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.