Statement of U.S. Senator Russ Feingold
Remarks as the Senate Considers Ending Debate on Reauthorization
of the USA PATRTIOT Act
As Prepared
December 16, 2005
Mr. President, on Wednesday evening, I laid out in detail my concerns
about the Patriot Act reauthorization bill that we are now considering
on the floor. In its current form, I cannot support the conference report,
and I cannot consent to limit debate on it. The leaders of this Congress
need to figure out a way to change this report to address the important
civil liberties issues that I and other Senators from both sides of
the aisle have discussed over the past three days.
This morning we saw an astounding story in the New York Times. Since
2002, the government has been reportedly wiretapping the international
phone and email conversations of hundreds, even thousands of people
inside the United States, without wiretap orders. You want to talk about
abuses? I can’t imagine a more shocking example of an abuse of
power, to eavesdrop on American citizens without first getting a court
order based on some evidence that they are possibly criminals, terrorists
or spies. Mr. President, it is truly astonishing to read that this Administration
would go this far beyond the bounds of the statutes and the Constitution.
We as an institution have the duty, the obligation, to get to the bottom
of this.
I hope that this morning’s revelation drives home to people that
this body must be absolutely vigilant in our oversight of government
power. And I don’t want to hear again from the Attorney General
or anyone on this floor that this government has shown it can be trusted
to use the power we give it with restraint and care. This shocking revelation
ought to send a chill down the spine of every Senator and every American.
With that in mind, let me review my main concerns about this conference
report.
First, section 215. Remember, this is the section where Attorney General
Ashcroft once said that librarians concerned about the privacy rights
of their patrons were “hysterical.” But then the current
Attorney General conceded at his nomination hearing in the Senate Judiciary
that some changes would be justified. Unfortunately, the Administration
was not willing to make real changes to the provision to protect the
rights and freedoms of innocent Americans.
The other night, I described in detail the evolution of this provision
through the legislative process. The bottom line is this – the
Senate bill had a three prong test requiring some connection between
the records sought and a person suspected of being a terrorist or spy.
The conference report abandoned that connection and instead relies on
a standard of relevance to an intelligence investigation. That is pretty
much an “anything goes” standard that fails to protect the
records of law-abiding Americans. There is no requirement in this conference
report that will prevent government fishing expeditions. Read the provision
and it is as plain as day. The three prong test has been turned into
three examples of relevance. They are not protections at all against
government overreaching.
The provisions of the bill relating to National Security Letters are
also seriously deficient. There is no requirement that the records sought
under that authority, which doesn’t involve a court at all, have
some connection to a suspected terrorist or spy. The judicial review
that the conference report allows after the fact, of the NSL itself
and the mandatory gag order, is a mirage. After what the Times reported
this morning, no one in this body should be comfortable with the government
having this kind of unreviewable power.
Finally, there is the issue of so-called sneak and peek searches, when
the government secretly enters and searches someone’s home. The
question here is when the government has to notify someone that a search
has taken place. The Senate bill allowed seven days for the government
to get back to the court and justify continued delay in providing notice
of a sneak and peek search. The conference report, unfortunately, permits
30-day delays. Some have argued that the difference between a week and
a month is not that big a deal. It is a big deal, Mr. President. We
are talking about an important constitutional right, the Fourth Amendment
protection against unreasonable searches and seizures. No one in this
body should take that right lightly, and I think most people would agree
that having to wait thirty days to find out your home has been secretly
searched is a very big deal.
So this conference report is inadequate and it should not be passed.
I believe it will not pass. So let me talk for a minute about what happens
next if, as I expect, the cloture motion fails. Do those who oppose
the conference report want the Patriot Act to expire? Of course not.
It is false to suggest that we do, and it is shameful to threaten that
that is what will happen if the Senate does not approve this conference
report. The only way that the Patriot Act will expire at the end of
this year is if the proponents of the conference report, in this body
or the other body, block alternative reauthorization bills that can
easily pass with widespread, bipartisan support. Now is not the time
for brinksmanship or threats. Now is the time to do the right thing
for the American people and for the constitutional rights and freedoms
that make our country great.
It is becoming more and more clear that this conference report cannot
pass. So it is time to figure out what can pass. I submit that the Senate
bill is the consensus that we seek. We should pass it again, as we did
by unanimous consent before, and send it to the other body. And we should
with one voice call on the House to pass that bill and send it to the
President for signature. That should have happened months ago and it
is what should happen today.
Mr. President, I am very proud to be part of a bipartisan coalition
working together to strengthen protections for civil liberties in the
Patriot Act. I think the demonstration of bipartisanship on this floor
over the last few days has been remarkable. I remember well a hearing
on the SAFE Act in the last Congress when the Senator from Idaho, Senator
Craig, was still on the Judiciary Committee. He said something that
struck me at the time and has stayed with me since. I don’t have
his exact words here, but he basically said that the Patriot Act will
not be reauthorized without addressing the issues we raised in the SAFE
Act. He was making a prediction and a promise then. And soon I believe
we will see that he was right.
We have stayed together ever since our bill was first introduced. We
knew the time would come when we would have to take a stand. And now
we have. We are united today, as we were then. This is not a partisan
issue. This is an American issue. This is a constitutional issue. We
can come together to give the government the tools it needs to fight
terrorism and protect the rights and freedoms of innocent citizens.
And we can do that before the end of this year. But first, we must keep
this inadequate conference report from becoming law by voting No on
cloture.
I yield the floor.
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