNUNU: I ask for 1 additional minute.
Mr. LEAHY: I yield an additional minute.
Mr. SUNUNU: I am not a lawyer. I am an engineer by training. But
I know of no other provision in law where that is required. Even
if it is required in a few very limited cases in law, I believe
this will provide a chilling effect on our right to counsel. I believe
such a requirement is an unnecessary limitation on our civil liberties.
I have one final point about the arguments made by the administration
and by some here in the Senate. The suggestion was made that changes
do not need to be made because there has been no evidence of abuse
of the existing law. We do not seek to insert protections for civil
liberties in law because we do not trust a particular person. The
Framers enacted the Fourth Amendment to the Constitution, not because
they didn’t trust George Washington but because they wanted
to protect these freedoms in perpetuity.
I yield the remainder of my time.
THE PRESIDING OFFICER: The time of the Senator has expired.
The Senator from Pennsylvania is recognized.
Mr. SPECTER: Mr. President, the Senator from New Hampshire is
wrong on what this law provides. When he picks up the National Security
Letter and says it may be challenged only on the bad faith requirement,
he is wrong. There may be a challenge and the National Security
Letter may be quashed under the express terms of the Conference
Report if it is unreasonable or oppressive. The National Security
Letter was not created by the PATRIOT Act, but we took this occasion
to put civil liberty safeguards in this bill on the National Security
Letter by eliminating the prohibition against consulting with a
lawyer. Today, if you get a National Security Letter, you can’t
talk to a lawyer.
Today, you get a National Security Letter, and you can’t talk
to a lawyer. The Conference Report gives an explicit right to talk
to a lawyer. There had been a provision that before you talked to
a lawyer you had to tell the FBI who the lawyer was. Senator Leahy
raised an objection to that point, and he was right, and it was
corrected. Yet if the FBI asks you who your lawyer is, then you
have to tell them. But you don’t have to go to the FBI first
and disclose who your lawyer is.
But there are significant changes in the Conference Report beyond
the bad-faith issue that the Senator from New Hampshire talks about,
and we ought to recognize that. But this Conference Report goes
a long way to protect civil liberties by specifically saying you
can go to a lawyer and get it quashed for certain reasons.
As to the bad-faith requirement, the Senator from New Hampshire
skims lightly over the fact that the Senate bill was even tougher
than the Conference Report by going on to other sections. That is
obscuring the issue. Take up the bad-faith requirement. I already
read it a couple of times, this morning and on Monday and on Tuesday.
But the Senate language was identical.
But the Conference Report is more protective of civil liberties
because, while the Senate bill said the Government had to certify
anybody in the government, the Conference Report requires a ranking
official.
But the Senator from New Hampshire then skips over to the 7-day
requirement on notification.
There is already a protection of civil rights because the court
has to make a finding that the delayed notice is important to the
investigation, or will hinder the investigation.
To have the Fourth Circuit saying “45 days” when you
have the current law saying “reasonable,” which could
be anything, as a bargaining matter, we come with the Senate report
at 7 and the House is at 180. We compromised at 30, and I think
that is not unacceptable. Is it what Arlen Specter would like, or
what Senator Sununu would like?
But when the Senator from New Hampshire talks about getting an agreement
where the House and Senate disagrees and you have an impasse, you
don’t have a bill.
Chairman Sensenbrenner went the extra mile. Is he going to go further?
That is a big question. If there is an impasse, there is no bill.
To repeat, if cloture is not invoked, we don’t have a bill,
and I will go back to work. I will go back to the drawing board,
and I will try to get a bill. But that doesn’t say that there
will be a bill when the majority leader has said he is not going
to take up an extension and you have to get agreement from the House.
On the Section 215 provision, the Conference Report does give additional
leeway beyond the three-pronged test. But we still have judicial
review which you do not have today; and that is the traditional
way of interposing the impartial magistrate between the citizen,
on the one hand, and the law enforcement officers on the other.
There have to be many hurdles gone through to get a terrorism investigation
authorized. It is only a terrorism investigation where the court
can allow the latitude to get somebody’s records where it
is important to the investigation.
I yield the floor.
The PRESIDING OFFICER: The Senator from New Hampshire.
Mr. SUNUNU: Mr. President, I ask to be yielded 1 ½ minutes.
Mr. LEAHY: I yield 2 minutes.
The PRESIDING OFFICER: The Senator is recognized.
Mr. SUNUNU: Mr. President, I want to be courteous to my colleagues
who wish also to speak, so I will briefly address a couple of the
points raised.
First, I never suggested that the ability, allowed under the Conference
Report, to hire a lawyer to challenge an NSL is an improvement.
I am for that. I don’t know that is some great show of benevolence
of the Federal Government that now for the first time you will actually
be allowed to contact a lawyer if you are served with a National
Security Letter. So I appreciate that. But this is about much more
than that simple fact.
Judicial review is important. But to have a meaningful judicial
review you have to have at least a threshold, that the recipient
of a NSL may actually be able to achieve. I suggest that the showing
of oppressive or abusive behavior by the Federal Government, the
showing of bad faith, is simply too high a threshold to make that
judicial review process meaningful.
Finally, I come back to the suggestion that if this bill fails on
cloture, we will not have a bill, and portions of the PATRIOT Act
and the lone wolf provision will expire. I do not take that to mean
that the Senator from Pennsylvania will not support a 3-month extension.
I hope and I believe that he would in such an event. I hope and
believe that the House would support such an extension of the expiring
provisions because having them remain in place on a short term basis
of 3 months or 6 months, is much more important than having these
provisions expire.
If those who do not agree with my opposition to cloture on the Conference
Report really think they will have no bill, then obviously their
arguments that the PATRIOT Act is a very important piece of legislation
don’t have credibility.
I yield the floor.
Mr. SPECTER: Mr. President, when the Senator from New Hampshire
talks about a high bar for upsetting a National Security Letter,
he overlooks the provision that you can quash, if it is unreasonable.
If the judge finds it unreasonable, is that too high a bar?
Mr. SUNUNU: Mr. President, I will address the question and the concern.
I think the threshold is too high. But I would prefer that time
be provided to others – there are a number of others on the
floor – who support my position and oppose cloture.
Mr. SPECTER: On my time, I redirect to the question the Senator
from New Hampshire who says the bar is too high.
Is it a high bar to quash a National Security Letter, if a court
finds it unreasonable?
MR. SUNUNU: Mr. President, that is not the only basis on which these
will be reviewed. The National Security Letter and the gag order
require showing of bad faith on the part of the Government. I believe
that standard as written in the Conference Report will prove to
be too great of a threshold for individuals or businesses to have
any reasonable chance of meeting. We have had 30,000 National Security
Letters issued. To the best of my knowledge, none of them have been
overturned. I think we owe the public a clear, reasonable, and pragmatic
standard in order for those to be overturned. I do not believe this
Conference Report includes such a standard.
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