国会纪录：2004年4月7日（参议院）Page S3898-S3914安全行为德国先生。主席先生，我今天上升，敦促我的同事向Cosponsor S. 1709，安全和自由确保法案，安全行为，Senator Larry Craig和我从过道的两边引入了一些同事。安全法案是一个狭隘量身定制的法案，可以修改美国爱国者法案的若干规定。它将保障无辜的美国人的权利而不阻碍执法的抗击恐怖主义的能力。安全行为由来自政治频谱的广泛组织和个人联盟支持。我挑战任何一位同事，为我们为安全法案找到的几乎任何条例草案找到了广泛的政治支持基础。我投票赞成了爱国者法案。我相信，我仍然相信该法案在法律中作出了许多合理和必要的变化。但是，“爱国者法”载有几项规定，不充分保护无罪的美国人免受无罪的政府监督。FBI现在有广泛的权威，以获得一个“John Doe”的粗纱，这不会识别被挖掘的人或地点。 The FBI has authority now to conduct sneak-and-peek searches and to seize personal records. The PATRIOT Act was passed at a critical moment in the history of the United States. It was a moment of tragedy and fear. Now with more than 2 years of hindsight and experience, it is time to revisit this law. I can recall--and I am sure all who followed this debate can remember--how we felt after September 11. Just a few steps away from this Chamber, I was meeting in a room with Senator Daschle and a group of Senators and we saw on television the images which every American has seared in their memory. Then someone suggested a bomb had gone off at the Pentagon. We gathered by the windows and looked down this beautiful Mall toward the Washington Monument and saw black smoke billowing across the Potomac, unaware at that moment another airplane had struck that building, killing many innocent Americans. It was a time of great concern and great anxiety and great unity. The administration came to us and said to the Congress, Give us the tools to find the people responsible for this terrible American tragedy. Give us what we need to protect Americans and to fight the war on terrorism. In a rare showing of bipartisan support, Democrats and Republicans came together and addressed some of the most difficult and complicated questions about Government authority and [[Page S3899]] individual freedom we have had to address in our history. I am proud to say in a short period of time there was a bipartisan consensus, a consensus which tried to work out the best way to meet the requirements of the administration and to make America safe. Many of these provisions were worrisome. We were not certain whether we had gone too far in giving the Government more authority and Americans fewer freedoms than necessary. So we included in the PATRIOT Act sunset provisions. Basically, what that means is that over some period of time, a year or two, these provisions would expire and be subject to renewal and reapproval by Congress. Of course, at that point we would be forced to assess their impact. Interestingly, since that day, from some quarters, the volume has grown in support of basically eliminating the sunset provisions and saying this will be permanent law and we will not revisit it. However, many have looked at the PATRIOT Act, including Senator Craig and myself, and feel there are four specific areas of the Act that should be amended by our SAFE Act. Senator Craig, a Republican, and myself, as a Democrat, reached across the partisan divide to work together on this bill. It is quite an unusual political marriage. Senator John Sununu, also a cosponsor, joked that when Senator Craig and Senator Durbin introduce a bill together, it proves one thing: One of them must not have read it. Well, that is not true. We have both read the SAFE Act. Our cooperation on this piece of legislation speaks volumes about the need to make changes in the PATRIOT Act. Some claim because we are at war, the American people want the Government to keep them safe, no matter what. I think they are wrong. The American people care very deeply about their freedoms. They are watching Congress carefully and they are concerned that perhaps in some areas we went too far in passing the PATRIOT Act. I have heard from a lot of my constituents. 275 communities in 39 states have passed resolutions expressing concern about the provisions of the PATRIOT Act. These communities represent close to 50 million Americans. Almost one out of every six Americans has, through their elected representatives in their communities, expressed some concern about the provisions of the PATRIOT Act. Let me be very frank about the bill itself. The PATRIOT Act was over 130 pages long. It is very complicated. Most Americans have not read every word of it. Many Americans who may not be able to explain the exact details of the PATRIOT Act still are concerned it is restricting their freedoms unnecessarily. Some argue this means we should not take the American people so seriously because they cannot cite specific sections of the bill. I disagree. There is no reason to dismiss these public concerns. And this is no excuse for inaction. The burden of proof is not on the American people when the Government seeks to take away their rights and liberties. The burden of proof is on the Government. What is clear is the American people want us to strike a balance, give the FBI and law enforcement and intelligence agencies the powers they need to fight terrorism but also to protect American liberty. That is what the SAFE Act would do. An unusual thing has occurred with the introduction of this bill. I have been on Capitol Hill for over two decades working in the House and in the Senate. I have never seen this happen before. The Bush administration announced with the introduction of the bill they would veto it. The bill has not been considered before a committee. It has not been subject to amendment in committee. It has not been debated in committee. It has not come to the floor of the House or the Senate, nor has it been subject to debate and amendment there. There is no final work product, only the initial offering by Senator Craig and myself. Based on that and that alone, the Bush administration has said they are going to oppose this bill and they are going to veto this bill. I have never seen anything quite like that. The Justice Department argues our bill would eliminate some PATRIOT Act powers and make it even more difficult to effectively fight terrorism. Frankly, these objections do not hold water. The SAFE Act neither repeals any provision of the PATRIOT Act nor amends pre-PATRIOT Act law. In fact, the SAFE Act retains the expanded powers created by the PATRIOT Act while placing important checks on these powers. Senator Craig and I wrote a letter responding in detail to the Justice Department's objections to the bill and their threat to veto the bill, which has not even passed either the House or the Senate. I ask unanimous consent that this letter be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: U.S. Senate, Committee on the Judiciary, Washington, DC, February 23, 2004. Hon. Orrin G. Hatch, Chairman, Senate Committee on the Judiciary, Hart Senate Office Building, Washington, DC. Dear Mr. Chairman: We write to request that you schedule a hearing in the Judiciary Committee as soon as possible on S. 1709, the Security and Freedom Ensured (SAFE) Act, a narrowly-tailored, bipartisan bill that would amend several provisions of the USA PATRIOT Act (P.L. 107-56). We would also like to take this opportunity to respond to concerns the Justice Department has raised regarding the SAFE Act. We voted for the PATRIOT Act and believe now, as we did then, that the PATRIOT Act made many reasonable and necessary changes in the law. However, the PATRIOT Act contains several provisions that create unnecessary risks that the activities of innocent Americans may be monitored without adequate judicial oversight. This concern is shared by a broad coalition of organizations and individuals from across the political spectrum. In fact, 257 communities in 38 states--representing approximately 43.5 million people--have passed resolutions opposing or expressing concern about the PATRIOT Act. Groups as politically diverse as the ACLU and the American Conservation Union have also endorsed changes in the law. In his State of the Union address, the President called for reauthorization of the PATRIOT Act. Given the bipartisan concerns about the most controversial provisions of the law, however, this will not happen unless these provisions are revisited. Congress, in fact, made oversight of the PATRIOT Act implicit by sunsetting over a dozen sections of the bill at the time of its passage. S. 1709, the SAFE Act, was drafted with this oversight in mind. It was drafted to clarify and amend in a minor way the PATRIOT Act's most troubling provisions so that whole or even piecemeal repeal of the law would be unnecessary. It was drafted to safeguard the liberties of law-abiding citizens while preserving the law enforcement authorities essential to a successful war on terror. The Administration unfortunately has threatened to veto the SAFE Act. The Justice Department argues that the SAFE Act would ``eliminate'' some PATRIOT tools and ``make it even more difficult to mount an effective anti-terror campaign than it was before the PATRIOT Act was passed.'' We respectfully disagree with the Justice Department's objections to our reasoned and measured effort to mend the PATRIOT Act. The SAFE Act neither repeals any provision of the PATRIOT Act, nor impedes law enforcement's ability to investigate terrorism by amending pre-PATRIOT Act law. Rather, the SAFE Act retains the expanded powers created by the PATRIOT Act while restoring important checks and balances on powers including roving wiretaps, ``sneak and peek'' warrants, compelled production of personal records, and National Security Letters. Roving Wiretaps The SAFE Act would place reasonable checks on the use of roving wiretaps for intelligence purposes. Normally, when the government seeks a warrant authorizing a wiretap, its application must specify both the target (the individual) and the facilities (the telephone or computer) that will be tapped. Roving wiretaps, which do not require the government to specify the facilities to be tapped, are designed to allow law enforcement to tract targets who evade surveillance by frequently changing facilities. Before the PATRIOT Act, roving wiretaps were only permitted for criminal, not intelligence, investigations. The PATRIOT Act authorized the FBI to use roving wiretaps for intelligence purposes for the first time. Using roving wiretaps for intelligence purposes is important. Unfortunately, the PATRIOT Act did not include sufficient checks to protect innocent Americans from unwarranted government surveillance. Under the PATRIOT Act, the FBI is not required to determine whether the target of the wiretap is present at the place being wiretapped, as it is for criminal wiretaps. The Intelligence Authorization Act of 2002 made another dramatic change in the law. The FBI is now permitted to obtain a ``John Doe'' roving wiretap for intelligence purposes, an authority not authorized in any other context. A ``John Doe'' roving wiretap does not specify the target of the wiretap or [[Page S3900]] the place to be wiretapped. In other words, the FBI can obtain a wiretap without saying whom they want to wiretap or where they want to wiretap. The Justice Department defends this authority by noting that even if the target of the wiretap is not identified, a description of the target is required. The law does not require the description to include any specific level of detail, however. It could be as broad as, for example, ``white man'' or ``Hispanic woman.'' Such a general description does not adequately protect innocent Americans from unwarranted government surveillance. The SAFE Act would retain the PATRIOT Act's authorization of roving wiretaps for intelligence purposes but impose reasonable limits on this authority. Law enforcement would be required to ascertain the presence of the target before beginning surveillance and identify either the target of the wiretap or the place to be wiretapped. The FBI would not be able to obtain ``John Doe'' roving wiretaps, thereby ensuring that the government does not surveil innocent Americans who are not the target of the wiretap. The Justice Department argues that ``John Don'' roving wiretaps are necessary because there may be circumstances where the government knows a target's physical description but not his identity. If the government is tracking a suspect closely enough to utilize a wiretap, it is unlikely his or her identity will be unknown to them. In this unusual circumstance, the SAFE Act would permit the issuance of a ``John Doe'' wiretap which would not identify the target but rather the facilities to be wiretapped. If the government wished to obtain a roving wiretap, they could do so by identifying the target. It is important to note that the government is not required to identify the target by his or her actual name. The government, for example, could identify the target by an alias. This level of detail should be required to make clear who is being targeted to prevent innocent people with no relationship to the target from being spied upon. ``sneak and peek'' searches The SAFE Act would impose reasonable limits on the issuance of delayed notification (or ``sneak and peek'') search warrants. A sneak and peek warrant permits law enforcement to conduct a search without notifying the target until sometime after the search has occurred. The Justice Department argues that sneak and peek warrants for physical evidence ``had been available for decades before the PATRIOT Act was passed,'' but such warrants were never statutorily authorized before the passage of the PATRIOT Act. Too, though some courts have permitted sneak and peek warrants in limited circumstances, the Supreme Court has never ruled on their constitutionality. In codifying sneak and peek warrants, Section 213 of the PATRIOT Act did not adopt limitations on this authority that courts had recognized. For example, courts have required a presumptive seven-day limit on the delay of notice. Section 213 requires notice of the search within ``a reasonable period,'' which is not defined. According to the Justice Department, this has resulted in delays of up to 90 days, and of ``unspecified duration lasting until the indictment was unsealed.'' Section 213 authorizes issuance of a sneak and peek warrant where it finds that providing immediate notice of the warrant would have an ``adverse result,'' as defined by 18 U.S.C. Section 2705. Section 2705, which allows delayed notice for searches of stored wire and electronic communications, defines adverse result very broadly, including any circumstances ``otherwise seriously jeopardizing an investigation or unduly delaying a trial.'' This catch-all provision could arguably apply in almost every case. A sneak and peek search of a home involves a much greater degree of intrusiveness than a seizure of wire or electronic communications, so this broad standard for delaying notice is inappropriate. Section 213 also does not limit delayed notification warrants to terrorism investigations, and unlike many surveillance-related PATRIOT Act provisions, does not sunset. Last year, an overwhelming majority in the House of Representatives voted to repeal Section 213. The SAFE Act would not go nearly this far. It would place modest limits on the government's ability to obtain sneak and peek warrants, while still permitting broad use of this authority. The SAFE Act would still authorize a sneak and peek warrant in a broad set of specific circumstances: where notice of the warrant would endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant. Importantly, it would eliminate the catch- all authorization of sneak and peek authority in any circumstances ``otherwise seriously jeopardizing an investigation or unduly delaying a trial.'' It would require notification of a covert search within seven days, but would authorize unlimited additional seven-day delays so long as any circumstance that would justify a delay of notice continues to exist. According to the Justice Department, ``the most common period of delay'' under Section 213 is seven days, so a seven-day limit with court-authorized extensions is not overly onerous but would prevent abuse. The Justice Department states that the SAFE Act imposes restrictions on the issuance of sneak and peek warrants that could tip off terrorists, and ``thus enable their associates to go into hiding, flee, change their plans, or even accelerate their plots.'' To the contrary, the SAFE Act would authorize issuance of a sneak and peek warrant in all of these circumstances. If notice of the warrant could lead terrorists or their associates to hide or flee, a court could delay notice to prevent flight from prosecution. If notice of the warrant could lead terrorists or their associates to change or accelerate their plots, a court could delay notice to prevent the resulting danger to life or physical safety. The Constitution protects the sanctity of our homes, and we should only allow this sanctity to be breached in such serious circumstances. Compelled Production of Personal Records The SAFE Act would place reasonable checks on the government's authority to compel production of library and other personal records. Section 215 of the PATRIOT Act permits law enforcement to obtain such records without individualized suspicion and with minimal judicial oversight. Before the PATRIOT Act, FISA authorized the FBI to seek a court order for the production of records from four types of businesses: common carriers, public accommodations facilities, physical storage facilities, and vehicle rental facilities. In order to obtain such records, the FBI was required to state specific and articulable facts showing reason to believe that the person to whom the records relate was a terrorist or a spy. If a court found that there were such facts, it would issue the order. Under FISA as modified by Section 215, the FBI is authorized to compel production of ``any tangible things (including books, records, papers, documents, and other items)'' not just records, from any entity, not just the four types of businesses previously covered. The FBI is only required to certify that the records are ``sought for'' an international terrorism or intelligence investigation, a standard even lower than relevance. The FBI need not show that the documents relate to a suspected terrorist or spy. If the FBI makes the required certification, the court no longer has the authority to examine the accuracy of the certification or ask for more facts to support it; the court ``shall'' issue the order. Defenders of Section 215 frequently assert that the issuance of an order for records requires court approval, but this type of court approval amounts to little more than a rubber stamp. The PATRIOT Act gives the government too much power to seize the personal records of innocent Americans who are not suspected of involvement in terrorism or espionage. The SAFE Act retains the PATRIOT Act's expansion of the business records provision to cover ``any tangible things'' and any entity. It would reinstate the pre-PATRIOT Act standard for compelling production of business records, which requires individualized suspicion. The FBI would be required to certify that there are specific and articulable facts giving reason to believe that the person to whom the records relate is a terrorist or a spy. A court would be required to issue the order if it found that there are such facts. The SAFE Act would thus prevent broad fishing expeditions which waste scarce government resources, are unlikely to produce useful information, and can infringe upon privacy rights. The Justice Department argues that this standard is inappropriate because it is higher than the relevance standard under which federal grand juries can subpoena records. This ignores some crucial distinctions. The recipient of a grand jury subpoena can challenge the subpoena in court and tell others, including those whose records are sought, about the subpoena. In contrast, the recipient of a Section 215 subpoena cannot challenge the subpoena in court and is subject to a gag order. The scope of a federal grand jury is limited to specific crimes, while an intelligence investigation is not so limited. Finally, it is very important to note that, in the more than two years since the passage of the PATRIOT Act, Section 215 has never been used. If the authority has never been used during this time of great national peril, it is difficult to understand how imposing some reasonable checks on it could cripple the war on terrorism. Indeed, the government offers no examples, real or imagined, in which the SAFE Act's revisions of Section 215 would hinder counterterrorism efforts. national security letters The SAFE Act would impose reasonable limits on the issuance of National Security Letters (NSLs). Section 505 of the PATRIOT Act allows the FBI to use NSLs to obtain personal records without individualized suspicion. An NSL is a document signed by an FBI agent requiring disclosure of financial, credit and other personal information and requiring the recipient not to disclose the request to the individual whose records are being sought. It does not require judicial or grand jury approval. Before the PATRIOT Act, the FBI could issue an NSL to obtain records from a wire or electronic communication service provider by certifying that it had reason to believe that the person to whom the records relate is a terrorist or a spy. The approval of FBI headquarters was required. Section 505 of the PATRIOT allows the FBI to issue an NSL simply by certifying that the records are ``sought for'' a terrorism or intelligence investigation, regardless of whether the target is a suspect. Headquarters approval is no longer required. Unlike many other surveillance-related PATRIOT Act provisions, the expanded NSL authority does not sunset. [[Page S3901]] The SAFE Act would retain the PATRIOT Act's lower standard for the issuance of NSLs and its delegation of issuing authority to field offices. It would simply clarify that a library is not a ``wire or communication service provider,'' which from the plain meaning of the words, it is not. The FBI could still obtain information regarding e-mails or other communications that took place at libraries by issuing an NSL to the library's wire or communication service provider. The Justice Department states that the SAFE Act would ``extend a greater degree of privacy to activities that occur in a public place than to those taking place in the home.'' We disagree. The SAFE Act would simply ensure that the FBI issues the NSL to the service provider, which is the appropriate recipient, rather than a community library, which is ill-equipped to respond to such a request. expanding the sunset clause The SAFE Act would expand the sunset clause of the PATRIOT Act to ensure Congress has an opportunity to review provisions of the bill that greatly expand the government's authority to conduct surveillance on Americans. Many of the PATRIOT Act's surveillance provisions sunset on December 31, 2005. The SAFE Act would sunset four additional surveillance provisions: Sections 213, 216, 219, and 505. We have already discussed Sections 213 (sneak and peek warrants) and 505 (national security letters). Section 216 allows the use of surveillance devices known as pen registers and trap and trace devices to gather transactional information about electronic communications (e.g., e-mail) if the government certifies the information likely to be gathered is ``relevant'' to an ongoing criminal investigation. The information the government gathers is ``not to include the contents'' of communications, but content is not defined. Section 219 permits a federal judge in any district in the country in which ``activities related to terrorism may have occurred'' to issue a nationwide search warrant in a terrorism investigation. The target of such a search warrant has no ability to challenge the warrant in their home district. The SAFE Act would simply give Congress an opportunity to assess the effectiveness of these four provisions before deciding whether or not to reauthorize them. The Justice Department argues that Congress should not expand the sunset to these authorities because they will all be needed by the FBI for ``the foreseeable future.'' Even if this is true, it is no reason not to give Congress the chance to review the usefulness of these powers. If they are needed for the fight on terrorism, we will surely renew them. Throughout American history, during times of war, civil liberties have been restricted in the name of security. We therefore have the responsibility to proceed cautiously. During the Civil War, President Lincoln suspended habeas corpus, and during World War II, President Roosevelt ordered the detention of Japanese Americans in internment camps. We must be vigilant in our defense of our freedoms. But we also must ensure that law enforcement has sufficient authority to combat the grave threat of terrorism. We must strike a careful balance between the law enforcement power needed to combat terrorism and the legal protections required to safeguard American liberties. That is what the SAFE Act would do. While we are disappointed that the Administration has expressed disagreement with the SAFE Act, we view this as an opportunity for increased public discussion of one of the most important issues of our day. Accordingly, we request that you schedule a hearing on the SAFE Act as soon as possible. Thank you for your time and consideration. Sincerely, Larry E. Craig, U.S. Senator. Richard J. Durbin U.S. Senator. Mr. DURBIN. Mr. President, let me cut through some of the rhetoric and tell you what the SAFE Act does. The SAFE Act would place reasonable checks on what are known as roving wiretaps. Typically, when the Government seeks a warrant authorizing a wiretap, its application must specify the individual and the phone that will be tapped. A recommendation on roving wiretaps came to us in the PATRIOT Act because of the obvious: There was a time and place in America when people had one telephone at work, one telephone at home, and if the Government sought to tap that telephone to find out what was going on, it was pretty obvious which telephone lines needed to be tapped. Now we live in a different world where people carry around phones in their pockets. People may have several phones. So the Government asked for additional authority to focus on those who were engaged in telephone conversations on numerous different telephone lines. Roving wiretaps do not require the Government to specify the phone being tapped. They are designed to allow law enforcement to track targets that evade surveillance by frequently changing phones. Before the PATRIOT Act, they were only permitted for criminal investigations, not intelligence investigations. The PATRIOT Act authorized the FBI to use roving wiretaps for intelligence purposes for the first time. I supported this. I thought it was a reasonable expansion of wiretap authority because it is important that intelligence investigators have that authority. Unfortunately, the PATRIOT Act did not include the same limits on these powers that exist for criminal investigations. These limits would have protected innocent Americans from unjustified surveillance. It is a basic tenet of law that if you are going to tap a conversation, the Government has to be specific enough so as to protect innocent people. We should not allow the Government at any given time to impose a wiretap on a phone that anybody might use. The Government should be specific, protecting in the process the privacy of innocent people, while clearly targeting those with a wiretap who could be guilty of a crime or guilty of activities that are treasonous. Under the PATRIOT Act, the FBI is not required to determine whether the target of the wiretap is physically present at the location being wiretapped before beginning the wiretap, as it is for criminal wiretaps. The ascertainment requirement, as it is known, ensures innocent Americans are not wiretapped unnecessarily, especially when the FBI wiretaps a public telephone. The FBI is now permitted to obtain a John Doe roving wiretap for intelligence purposes, a sweeping authority never before authorized by Congress. A John Doe roving wiretap does not specify the person or the phone to be wiretapped. In other words, the FBI can obtain a wiretap without telling a court whom they want to wiretap and where they want to wiretap. This is a virtually limitless power. The SAFE Act, which we have introduced, would continue to authorize roving wiretaps for intelligence purposes but would impose reasonable limits, the same limits that exist for criminal investigations. Law enforcement would be required to determine whether the target of the wiretap is physically present before beginning the wiretap. The FBI would not be able to obtain ``John Doe'' roving wiretaps. These protections would ensure that the Government does not wiretap innocent Americans. Secondly, the SAFE Act would impose reasonable limits on sneak-and- peek searches. Sneak-and-peek searches are conducted secretly by the FBI with no notice to the target until some time after the search. You have all seen the scene on television--maybe you are familiar with it from your community--where there is a knock on the door and a law enforcement official says: I have a warrant to search your home. Well, that is the usual course of events in criminal investigations. It is much different when it comes to sneak-and-peek searches. The Justice Department argues that warrants for sneak-and-peek searches ``had been available for decades before the PATRIOT Act was passed,'' but such warrants were never authorized by Congress before the passage of the PATRIOT Act. Some courts permitted sneak-and-peek warrants in limited circumstances, although the Supreme Court has never ruled on their constitutionality. In authorizing sneak-and-peek warrants, section 213 of the PATRIOT Act did not include checks and limitations on the power of the Government so as to protect innocent Americans. Courts have required the FBI to notify the target of the search within 7 days of the search. Section 213 of the PATRIOT Act, however, requires notice of the search only within ``a reasonable period,'' which is not defined. According to the Justice Department, this has resulted in delays of notice of up to 90 days, and of ``unspecified duration.'' Section 213 authorizes sneak-and-peek searches where a court finds that providing immediate notice of the search would have an adverse result. ``Adverse result'' is defined broadly. It includes circumstances ``seriously jeopardizing an investigation or unduly delaying a trial.'' This catch-all provision could arguably apply in almost every case. Unlike many other PATRIOT Act provisions that give new surveillance powers to the FBI, the sneak-and-peek [[Page S3902]] authority does not sunset. It is permanent law. According to a recent poll, 71 percent of Americans disapprove of the current sneak-and-peek provision in the PATRIOT Act. Last year, an overwhelming, bipartisan majority in the House of Representatives voted to repeal this section of the PATRIOT Act. The SAFE Act that we introduce would not go nearly that far. It would place reasonable limits on the FBI's ability to conduct sneak-and-peek searches, while still permitting broad use of this authority. The SAFE Act would still authorize sneak-and-peek searches in a broad set of specific circumstances. However, it would eliminate the catch- all provision that allows sneak-and-peek searches in any circumstances. The SAFE Act would require notification of a covert search within 7 days but would authorize a court to allow unlimited additional 7-day delays upon application by the Government. According to the Justice Department, ``the most common period of delay'' under section 213 is 7 days, so this limit that we establish is not unreasonable. The SAFE Act would also sunset the sneak-and-peek authority, giving Congress an opportunity to take a hard look at a provision in the law that is so widely unpopular in the United States. The third area has received a lot of attention, and it relates to the compelled production of library and personal records. The SAFE Act would place reasonable limits on the FBI's authority to compel production of library and personal records. Before the PATRIOT Act, the FBI was authorized to seek a court order for the production of records from four types of businesses--common carriers, such as airlines and trains and buses; public accommodations, such as hotels and restaurants; storage facilities; and car rental companies. In order to obtain records, the FBI was required to convince a court it had reason to believe that the person to whom the records related was a terrorist or a spy. Under section 215 of the PATRIOT Act, the FBI can compel production of ``any tangible things,'' not just records, from any entity, not just the four types of businesses previously covered. The FBI, under the PATRIOT Act, is only required to certify that the records are ``sought for'' a terrorism or intelligence investigation, a standard even lower than relevance. The FBI is not required to show that the documents relate to a suspected terrorist or spy. Now, those who defend section 215 frequently claim the FBI must obtain court approval to compel production of records, but if you read section 215, you will see that the type of court approval which is authorized is a rubber stamp. The PATRIOT Act gives the Government too much power to seize the personal records of innocent Americans who are not suspected of involvement in any terrorism or espionage. This could lead to broad fishing expeditions which waste scarce Government resources, are unlikely to produce useful information, and can infringe upon privacy rights. The SAFE Act would retain the PATRIOT Act's expansion of the records provision to cover ``any tangible things,'' as I said earlier, and any entity. But it would reinstate the pre-PATRIOT Act standard for obtaining records, which requires individualized suspicion and increased judicial oversight. The FBI would be required to convince a court that it has reason to believe that the person to whom the records relate is a terrorist or a spy. This would protect innocent Americans and prevent fishing expeditions by the Government. It is very important to note that in the more than 2 years since the passage of the PATRIOT Act, section 215--compelling records, as I have described--has never been used. If the authority has never been used during this time of great national concern and peril, it is difficult to understand how imposing some reasonable checks could harm the war on terrorism. The fourth and last section of the SAFE Act relates to national security letters. The SAFE Act would impose reasonable limits on the issuance of these letters. An NSL, as they are known, is a document signed by an FBI agent requiring disclosure of financial, credit, or other personal information. It can be issued to a wire or electronic communication provider. The recipient of an NSL is subject to a gag order and cannot disclose the request to the individual whose records are being sought. An NSL does not require judicial or grand jury approval. Before the PATRIOT Act, the FBI could issue such a letter to obtain records by certifying it had reason to believe that the person to whom the records relate is a terrorist or spy. The approval of FBI headquarters was required. Section 505 of the PATRIOT Act allows the FBI to issue a national security letter by certifying that the records are ``sought for'' a terrorism or intelligence investigation, regardless of whether the target is a suspect. FBI headquarters approval is no longer required. Unlike many other surveillance-related PATRIOT Act provisions, this expanded NSL authority does not sunset under the law of the PATRIOT Act. The SAFE Act would retain the PATRIOT Act's lower standard for the issuance of NSLs and its delegation of issuing authority to FBI field offices. It would simply clarify that a library is not a ``wire or communication service provider,'' which, from the plain meaning of the words, it is not. The FBI could still obtain information regarding e- mails and other communications originating from library computers by issuing a national security letter to the library's wire or communication service provider. The SAFE Act would simply ensure that the FBI issues the national security letter to the service provider, which is the appropriate recipient, rather than a community library, which is not equipped to respond to such a request. We would also sunset this NSL authority, giving Congress another opportunity to take a look at it. We have the responsibility to give the Government the power it needs to keep us safe, but at the same time we have a responsibility to the Constitution, which we have all sworn to uphold and defend, to zealously protect the personal freedoms and liberties of American citizens. Geoffrey Stone, a professor and former dean at the University of Chicago Law School, made this observation: In time of war . . . we respond too harshly in our restriction of civil liberties, and then, later, regret our behavior. It is, of course, much easier to look back on past crises and find our predecessors wanting, than it is to make wise judgments when we ourselves are in the eye of the storm. But that challenge now falls to us. We must meet this challenge head on. As we reflect on the course of history, there has hardly been a time in the history of the Nation when we faced great threats to our safety and security when the Government did not overreach. The greatest President, I think, who ever served us, Abraham Lincoln, from my State of Illinois, during the course of the Civil War, suspended the writ of habeas corpus, basically gathering into prison suspects without any charges. It was clearly in violation of the language of the Constitution. It was a power he assumed as Commander In Chief, and many have questioned it in the years that have followed. During World War I, when there was real concern about outside threats to our country, we established the Alien and Sedition Acts, laws passed by Congress and signed by the President which, on reflection, went too far. In World War II, we had the Japanese internment camps. We took perfectly innocent Japanese Americans, simply because of their ancestry, and put them in these settlement camps for lengthy periods of time, even while the children would leave the camps to serve in the Armed Forces. During the cold war, a war that went on for decades and cost this Nation billions of dollars and created great anxiety, the McCarthy hearings and the questions of patriotism that were raised indicate that again we had gone entirely too far. The list continues. Sadly, it continues when we reflect on what we have done since September 11. There is always a tension in our society between security and freedom. Those who want more security often argue that the Government needs more power and more authority, and individuals must give up those freedoms. Many of us believe that in surrendering [[Page S3903]] our freedoms, we are surrendering our heritage to the terrorists. The freedoms which were so carefully guarded and so zealously pursued by so many generations, freedoms which we have won with the lives of Americans in conflict time and time again, should be carefully guarded as well. I hope we will understand that the burden of proof is not on individual Americans to come forward and prove to the Government they have a right to their freedoms and liberties. When the Government seeks to take away the freedom and liberty of an American citizen, it is the burden of the Government to prove that is necessary. With the SAFE Act, Senator Craig and I have taken four very specific and discrete elements of the PATRIOT Act and we have said that by changing these, we will still keep America safe, but we will prevent intrusive Government activity into the privacy of individuals. We can search the Constitution from the beginning to the end, through every amendment, and never see the word ``privacy'' in it, but courts have said repeatedly that that is what government should be all about-- protecting our privacy, only invading it in times when it is absolutely necessary to protect our safety in our community or our security as a Nation. The PATRIOT Act ended up being an allocation of power to the Government that went far beyond what was necessary for the security of our Nation and in fact invaded our rights and liberties. We need to meet this challenge head on. It is possible to combat terrorism and to protect our freedoms. We can be safe and free. The SAFE Act demonstrates that. I urge my colleagues to join Senator Craig and myself as cosponsors. I yield the floor and suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. REED. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. [...] SAFE Act Mr. CRAIG. Mr. President, I have come to the floor, as my colleague from Illinois did a few moments ago, to talk about the USA PATRIOT Act and where we are with this issue that the American people have recognized as important for a variety of reasons. We all know that following the attack on American soil on September 11, 2001, we produced the USA PATRIOT Act to allow the law enforcement and intelligence communities of this country to move forward and do a variety of things. For the first time, we stepped [[Page S3904]] into some arenas of law that many citizens of our country looked at at the time and said, be careful if you go there for you may well be intruding upon what are fundamental and constitutional rights of privacy with the American people. I voted for the PATRIOT Act at that time, and I did so speaking to the fact that I thought it was necessary that we move expeditiously to allow our law enforcement community to operate for the purpose of national security. I said at that time that this was not a perfect law. In fact, 253 communities and 37 States later, representing approximately 43.5 million people, have passed resolutions opposing or expressing concern about the PATRIOT Act. Groups as politically diverse as the ACLU and the American Conservative Union endorse changes in the law. In his State of the Union Address, the President called for reauthorization of the PATRIOT Act. Given the bipartisan opposition to the law at this moment as it currently stands, there are many of us who believe it is necessary to make some adjustments in the law as we move toward reauthorization. Congress, in fact, made oversight of the PATRIOT Act implicit by sunsetting over a dozen sections of the bill at the time of its passage. The Senator from Illinois and I drafted S. 1709 with this oversight in mind. It was drafted to clarify and amend in a minor way the PATRIOT Act's most troubling provisions so that the whole or even piecemeal repeal of the law would be unnecessary. It was drafted to safeguard the liberties of law-abiding citizens while preserving the law enforcement authorities essential to a successful war on terror. Late last month, however, the Department of Justice issued a letter objecting to the very legislation, objecting to it before there had even been a hearing on it. Specifically, they objected to the SAFE Act on grounds that it would ``eliminate'' some PATRIOT tools and even ``make it more difficult'' to fight terrorism than before enactment of the PATRIOT Act. Let me be emphatic: the SAFE Act in no way repeals any provision of the PATRIOT Act, nor impedes law enforcement's ability to investigate terrorism by amending pre-PATRIOT Act law. My name would not be on a bill that accomplished those things. What the SAFE Act does do is clarify and slightly modify several provisions, particularly those related to the use of surveillance and the issuance of search warrants, to restore the judicial oversight requisite to healthy law enforcement. Specifically, the SAFE Act would impose two reasonable safeguards on the use of roving wiretaps for intelligence purposes. Before the PATRIOT Act, roving wiretaps were only permitted for criminal, not intelligence, investigations. The PATRIOT Act authorized the FBI to use roving wiretaps for intelligence purposes for the first time. The Intelligence Authorization Act of 2002 further permitted the FBI to obtain ``John Doe'' wiretaps in an intelligence investigation without specifying either the target or the location of the wiretap. Law enforcement is only required to provide a physical description of the target, such as 5'7", Middle Eastern descent or something else equally as vague, so as to, in my opinion, be meaningless. In order to protect the private conversations of people wholly unrelated to the investigation, the SAFE Act simply requires that law enforcement specify either the target or the location of the wiretap and ascertain the presence of the target before initiating the surveillance. Far from eliminating the roving wiretap, S. 1709 only makes the requirements for a roving wiretap for intelligence surveillance conform to the requirements for roving wiretaps under the criminal code. Does this tie law enforcement's hands in the way the Justice Department so described it? Hardly so. In the case of sneak-and-peek warrants, before the PATRIOT Act, there was no statutory authority for delayed notice warrants for physical evidence, although covert searches of oral and wire communications for intelligence purposes were allowed. The Supreme Court never ruled on the constitutionality of sneak-and-peek warrants for physical evidence, and the Federal circuit courts were divided on the issue. Despite this, the PATRIOT Act granted Federal law enforcement broad authority to obtain sneak-and-peek warrants for physical evidence where a court finds ``reasonable cause'' that providing immediate notice of the warrant would have an adverse result, including seriously jeopardizing an investigation or unduly delaying a trial,''--a very broad standard. The SAFE Act, our amendment to the PATRIOT Act, reasonably limits when a court may issue a sneak-and-peek warrant for physical evidence to situations where notice of the warrant would: (1) endanger the life or physical safety of an individual; (2) result in flight from prosecution; or, (3) result in the destruction of or tampering with evidence sought under the warrant. Though the Department of Justice argues that scenarios such as a suspect's associates fleeing, going into hiding, or accelerating their plots would be excluded from the sneak-and-peek authority, these clearly fall within the reasonable limits of the SAFE Act. The Department of Justice also misrepresents the authority of the sneak-and-peek provision when it says that the SAFE Act would ``restrict the ability of courts to extend the period of delay'' for a delayed-notice warrant. Although S. 1709 requires notice of a covert search within 7 days rather than a reasonable period, it authorizes unlimited 7-day delays if the court finds that notice of a warrant would continue to endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant. Far from restricting the courts, the SAFE Act restores what I believe is the proper level of judicial oversight in the process. I believe the Department of Justice also misrepresented the modifications the SAFE Act would make to section 215 of the PATRIOT Act, which permits law enforcement to obtain a vast array of business records with minimal judicial oversight. Before the PATRIOT Act, FISA search orders were available for only certain travel-related ``business'' records--not library or personal records--where the FBI had ``specific and articulable facts'' connecting the records to a foreign agent. These orders are available for any and all records, including library records, by simply certifying that the records are sought for an international terrorism or intelligence investigation, a standard even lower than relevance. The court does not even have the authority to reject this certification under current law. Though the Department of Justice describes the SAFE Act standard as a ``much more rigorous'' standard, FISA search orders would still be available for any and all records, but only when the FBI has ``specific and articulable facts'' connecting the records to a foreign agent. Far from ``raising the standard'' to a new level, S. 1709 reinstates the proper pre-PATRIOT standard for obtaining a FISA order for business records, and even maintains the PATRIOT Act's expanded definition of business records. Likewise, the Department of Justice argues that section 5 of the SAFE Act would impose an ``entirely new limitation'' on the use of National Security Letters. Before the PATRIOT Act, the FBI could issue a National Security Letter to obtain personal records by certifying that it had reason to believe that the person to whom the records relate is a foreign power or agent of a foreign power. Current law allows the FBI to obtain sensitive personal records, without judicial approval, simply by certifying that they are sought for a terrorism or intelligence investigation, regardless of whether the target is a suspect. While national security letters are only to be used to obtain name, address, length of service, and local and long distance toll billing records, available information indicated that the Justice Department is using them to obtain other kinds of records, including library records. Contrary to the assertions of the Department of Justice, the SAFE Act maintains the greatly expanded definition of ``financial [[Page S3905]] records,'' and even makes such records available without individual suspicion. S. 1709 only reasonably exempts libraries and Internet terminals from National Security Letter orders. While I am disappointed that the Administration has expressed disagreement with the SAFE Act, I view this as an opportunity to increase the public discussion on one of the most important issues of the day. I know Attorney General John Ashcroft. John and I are personal friends. I am not worried about how John Ashcroft will enforce the law. But administrations change. The law lasts, and it is imperative that it embodies a smooth balance of liberty and justice. I am not seeking to repeal any provision of the PATRIOT Act but rather to salvage it by making necessary, albeit minor, amendments to it in order to safeguard individual liberties while preserving the very important law enforcement authorities it grants. Privacy is a hallmark of our constitutional system--the right of the individual within that system--and what we attempt to do by the SAFE Act, S. 1709, is to assure that when we reauthorize the PATRIOT Act, we guarantee that those rights are preserved. I yield the floor. Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues Senator Craig and Senator Durbin in calling for hearings on this important legislation to amend the PATRIOT Act. After the vicious attacks of September 11, there was a broad consensus in Congress about what needed to be done. We all recognized the need to give law enforcement and intelligence officials stronger powers to investigate and prevent terrorism, to provide officials with effective ways to stop terrorists from entering our country, and to achieve greater coordination between the law enforcement and the intelligence communities. At the same time, we understood the critical importance of protecting the basic rights and liberties of our citizens and others residing legally in the United States and maintaining America's long tradition of welcoming immigrants from around the world. The challenge we faced, then as now, was how to strike the right balance between law enforcement and civil liberties. Many of us were concerned that some of the changes initially requested by the administration did not strike the right balance. We made significant improvements to the PATRIOT Act during Senate negotiations, but we also recognized the need to follow the implementation of these new powers carefully. That is why the 4-year sunset provision is such an important part of the legislation. By passing the sunset provision, Congress committed itself to revisiting the PATRIOT Act after 4 years, in a non-election year, and making a new and better-informed assessment of which powers should be retained, which should be revised, and which should be eliminated. Since the enactment of this law, there has been increasing bipartisan concern about its effect on civil liberties in this country. Two hundred fifty-seven communities in 38 States representing over 40 million citizens, have passed resolutions opposing or expressing concern about the PATRIOT Act. Clearly, we must do more to protect the basic rights and civil liberties of law-abiding Americans. The bipartisan Security and Freedom Ensured Act is narrowly written to correct some of the PATRIOT Act's most controversial provisions: it would protect innocent people from surveillance, by requiring ``roving wiretap'' warrants to identify either the target of the wiretap or the place to be wiretapped; it would impose reasonable limits on the Government's ability to carry out ``sneak and peek'' search warrants, by requiring notice of such a covert search to be given within 7 days after the search, unless the notice would endanger a person's life or result in the destruction of evidence or a suspect's flight from prosecution; and it would protect library and bookstore records from ``fishing expedition'' searches of the records, while still allowing the F.B.I. to follow up on legitimate leads. None of these changes would amend pre-PATRIOT Act law in any way. None would impede the ability of law enforcement and intelligence officials to investigate and prevent terrorism. To the contrary, the SAFE Act would retain the expanded powers created by the PATRIOT Act, while restoring the constitutional safeguards that are indispensable to our democracy. These safeguards are a continuing source of our country's strength, not luxuries or inconveniences to be jettisoned in times of crisis. Unfortunately, the administration does not agree. Our proposal has not yet received a hearing in the Judiciary Committee, yet the administration has already threatened to veto it. Rather than comply with the sunset provision specifically written into the PATRIOT Act itself, President Bush has sought to make an election-year issue out of it by calling on Congress to reauthorize the Act now. Rather than seek to promote understanding, the Attorney General and other officials have chosen to defend the PATRIOT Act by speaking only before audiences sympathetic to their views. In Boston and other cities, citizens with questions and concerns about the PATRIOT Act have been shut out. I urge my colleagues not to accept this cynical election-year strategy. In the House, Chairman Sensenbrenner has rejected calls for reauthorizing the PATRIOT Act this year, and we should do the same in the Senate. We should conduct additional hearings in the Judiciary Committee on the many important civil liberties issues that have been raised since September 11, including the administration's unprecedented and troubling ``enemy combatant'' policy, under which U.S. citizens are incarcerated without counsel or judicial review. Attorney General Ashcroft should appear to defend these and other policies. And we should hold hearings specifically on the bipartisan SAFE Act proposed by Senator Craig and Senator Durbin. We should also hold hearings on the need for legislation to protect the civil liberties of immigrants. The detention provisions in the PATRIOT Act have led to the unfair detention of innocent people. Massive registration programs have fingerprinted, photographed and interrogated over 80,000 innocent Arab and Muslim students, visitors, and workers. ``Voluntary interview'' programs have made criminal suspects out of Muslims legally residing in the U.S. In our pursuit of terrorist suspects, our Government cannot be allowed to ride roughshod over the basic rights and liberties of immigrants. In a speech in 1987, Justice William Brennan observed that the United States had repeatedly failed to preserve civil liberties during times of national crisis--from the Alien and Sedition Acts of 1798, to the internment of Japanese Americans during World War II--only to later realize ``remorsefully . . . that the abrogation of civil liberties was unnecessary.'' As we continue to face the crisis of terrorism today, we should do all we can to avoid the errors of the past. The administration and Congress should work together in a spirit of bipartisanship and shared purpose, to bring terrorists to justice, to enhance our security, and to preserve and protect our Constitution. [...] SAFE Act Mr. SUNUNU. Madam President, I rise to speak on the issue of the PATRIOT Act and to follow up on the remarks earlier this afternoon by Senator Craig of Idaho. I have joined Senator Craig in cosponsoring the SAFE Act, a piece of legislation that would make certain modifications to the PATRIOT Act. I will not go into all of the details of the legislation, as Senator Craig did. However, I do want to highlight a couple of the main provisions of the legislation to outline our thinking in crafting these provisions and underscore why I think we need to take a step back, look at the PATRIOT Act in its totality and try to make it work better and try to strike a better balance the protection of the civil liberties we all cherish as Americans and the tools we do believe are necessary for law enforcement and intelligence agencies to conduct the war against terror. It is unfortunate some people have come out with a knee-jerk reaction [[Page S3907]] calling for the repeal of the PATRIOT Act. Before the PATRIOT Act our laws did not reflect or foresee a day and age with cellular phones, satellite phones, and a high-speed Internet. There are a lot of very important provisions of the PATRIOT Act that do update our law enforcement capabilities in a way that reflects changes in technology. Protecting civil liberties while giving law enforcement the ability to operate as technology and new threats to our security emerge is critical to winning the global war on terror. We can draw an appropriate line to protect civil liberties in a few specific areas. First, let's look at sneak-and-peek warrants, or a delayed notification search warrant. Senator Craig spoke at length about the provision in the SAFE Act that would modify the PATRIOT Act to say instead of requiring notification within a reasonable amount of time, which is clearly an arbitrary definition. Instead, we ought to have a set time limit that notification of a search warrant executed without notice has to be provided within 7 days of the execution of the warrant. Now, if there is a threat to safety, or risk of flight, or a risk of damage to the investigation, the SAFE Act allows law enforcement officials to go back to the judge and extend that notification another 7 days. And that can continue indefinitely. This approach--specifying a time limit on the warrant and providing for more judicial review--is much clearer and more respectful of civil liberties. For anyone to suggest adding clarity in the law for notification undermines the capacity of law enforcement to continue to do their job, I think, is a level of rhetoric that does not serve an important debate such as this very well. Second, we added clarification to the provision in the PATRIOT Act that deals with a roving wiretap. The SAFE Act would require law enforcement to specify either the suspect to be put under surveillance through a roving wiretap--an order that follows that suspect as they use different cell phones, and other means of communication--or specify a particular location to be monitored. Specify the suspect or specify the location. Changing the PATRIOT Act to require such specification would add clarity to ensure the PATRIOT Act is not misused and minimizes the likelihood that innocent parties would be unknowingly tapped. And again, such a change would only improve the PATRIOT Act as it would protect those who are not targets of investigation but it still give law enforcement the ability to conduct this kind of a roving wiretap. Third, another provision of the SAFE Act applies sunset provisions to a number of different sections of the PATRIOT Act that do not sunset over time. When we talk about a sunset provision in the U.S. Congress, we are talking about a specific period during which the legislation is in force, but after that period--it might be a 2-year or 3-year or 4- year period--the law sunsets, and it needs to be reenacted or reauthorized by Congress. I think sunsets are healthy. They are good because they force Congress to rethink and reargue a piece of legislation and examine how the legislation has been used and problems that might exist with it. I think we are much more likely to make improvements to legislation if we have to reauthorize it at different periods in the future. I do not understand why anyone would say a sunset provision weakens legislation. It does not. It simply requires us to renew them at a future date. I do not know why law enforcement would be afraid of a sunset provision. I do not know why the Justice Department would be afraid of a sunset provision. If there is value to the law, it is helping law enforcement do their job, and all the while it is appropriately protecting civil liberties, the law will be reauthorized and improved over time. I cannot think of any reason the provisions of the SAFE Act that add clarity to the time frame for notification and judicial review of a sneak and peak warrant, that add specification to the person or place targeted for a wiretap, or that sunset provisions to a law--should be opposed on the grounds that they somehow threaten our ability to conduct the war on terrorism. Quite to the contrary, the provisions of the SAFE Act go a long way toward ensuring individual civil liberties are protected, that the ability to misuse or abuse the law is minimized, that law enforcement continues to have what it needs to prosecute the war on terrorism and that Congress has to affirm and reauthorize legislation over time. I only see the SAFE Act as strengthening the PATRIOT Act. So I join with Senator Craig, Senator Durbin, Senator Feingold, Senator Crapo, other members of the Senate and the wide range of citizen groups who have all endorsed and supported the SAFE Act. I hope when we begin deliberations and discussions about renewing and extending the PATRIOT Act, these substantive yet modest, thoughtful modifications are a vital part of that debate that is undertaken in this Chamber. I yield the floor. [...] Security and Freedom Ensured Act Mr. FEINGOLD. Madam President, I join my colleagues Senators Craig and Durbin in urging the administration and Congress to support the SAFE Act. The SAFE Act is a much needed bill that amends a few provisions of the USA PATRIOT Act in a reasonable way to preserve our constitutional rights and protections while still protecting our Nation against terrorism. More than 2 years after the PATRIOT Act passed so overwhelmingly, without close scrutiny by Congress, I am delighted that there is now growing support for close examination of application of the law and for changes to the law to ensure that, as we fight terrorism, we also protect the civil liberties of Americans. There is reason for hope. In Congress and in communities across the country, the American people are beginning to realize that the PATRIOT Act went too far. In Congress, there is bipartisan support for changes to the law. I am pleased to join my Republican colleagues, Senators Craig, Crapo, Sununu, and Murkowski, as a cosponsor of the SAFE Act. Over 275 communities and four States have now passed resolutions expressing opposition to certain provisions of the PATRIOT Act. Mr. President, the attacks of September 11, 2001, presented a new and unique challenge to this country. I can think of nothing more important than responding to that terrible challenge and protecting Americans against terrorism. As I said during debate on the PATRIOT Act and continue to say today, I believe most of the Act's provisions were necessary and proper, such as increasing the number of border patrol agents and allowing the FBI access to voicemails as a part of wiretaps. But we must be sure that, in conducting the fight against terrorism, the country's highest priority, we also respect the civil rights and liberties of all Americans. History shows that America should not let fear, however justified, cause us to sacrifice our liberty or the liberty of others in the name of national security. The Palmer raids, the McCarthy hearings, the internment of Japanese-Americans, these are all events that have been judged poorly through the lens of history. Today, we are again faced with a grave threat but we can and must face it without potentially abusing the power of the Federal Government or trampling fundamental constitutional rights and protections. I am pleased that Members of Congress and the American people are beginning to realize the values at stake. There is healthy debate across the country in city councils, State legislatures, town hall gatherings, and in Congress, on how best to preserve a free and open society and to protect our Nation against future terrorist attacks. In contrast, the administration does not seem interested in engaging in a good faith dialogue with the American people and Members of Congress about our legitimate concerns and reasonable proposals. Instead, the President has prematurely called for lifting the sunset on certain provisions of the PATRIOT Act that are due to expire. Congress has a responsibility to exercise oversight and demand accountability from the agencies using authority granted to them by Congress. Nearly 2 years before some provisions of the PATRIOT Act will sunset, the administration should be engaging in good faith discussions and negotiations on how it is using the powers it has and how best to protect our country from terrorism while also protecting the civil liberties of our citizens. I am pleased that both Senator Hatch and Representative Sensenbrenner, the Chairmen of the Senate and House Judiciary Committees, respectively, have disagreed with the President and have stated that close scrutiny of the PATRIOT Act will be undertaken before Congress will consider lifting the sunset provisions. I commend them for taking this position. It is the right thing to do and the proper role of Congress. In addition to prematurely calling for lifting the sunset provisions, the administration has already threatened to veto the SAFE Act if it is enacted. [[Page S3910]] That is unfortunate, and very unusual. The administration has issued a veto threat of a bill that was introduced just a few months ago and has not even had a hearing yet. Thousands of bills are introduced each year. The administration could spend a lot of time issuing veto threats for every one it disagrees with. Obviously, it is worried about this one. But veto threats at this early stage do not contribute to a productive dialogue, and they certainly will not deter the growing bipartisan interest in reevaluating the PATRIOT Act. I would like to take a moment to talk about the SAFE Act and why it is a reasonable proposal. As my colleagues Senators Craig and Durbin have discussed, the SAFE Act makes important modifications to enhance judicial review of the FBI's roving wiretap and so-called ``sneak and peek'' search activities. I would like to comment on another important modification to the PATRIOT Act contained in the SAFE Act, the section 215, or business records, fix. Prior to the PATRIOT Act, the Government could compel the production of only certain business records in connection with a counter- intelligence or international terrorism investigation, namely, hotel, rental car, airline, and storage facility records. This was a narrow set of records, and so it made sense to change the law. I agree with that change, to allow the FBI access to more categories of business records. But the PATRIOT Act went too far because it also weakened the ability of the courts to exercise their proper role as a check on the executive branch, and it took away the requirement of individualized suspicion. The PATRIOT Act changed the standards for allowing the FBI access to such records. Prior to the PATRIOT Act, investigators had to state, in their application to the secret FISA court, specific and articulable facts giving reason to believe that the person to whom the records pertained was a suspected terrorist or spy. If a court agreed, it would issue the order. The PATRIOT Act, however, vastly expanded this power so that investigators no longer have to show ``specific and articulable facts.'' Now, investigators need only state that the records are ``sought for'' a counter-intelligence or international terrorism investigation. Upon receiving the application for a court order, the judge must--must--issue the order. He or she does not have discretion. The judge cannot review the merits of the request. For example, a judge cannot review facts to determine whether the scope of the request is reasonable. So long as the FBI asserts that the records are ``sought for'' a foreign intelligence investigation, the judge must issue the order. The SAFE Act sponsors and I, as well as librarians, privacy advocates, and an increasing number of Americans, believe this provision of the PATRIOT Act goes too far. We recognize that there is enormous potential for abuse if the FBI is allowed access to personal information, such as medical records, library records, or newspaper or magazine subscription records, all with no meaningful judicial review and without a requirement of some showing that the records pertain to a suspected terrorist or spy. The SAFE Act would simply re-insert a pre-PATRIOT Act standard so that he role of the judge as a check on the executive branch is real and effective. Like the standard prior to the PATRIOT Act, under the SAFE Act the FBI would need to state specific and articulable facts to support its application. The SAFE Act simply restores the judicial oversight that existed prior to the PATRIOT Act, giving the court the power to ensure that the Federal Government is not engaging in a fishing expedition at the expense of innocent Americans. This is a reasonable response to protect both our security and our privacy. The administration has not shown how this prudent safeguard would harm the fight against terrorism or impair its ability to get access to information it needs to protect the country. I might add that according to the administration, as of last September, almost 2 years since enactment of the PATRIOT Act, the administration claims it had not yet used section 215 of the PATRIOT Act. It is unclear whether they have used it since that time, and I have recently sent the Attorney General a letter asking him whether it has been used. But regardless of whether it has been used zero times or a handful of times, it is nevertheless difficult to understand how re- inserting an important judicial check would harm the fight against terrorism. I urge the administration to reconsider its position on the SAFE Act. The American people have thoughtfully expressed their fears and wishes. They want the Federal Government to protect them against terrorism, but they also want the Federal Government to be respectful of the Constitution every step of the way. With passage of the SAFE Act, we can reassure the American people that we are working to protect their rights and liberties, as well as their safety. I urge my colleagues and the administration to support the SAFE Act. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. [...]