Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, in a few minutes the Senate is going to vote on whether one small group of Senators, with the blessing of the majority leader, can effectively amend a conference report while other Senators are precluded from offering amendments by a procedural tactic. I urge my colleagues, regardless of their views on the White House deal or PATRIOT Act reauthorization, to vote against cloture. Senators should not be precluded from offering amendments to important pieces of legislation. In December, 46 Senators voted against cloture on the PATRIOT Act reauthorization conference report. The deal we are asked to bless today makes only minor or, in the words of the Senator from Pennsylvania, ``cosmetic'' changes to that conference report. But regardless of whether you agree with me that the deal does not address the key civil liberties issues identified as problems with the conference report in December, there is no question this is a deal the vast majority of the Senate had no role in. A few Senators worked out a few changes with the White House, and we are now being asked to take it or leave it. That is not how the Senate is supposed to work. I have filed four reasonable amendments. They reflect provisions that were included in the bill the Senate passed in July without objection or that were central to the concerns raised by so many Senators late last year. They are so reasonable the Senator from Pennsylvania plans to introduce a bill incorporating them and has pledged to pursue it after the conference report becomes law. There is no reason we should put off addressing these important concerns that long when we could be debating and voting on them this week. I am also willing to have time agreements limiting debate on my amendments as long as they get votes. But, again, the majority leader has simply said no. He has filled the amendment tree, effectively blocking me or any other Senator from trying to improve this bill during debate. The majority leader has told us the conference report will be amended by this deal cut with the White House by a few Senators, and there is nothing the rest of us can do about it. But, of course, there is something we can do about it. We can reject this parliamentary game. These kinds of strong-arm tactics are not right. They are an abuse of the process. They are beneath the Senate, and I hope my colleagues will send a strong message that it will not be tolerated on this bill or any other bill. So I urge my colleagues to vote no on cloture and to allow the Senate to consider amendments to improve the PATRIOT Act. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, for the last 33 years, the American people have relied upon the Clean Water Act to protect and restore the health of the Nation's waters. The primary goal of the act to make rivers, streams, wetlands, lakes, and coastal waters safe for fishing, swimming and other recreation, suitable for our drinking water supply, and available for wildlife and fish habitat--has become accepted by the public not only as a worthy endeavor but also as a fundamental expectation of government providing for its citizens. It is our responsibility to provide adequate protection to ensure that our freshwater resources are able to enhance human health, contribute to the economy, and help the environment. Despite being one of our Nation's bedrock environmental laws, the Clean Water Act faces new and unprecedented challenges. The Supreme Court recently heard two Clean Water Act cases, the outcome of which will have significant implications for Federal efforts to protect the Nation's waters from pollution and destruction. Fortunately, an unprecedented array of local, State, regional, and national officials, professional organizations, and public interest groups from across the country and the political spectrum have joined in the defense of the Clean Water Act. The unparalleled collection of interested parties includes the attorneys general of 33 States plus the District of Columbia; four former Administrators of the Environmental Protection Agency--Russell Train, Douglas Costle, William Reilly, and Carol Browner; nine current and former members of the U.S. Senate and U.S. House of Representatives who were directly involved in the passage of the 1972 Act and its reaffirmation in 1977; the Association of State Wetlands Managers, the Association of State Floodplain Managers, the Association of State and Interstate Water Pollution Control Administrators, and the International Association of Fish and Wildlife Agencies; numerous hunting, fishing, wildlife and outdoor recreation organizations and businesses, including Ducks Unlimited, the National Wildlife Federation, Trout Unlimited, the American Sportsfishing Association, Bass Pro Shops, the Orvis Company, and the Wildlife Management Institute, among others; and a number of local, regional, and national environmental groups. All of these interests filed briefs expressing strong support of the Clean Water Act's core safeguard: the requirement to obtain a permit before discharging pollutants into waters of the United States. With such strong support for the Clean Water Act, which is grounded in the language, history, and purpose of the law itself, I hope that the Supreme Court will follow its own precedent and reaffirm Federal protections for streams, headwaters, tributaries, and wetlands that have long been covered by the Act. Whatever the outcome of these critical cases, Congress must reaffirm the historical scope of the Clean Water Act. The best way to do this is through passage of the Clean Water Authority Restoration Act, S. 912. This bill simply confirms that the Act has always covered all of these waters, consistent with Congress's clear intent, by codifying the regulatory definition of ``waters of the United States'' that has been in use since 1973. The bill addresses protections for certain so-called isolated streams and wetlands in the wake of the Supreme Court's 2001 decision in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and will help to ward off any future legal challenges to the scope of the act. Our Nation's streams, ponds, isolated wetlands, and other bodies of water are too important to not take action to protect them. We owe future generations nothing less than healthy waters.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, the upcoming cloture vote on the motion to proceed to S. 2271, introduced by my friend Senator Sununu, is the first opportunity for my colleagues to go on record on whether they will accept the White House deal on PATRIOT Act reauthorization. Back in December, 46 Senators voted against cloture on the conference report. I think it's clear by now that the deal makes only minor changes to that conference report. The Senator from Pennsylvania, chairman of the Judiciary Committee and primary proponent of the conference report in this body, was quoted yesterday as saying that the changes that the White House agreed to were ``cosmetic.'' And then he said, according to the AP, ``But sometimes cosmetics will make a beauty out of a beast and provide enough cover for senators to change their vote.'' The Senator from Alabama said on the floor yesterday: ``They're not large changes, but it made the Senators happy and they feel comfortable voting for the bill today.'' I agree with both of my adversaries on this bill that the changes were minor and cosmetic. I explained that at length yesterday, and no one else other than Senator Sununu came down to the floor to defend the deal. Some of my colleagues have been arguing, however, that we should go along with this deal because the conference report, as amended by the Sununu bill, improves the PATRIOT Act that we passed 4\1/2\ years ago. It's hard for me to understand how Senators who blocked the conference report in December can now say that it's such a great deal. It's not a great deal--the conference report is just as flawed as it was 2 months ago. No amount of cosmetics is going to make this beast look any prettier. That said, let me walk through some of the provisions of the conference report that are being touted as improvements to the original PATRIOT Act. First, there's the issue that was the linchpin of the bill the Senate passed without objection in July of last year, that of course is the standard for obtaining business records under Section 215. Section 215 gives the Government extremely broad powers to secretly obtain people's business records. The Senate bill would have required that the Government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to section 215, at least around the edges. It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the Goverment can seek to obtain particularly sensitive records like library, gun and medical records. But the core issue with section 215 is the standard for obtaining these records in the first place. Neither the minimization procedures nor the high level signoff changes the fact that the Government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report--``relevance''--will still allow Government fishing expeditions. That is unacceptable. And the Sununu bill does not change that. Next, let me turn to judicial review of these section 215 orders. After all, if we are going to give the Government such intrusive powers, we should at least let people go to a judge to challenge the order. The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that Government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process. And the Sununu bill does not address this problem. What we have are very intrusive powers, very limited judicial review--and then, on top of it, anyone who gets a section 215 order can't even talk about it. That's right--they come complete with an automatic, indefinite gag order. The new ``deal'' supposedly allows judicial review of these gag orders, but that's just more cosmetics. As I explained yesterday, the deal that was struck does not permit meaningful judicial review of these gag orders. No judicial review is available for the first year after the 215 order has been issued. Even when the right to judicial review does finally kick in, the challenger has to prove that the Government acted in bad faith. We all know that is a virtually impossible standard to meet. The last point on section 215 is that the conference report, as amended by Sununu bill, now explicitly permits recipients of these orders to consult with attorneys, and without having to inform the FBI that they have done so. It does the same thing with respect to national security letters. This is an important clarification, but keep in mind that the Justice Department had already argued in litigation that the provision in the NSL statute actually did permit recipients to consult with lawyers. So this isn't much of a victory at all. Making sure that recipients don't have to tell the FBI if they consult a lawyer is an improvement, but it is a minor one. Next let's turn to national security letters or NSLs. These are the letters that the FBI can issue to obtain certain types of business records, with no prior court approval at all. The conference report does provide for judicial review of NSLs, but it also gives the Government the explicit right to enforce NSLs and hold people in contempt for failing to comply, which was not previously laid out in the statute. In stark contrast to the Senate bill, the conference report also would require that the judicial review be conducted in secret and that Government submissions not be shared with a challenger under any circumstances without regard to whether there are national security concerns in any particular case. So just like the section 215 judicial review provision, this will make it very difficult for challengers to be successful. Again, the Sununu bill does not address this problem. Of course, NSLs come with gag orders, too. The conference report addresses judicial review of these gag orders, but it has the same flaw as the Sununu bill with regard to judicial review of the section 215 gag rule. In order to prevail, you have to prove that the Government acted in bad faith, which, again, would prove to be virtually impossible. The Sununu bill does not modify these provisions at all. Let me make one last point on NSLs. The Sununu bill contains a provision which states that libraries cannot receive an NSL for Internet records unless the libraries provide ``electronic communication services'' as defined by statute. But that statute already applies only to entities that satisfy this definition, so this provision is essentially just restating existing law. It is no improvement at all. Those cosmetics wear pretty thin when you look closely at this deal. Let's turn to sneak-and-peek search warrants. As I laid out in detail yesterday, the conference report takes a significant step back from the Senate bill by presumptively allowing the Government to wait an entire month to either notify someone that agents secretly searched their home or to get approval from a judge to delay the notice even longer. The Senate said it should be 1 week. I have yet to hear any argument at all, even in direct debate from the Senator from Alabama, much less a persuasive argument, why that amount of time is insufficient for the Government. The core fourth amendment protections are at stake. This is not like flipping a coin: Let's make it 7 days; no, make it 30 days. This involves people coming into somebody's house without their knowledge and how long that should be allowed without telling them you were in their house. Once again, the Sununu bill does nothing to address this issue. Let me talk briefly about roving intelligence wiretaps under section 206 of the PATRIOT Act. We have not discussed this issue much, in part because the conference report does partially address the concerns raised about this provision. But the conference report language is still not as good as the Senate bill was on this issue. Unlike the Senate bill, the conference report does not require that a roving wiretap include sufficient information to describe the specific person to be wiretapped with particularity. The Sununu bill does not address this problem. Supporters of the conference report say it contains new 4-year sunsets for three provisions: section 206, section 215, and the so- called lone wolf expansion of the Foreign Intelligence Surveillance Act that passed as a part of the intelligence reform bill in 2004. We agree, I am sure, that sunsets are not enough. This reauthorization process is our opportunity to fix the problems of the PATRIOT Act. Just sunsetting bad law again is hardly a real improvement. Of course, neither the conference report nor the Sununu bill contains a sunset for the highly controversial national security letter authorities which were expanded by the PATRIOT Act, even though many of us said back in December that was a very important change we wanted to see made. I have the same response to those who point to the valuable new reporting provisions in the conference report: We must make substantive changes to the law, not just improve oversight. I have laid out at length the many substantive reasons to oppose the deal. But there is an additional reason to oppose cloture on the motion to proceed; that is, it appears the majority leader is planning to prevent Senators from offering and getting votes on amendments to this bill. I was on the Senate floor for 9 hours yesterday. I was not asking for much, just a guarantee that once we moved to proceed to the bill I could offer and get votes on a handful of amendments relavant to the bill. There was a time--in fact, I was here--when Senators did not have to camp out on the floor to plead for the opportunity to offer amendments. In fact, offering debate and voting on amendments is what the Senate is supposed to be all about. That is how we craft legislation. But my offer was rejected. It appears as if the other side may try to ram this deal through without a real amending process. I hope that even colleagues who may support the deal will oppose such a sham process. It makes no sense to agree to go forward without a guarantee that we will be allowed to actually try to improve the bill. It is a discourtesy to all Senators, not just me, to try to ram through controversial legislation without the chance to improve it. In sum, I oppose the sham legislative process the Senate is facing, and I oppose the flawed deal we are being asked to ratify. Notwithstanding the improvements achieved in the conference report, we still have not adequately addressed some of the most significant problems of the PATRIOT Act. I must oppose proceeding to this bill which will allow this deal to go forward. I cannot understand how anyone who opposed the conference report back in December can justify supporting it now. The conference report was a beast 2 months ago, and it has not gotten any better looking since then. I urge my colleagues to vote no on cloture. I reserve the remainder of my time. I suggest the absence of a quorum.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. FEINGOLD. Madam President, I yield the remaining time in morning business on our side.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the pending amendment be set aside so I may offer an amendment which is at the desk, amendment No. 2892.

Mr. FEINGOLD. I yield to the Senator from Nevada.

Mr. FEINGOLD. Mr. President, I ask unanimous consent the pending amendment be set aside so I may offer an amendment at the desk, No. 2892.

Mr. FEINGOLD. Mr. President, we can obviously see what is going on here when the majority leader offered those two amendments earlier. He was filling the amendment tree. That means he is trying--in fact, he is going to do everything he can, and he will succeed, if he wishes--to refuse to allow Senators to improve this bill. Those amendments are nothing more than meaningless amendments, the amendments he has offered, that have to do with the effective date of the bill. They are nothing other than an attempt to prevent me or any other Senator from trying to amend this legislation. Not only was this a take-it-or-leave-it deal from the White House, but now the majority leader and perhaps other Senators are apparently afraid of what happens if the Senate actually does its work on this issue and has open votes on the merits of these issues. I want everyone to know that is the game that is being played here, on a bill that has major implications for the rights and freedom of the American people. Obviously, when the majority leader talks about how urgent it is that this be passed, he is conveniently ignoring the fact that this current law is in effect until March 10, and there is no risk whatsoever that the bill would not be renewed. I am going to speak for a few minutes about the various amendments I have filed and that the majority leader is preventing me from offering. Amendment No. 2892 Amendment No. 2892 is the amendment that would implement the standard for obtaining section 215 orders that was in the Senate bill the Judiciary Committee approved by a vote of 18 to 0 and that was agreed to in the Senate without objection. I hope my colleagues remember that. When the majority leader fills the tree, he is not preventing some type of esoteric amendments nobody has ever seen or heard of. Every member of the Judiciary Committee already voted for that very provision and no Senator in the entire Senate, including the majority leader, objected to that being in the Senate bill. So this is not some kind of a last-minute deal. This is something the majority leader himself never objected to. It is a reasonable amendment that every Senator in one way or another has basically supported. Of all the concerns that have been raised about the PATRIOT Act since it was passed in 2001, this is the one that has received the most public attention, and rightly so. This is the one that is often referred to as the ``library provision.'' A reauthorization bill that doesn't fix this provision, in my view, has no credibility. Section 215 of the PATRIOT Act allows the Government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including not just library records, but also medical records and various other types of business records. The PATRIOT Act allowed the Government to obtain these records as long as they were ``sought for'' a terrorism investigation. That is a very low standard. It didn't require that the records concern someone who was suspected of being a terrorist or spy, or even suspected of being connected to a terrorist or spy. It didn't require any demonstration of how the records would be useful in the investigation. Under section 215, if the Government simply said it wanted records for a terrorism investigation, the secret FISA court was required to issue the order-- period. To make matters worse, recipients of these orders are also subject to an automatic gag order. They cannot tell anyone that they have been asked for records. Because of the breadth of this power, section 215 became the focal point of a lot of Americans' concerns about the PATRIOT Act. These voices came from the left and the right, from big cities and small towns all across the country. So far, more than 400 State and local government bodies have passed resolutions calling for revisions to the PATRIOT Act. And nearly every one mentions section 215. The Government should not have the kind of broad, intrusive powers that section 215 provides--not this Government, not any government. The American people shouldn't have to live with a poorly drafted provision that clearly allows for the records of innocent Americans to be searched, and just hope that Government uses it with restraint. A Government of laws doesn't require its citizens to rely on the good will and good faith of those who have these powers--especially when adequate safeguards can be written into the laws without compromising their usefulness as a law enforcement tool. Not one of the amendments I am offering would threaten the ability of law enforcement to do what is needs to do to investigate and prevent terrorism. After lengthy and difficult negotiations, the Judiciary Committee came up with language that achieved that goal. It would require the Government to convince a judge that a person has some connection to terrorism or espionage before obtaining their sensitive records. And when I say some connection, that's what I mean. The Senate bill's standard is the following: No. 1, that the records pertain to a terrorist or spy; No. 2, that the records pertain to an individual in contact with or known to a suspected terrorist or spy; or No. 3, that the records are relevant--just relevant--to the activities of a suspected terrorist or spy. That's the three-prong test in the Senate bill and I think it is more than adequate to give law enforcement the power it needs to conduct investigations, while also protecting the rights of innocent Americans. It would not limit the types of records that the Government could obtain, and it does not go as far to protect law-abiding Americans as I might prefer, but it would make sure the Government cannot go on fishing expeditions into the records of innocent people. The conference report did away with this delicate compromise. It does not contain the critical modification to the standard for section 215 orders. The Senate bill permits the Government to obtain business records only if it can satisfy one or more prongs of the three-prong test. This is a broad standard with a lot of flexibility. But it retains the core protection that the Government cannot go after someone who has no connection whatsoever to a terrorist or spy or their activities. The conference report replaces the three-prong test with a simple relevance standard. It then provides a presumption of relevance if the government meets one of the three-prongs. It is silly to argue that this is adequate protection against a fishing expedition. The only actual requirement in the conference report is that the Government show that those records are relevant to an authorized intelligence investigation. Relevance is a very broad standard that could arguably justify the collection of all kinds of information about law-abiding Americans. The three-prongs now are just examples of how the Government can satisfy the relevance standard. That is not simply a loophole or an exception that swallows the rule. The exception is the rule, rendering basically meaningless the three-prong test that we worked so hard to create in the Senate version of the bill. This issue was perhaps the most significant reason that I and others objected to the conference report. So how was this issue addressed by the White House deal to get the support of some Senators? It wasn't. Not one change was made on the standard for obtaining section 215 orders. That is a grave disappointment. The White House refused to make any changes at all. Not only would it not accept the Senate version of section 215, which, no member of this body objected to back in July-- including the majority leader--it wouldn't make any change in the conference report on this issue at all. So today I offer an amendment to bring back the Senate standard on section 215. It simply replaces the standard in the conference report with the standard from the Senate bill. I urge my colleagues to support this change, which we all consented to 6 months ago, and which was one of the core issues that many of us stood up for in December when we voted against cloture on the conference report. I know that some will say they must oppose this amendment because it would disrupt a delicate agreement that has been achieved with the White House. I disagree. There is no reason we can't reauthorize the PATRIOT Act and fix section 215--in fact, there is every reason we should do so. This body has expressed its strongly held views on this issue before, and it should do so again. If this issue went to a vote in the House I'm confident we would have strong support because the House has already indicated a willingness to modify section 215 to protect the privacy of innocent Americans. That is the first amendment I wanted to offer. Let me next turn to amendment No. 2893. Amendment No. 2893 The second one is amendment No. 2893. This amendment would ensure that recipients of business records orders under section 215 of the PATRIOT Act and recipients of national security letters can get meaningful judicial review of the gag orders that they are subject to. Recipients of both section 215 orders and national security letters are subject to automatic, indefinite gag orders. This means both that a recipient cannot tell anyone what the section 215 order or NSL says, and that the recipient can never even acknowledge that he or she received a section 215 order or NSL. Now I understand there may very well be a need to protect the confidentiality of these business records orders and NSLs in many cases, particularly with regard to the identity of the people whose records they seek. But I do not understand why even the fact of their existence must be a secret, forever, in every case. Even classified information can undergo declassification procedures and ultimately become public, when appropriate. So I think that meaningful judicial review of these gag orders is critically important. In fact, these automatic, permanent gag rules very likely violate the first amendment. In litigation challenging the gag rule in one of the national security letter statutes, two courts have found first amendment violations because there is no individualized evaluation of the need for secrecy. So what does the reauthorization package do about this serious problem? Under the conference report, as modified by the Sununu bill, recipients would theoretically have the ability to challenge these gag orders in court, but the standard for getting the gag orders overturned would be virtually impossible to meet. It is not the meaningful judicial review that the sponsors of the SAFE Act and so many others have been calling for. Let me start with the NSL provision of the conference report. In order to prevail in challenging the NSL gag order, the recipient would have to prove that any certification by the Government that disclosure would harm national security or impair diplomatic relations was made in bad faith. There would be what many have called a ``conclusive presumption'' the gag order stands--unless the recipient can prove that the Government acted in bad faith. We all know that is not meaningful judicial review. That is just the illusion of judicial review. Does the White House deal address this problem? It does not. In fact, it applies that same very troubling standard of review to judicial review of section 215 gag orders. The conference report that was rejected back in December did not authorize judicial review of the gag order that comes with a section 215 order at all. That was a serious deficiency. But the White House deal does not solve it. Far from it. Under the deal, there is judicial review of section 215 gag orders, but subject to two limitations that are very problematic. First, judicial review can only take place after at least a year has passed. And second, it can only be successful if the recipient of the section 215 order proves that the Government has acted in bad faith, just as I have described with the NSL provision. My amendment would eliminate the ``bad faith'' showing currently required for overturning both section 215 and NSL gag orders. And it would no longer require recipients of section 215 orders to wait a year before they can challenge the accompanying gag orders. That is not everything I would want to address with regard to this issue. I am also concerned that the judicial review provisions allow the Government to present its evidence and arguments to the court in secret. But this amendment which I would like to offer is a good solid start. At a time when the Government is asserting extraordinary powers and seeking to exercise them without any oversight by the courts, judicial review of Government assertions that secrecy is necessary more essential than ever. We cannot face the American people and claim that overreaching by the government under the PATRIOT Act cannot happen because the courts have the power to stop it--and then turn around and prevent the courts from doing their job. The illusion of judicial review is almost worse that no judicial review at all. In America, we cannot sanction kangaroo courts where the deck is stacked against one party before the case is even filed. Obviously, I hope that my colleagues will support this very reasonable amendment, if we are given a chance to vote on it. I think many would find it quite pervasive and particularly some of the people who were part of the White House negotiations. amendment to add nsl sunset The third amendment I would like to offer, No. 2891, would add to the conference report one additional 4-year sunset provision. It would sunset the national security letter authorities that were expanded by the PATRIOT Act. It would be simply add that sunset to the already existing 4-year sunsets that are in the conference report with respect to section 206, section 215, and the lone wolf provision. National Security Letters, or NSLs, are finally starting to get the attention they deserve. This authority was expanded by sections 358 and 505 of the PATRIOT Act. The issue of NSLs has flown under the radar for years, even though many of us have been trying to bring more public attention to it. I am gratified that we are finally talking about NSLs, in large part due to a lengthy Washington Post story published last year about these authorities. What are NSLs, and why are they such a concern? Let me spend a little time on this because it really is important. National security letters are issued by the FBI to businesses to obtain certain types of records. So they are similar to section 215 orders, but with one very critical difference. The Government does not need to get any court approval whatsoever to issue them. It doesn't have to go to the FISA court and make even the most minimal showing. It simply issues the order signed by the special agent in charge of a field office or an FBI headquarters official. NSLs can only be used to obtain certain categories of business records, While section 215 orders can be used to obtain ``any tangible thing.'' But even the categories reachable by an NSL are quite broad. NSLs can be used to obtain three types of business records: subscriber and transactional information related to Internet and phone usage; credit reports; and financial records, a category that has been expanded to include records from all kinds of everyday businesses like jewelers, car dealers, travel agents and even casinos. Just as with section 215, the PATRIOT Act expanded the NSL authorities to allow the Government to use them to obtain records of people who are not suspected of being, or even of being connected to, terrorists or spies. The Government need only certify that the documents are either sought for or relevant to an authorized intelligence investigation, a far-reaching standard that could be used to obtain all kinds of records about innocent Americans. And just as with section 215, the recipient is subject to an automatic, permanent gag rule. The conference report does nothing to fix the standard for issuing an NSL. It leaves in place the breathtakingly broad relevance standard. And the White House deal doesn't do anything about this either. It is true that the Senate bill does not contain a sunset on the NSL provision. But the Senate bill was passed before the Post brought so much attention to this issue by reporting about the use of NSLs and the difficulties that the gag rule poses for businesses that feel they are being unfairly burdened by them. At the very least, I would think that a sunset of the NSL authorities is justified to ensure that Congress has the opportunity to take a close look at such a broad power. And let me emphasize, the sunset in this amendment would only apply to the expansions of NSL authorities contained in the PATRIOT Act, not to pre- existing authorities. I suspect that the NSL power is something that the administration is zealously guarding because it is one area where there is almost no judicial involvement or oversight. It is the last refuge for those who want virtually unlimited Government power in intelligence investigations. And that is why the Congress should be very concerned, and very insistent on including a sunset of these expanded authorities. A sunset is a reasonable step here. It helps Congress conduct oversight of these authorities, and requires us to revisit them in 4 years. Ideally we could go ahead and actually fix the NSL statutes now, but sunsetting the expanded powers would at least be a step in the right direction. Adding this sunset does not change the law in any way. I cannot imagine that adopting this amendment would blow up the White House deal. This is a reasonable amendment, and again I want my colleagues to have a chance to vote on it. sneak and peek amendment The fourth amendment that I have, No. 2894, concerns so-called ``sneak and peek'' searches, whereby the Government can secretly search people's houses. The Senate bill included compromise language that was acceptable to me and the other proponents of the SAFE Act. The conference report departs from that compromise in one very significant respect, and the White House deal doesn't address this at all. My amendment would restore the key component of the Senate compromise by requiring that subjects of sneak and peek searches be notified of the search within 7 days, unless a judge grants an extension of that time because there is a good reason to still keep the search secret. It makes no other change to the conference report other than changing 30 days to 7 days. Let me take a little time to put this issue in context and explain why the difference between 30 days and 7 days is necessary to protect an important constitutional right. One of the most fundamental protections in the Bill of Rights is the fourth amendment's guarantee that all citizens have the right to ``be secure in their persons, houses, papers, and effects'' against ``unreasonable searches and seizures.'' The idea that the Government cannot enter our homes improperly is a bedrock principle for Americans, and rightly so. The fourth amendment has a rich history and includes in its ambit some very important requirements for searches. One is the requirement that a search be conducted pursuant to a warrant. The Constitution specifically requires that a warrant for a search be issued only where there is probable cause and that the warrant specifically describe the place to be searched and the persons or things to be seized. Why does the Constitution require that particular description? Well, for one thing, that description becomes a limit on what can be searched or seized. If the magistrate approves a warrant to search someone's home and the police show up at the person's business, that search is not valid. If the warrant authorizes a search at a particular address, and the police take it next door, they have no right to enter that house. But here is the key. There is no opportunity to point out that the warrant is inadequate unless that warrant is handed to someone at the premises. If there is no one present to receive the warrant, and the search must be carried out immediately, most warrants require that they be left behind at the premises that were searched. Notice of the search is part of the standard fourth amendment protection. It's what gives effect to the Constitution's requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized. Over the years, the courts have faced claims by the Government that the circumstances of a particular investigation require a search without notifying the target prior to carrying out the search. In some cases, giving notice would compromise the success of the search by causing the suspect to flee or destroy evidence. The two leading court decisions on so-called surreptitious entry, or what have come to be known as ``sneak and peek'' searches, came to very similar conclusions. They held that notice of criminal search warrants could be delayed, but not omitted entirely. Both the Second Circuit in U.S. v. Villegas and the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant must provide that notice of the search will be given within 7 days, unless extended by the court. Listen to what the Freitas court said about such searches: We take this position because surreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment. The mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else. That passion, the true source of the Fourth Amendment, demands that surreptitious entries be closely circumscribed. So when defenders of the PATRIOT Act say that sneak and peek searches were commonly approved by courts prior to the PATRIOT Act, they are partially correct. Some courts permitted secret searches in very limited circumstances, but they also recognized the need for prompt notice after the search unless a reason to continue to delay notice was demonstrated. And they specifically said that notice had to occur within 7 days. Section 213 of the PATRIOT Act didn't get this balance right. It allowed notice to be delayed for any ``reasonable'' length of time. What is ``reasonable''? Information provided by the administration about the use of this provision since 2001 indicates that delays of months at a time are now becoming commonplace. Those are hardly the kind of delays that the courts had been allowing prior to the PATRIOT Act. I know that the conference report requirement of notice within 30 days was a compromise between the Senate and House provisions. And so, the Senator from Pennsylvania and others will strongly oppose this amendment, if I ever get to offer it. But let me point out that the House passed the Otter amendment to completely eliminate the sneak and peek provision by a wide bipartisan margin. I hardly think the House will balk at this reasonable amendment that allows these sneak and peek reviews but says that after 7 days you have to go back and get an application for more time, or you have to give notice to the persons whose house is intruded upon. More importantly, here is the crucial question that no one has been able to answer so far. Listen carefully to the arguments made by the opponents of the amendment and see if they answer it this time, if we ever get a chance to debate it. What possible rationale is there for not requiring the Government to go back to a court within 7 days after a sneak and peek search and demonstrate a need for continued secrecy? What is the problem here? Why insist that the Government get 30 days of secrecy, instead of 7 days, without getting an extension from the court? Could it be that they think that the courts usually won't agree that continued secrecy is needed after the search is conducted, so they won't get the 90-day extension? If they have to go back to a court at some point, why not go back after 7 days rather than 30? From the point of view of the Government, I don't see the big deal. It amazes me to hear Senators on the floor saying 7 days, 30 days. What is the difference? This is about big government coming into your home without your knowledge and saying it doesn't matter that you are not given notice in 7 days as opposed to 30 days. I tell you that it matters to people in my State, and it would matter to me. Government shouldn't be in your house without notice except for very narrowly identified circumstances that are consistent with the court decisions that allowed the sneak-and-peek provisions in the first place. There is a big difference between 1 week and 1 month when it comes to something like the Government secretly coming into your home. Suppose, for example, that the Government actually searched the wrong house. As I mentioned, that is one of the reasons that notice is a fourth amendment requirement. The innocent owner of the place that had been searched might suspect that someone had broken in his house, and he might be living in fear that someone has a key or some other way to enter his house. The owner might wonder: When is the intruder going to return? Do the locks have to be changed? I implore my colleagues to look at this issue from the point of view of an innocent person in their own home somewhere in their own home State. Why would we make that person wait a month to get an explanation rather than a week? Presumably, if the search revealed nothing, and especially if the Government realized the mistake and does not intend to apply for an extension, it will be no hardship other than a little embarrassment for notice to be given within 7 days. If, on the other hand, the search was successful and revealed illegal activity and notifying the subject would compromise an ongoing investigation, the Government should have no trouble at all getting a 90-day extension of the search warrant. All they have to do is walk into the court and tell the judge: Judge, we found something, and we are now keeping the place under surveillance because there is ongoing criminal activity taking place there, so give us more time before we serve the search warrant. That is all you have to say. What is so hard about that? We all know the judges will give them that. It is perfectly reasonable. The Senate bill is already a compromise on this very controversial provision. There is no good reason not to adopt the Senate's position. I have pointed this out repeatedly and no one has ever come to the Senate and come up with any explanation of why the Government cannot come back to the court within 7 days of executing the search. The Senate provision was what the courts required prior to the PATRIOT Act. It worked fine then. It can work now. Let me make one final point about sneak-and-peek warrants. Do not be fooled for a minute that this power has anything to do with just investigating terrorism or espionage. It does not. Section 213 is a criminal provision that applies in any kind of criminal investigation. In fact, most sneak-and-peek warrants are issued for drug investigations. So why do I say they are not needed in terrorism investigations? Because FISA, the Foreign Intelligence Surveillance Act, can also apply to these investigations. FISA search warrants are always executed in secret and never require notice--not in 7 days, not in 30 days, not in 180 days, not ever. So if you do not want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that adopting this amendment will interfere with sensitive terrorism investigations is false. It is false, plain and simple. I look forward to hearing the response of the opponents on this issue. I am beginning to lose faith I will ever hear from them. But I also urge my colleagues to listen carefully: Will anyone come forward and argue convincingly that 7 days, which the entire Senate approved in July, is too short of a period of time? If not, we should adopt this amendment. I have had the opportunity the last few minutes to describe the four remaining amendments I have filed. I have tried to explain them clearly. These are provisions that are either consistent with or the same as provisions that we approved in the Senate last year by unanimous vote in the Judiciary Committee and in a unanimous consent agreement in the Senate, which not one single Senator, including the majority leader, objected to. Or they were central to the concerns raised by so many Senators late last year. So these are obviously not extreme ideas. They are very reasonable ideas. The idea that right after the motion to proceed was approved the majority leader would come and ``fill up the tree,'' which means preventing me from offering these amendments on the Senate floor, is a disservice to the Senate and it is a disservice to the American people. The American people are concerned about this legislation. Whether Members of this Senate want to admit it, there is a lot of concern about this legislation. The goal should be to make sure that the law enforcement in our country has the tools it needs to fight those who are involved in terrorism or spying. But the goal should also be to reassure the American people that we are not somehow trying to take away the rights and freedoms and privacy of perfectly innocent Americans. I would think all of us would want that to be the way this legislation is perceived. The act of preventing reasonable amendments, under a limited timeframe, on provisions that have already been approved by the Senate or that so many Senators have raised concerns about, is a guarantee of causing anxiety and concern on the part of the American people that something is wrong, that somehow the power grab by this administration is out of control. I implore my colleagues to join me in imploring the majority leader to allow us to offer these reasonable amendments. That is not only the right thing to do, it is our responsibility, as Members of this Senate. I yield the floor and suggest the absence of a quorum.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, reserving the right to object.

Mr. FEINGOLD. Mr. President, I object to raising the quorum call.

Mr. FEINGOLD. Mr. President, I ask unanimous--I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that I be recognized to speak at 11 a.m. on the motion to proceed.

Mr. FEINGOLD. I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, it will come as no surprise that I would like to talk about the PATRIOT Act today, and certainly I listened to the remarks of the Senator from New Hampshire and have greatly enjoyed the experience of working with him on this issue for the last couple of years. I, of course, come to a very different conclusion about the matters before us. I strongly oppose proceeding to the consideration of S. 2271, which is legislation introduced by some of my friends and colleagues to implement the deal on the PATRIOT Act that was struck by the White House last week. Some may argue that there is no harm in passing a bill that could charitably be described as trivial. But protecting the rights of law- abiding Americans is not trivial, and passage of S. 2271 is the first step toward passage of the flawed PATRIOT Act conference report. I will oppose both measures, and I am prepared to discuss at length my reasons for doing so. I do greatly respect the Senators who negotiated this deal, but I am gravely disappointed in the outcome. The White House would agree to only a few very minor changes to the same PATRIOT Act conference report that could not get through the Senate just back in this past December. These changes do not address the major problems with the PATRIOT Act that the bipartisan coalition has been trying to fix for the past several years. In fact, the Senator from New Hampshire described the issues that brought us together, the points that brought us together. This agreement doesn't relate, in any significant way, to the provisions that we were concerned about that brought us together in a bipartisan way. What came out of this agreement is, quite frankly, a figleaf to allow those who were fighting hard to improve the act to step down, claim victory, and move on. What a hollow victory that would be and what a complete reversal of the strong, bipartisan consensus that we saw in this body a couple months ago. What we are seeing, I regret to say, is quite simply a capitulation on the intransigent and misleading rhetoric of the White House that sees any effort to protect civil liberties as a sign of weakness. Protecting American values is not weakness. Standing on principle is not weakness. Committing to fight terrorism aggressively without compromising the rights and freedoms this country was founded upon is not weakness either. We have come too far and fought too hard to agree to reauthorize the PATRIOT Act without fixing any of the major problems with the act. A few insignificant face-saving changes don't cut it. So I cannot support this deal. I strongly oppose proceeding to legislation that would implement it. I understand the pressure my colleagues have been under on this issue, and I again want to say I appreciate all the hard work they have done on the PATRIOT Act. It has been very gratifying to work on a bipartisan basis on this issue. It is unfortunate the White House is so obviously trying to make this into a partisan issue because it sees some political advantage in doing so. But whether the White House likes it, this will continue to be an issue where both Democrats and Republicans have concerns, and we will continue to work together for changes in the law. I am sure of that. But I will also continue to strongly oppose any reauthorization of the PATRIOT Act that doesn't protect the rights and freedoms of law-abiding Americans who have absolutely no connection whatsoever to terrorism. This deal does not meet that standard. Frankly, Mr. President, it doesn't even come close. I urge my colleagues to oppose it and I, therefore, ask that they oppose even proceeding to this legislation. I wanted to take some time to lay out the background and context for this ongoing debate over the PATRIOT Act, a debate that will not end with the reauthorization of the 16 provisions that are now set to expire March 10. And I want to discuss my concerns about this reauthorization deal with some specificity. Mr. President, because I was the only Senator to vote against the PATRIOT Act in 2001, I want to be very clear from the start. I am not opposed to reauthorization of the PATRIOT Act. I supported the bipartisan compromise, the reauthorization bill the Senate passed last July without a single Senator objecting. I believe that bill should become law. The Senate reauthorization bill is not a perfect bill, but it is actually a good bill. If that were the bill we considered back in December or the bill we were considering today, I would be speaking in support of it. In fact, we could have completed the process of reauthorizing the PATRIOT Act months ago if the House had taken up the bill that the Senate approved without any objection from any Senator on either side of the aisle. I also want to respond to those who argue that any people who are continuing to call for a better reauthorization package want to let the PATRIOT Act expire. That is nonsense. Not a single Member of this body is calling for any provision--not only that the bill should not be reauthorized, but no Senator is calling for even one provision at all to actually expire. There are any number of ways we can reauthorize the act, while amending its most problematic provisions, and I am not prepared to support reauthorization without adequate reform. Let me also be clear about how this process fell apart at the end of last year and how we ended up having to extend the PATRIOT Act temporarily past the end of 2005. In December, this body, in one of its prouder moments in recent years, refused to let through a badly flawed conference report. A bipartisan group of Senators stood together and demanded further changes. We made very clear what we were asking for. We laid out five issues that needed to be addressed to get our support. Let me quickly read excerpts from a letter that we sent out explaining our concerns: The draft conference report would allow the Government to obtain sensitive personal information on a mere showing of relevance. This would allow Government fishing expeditions. As business groups like the U.S. Chamber of Commerce have argued, the Government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy. The draft conference report does not permit the recipient of a section 215 order to challenge its automatic, permanent gag order. Courts have held that similar restrictions violate the First Amendment. The recipient of a section 215 order is entitled to meaningful judicial review of the gag order. The draft conference report doesn't provide meaningful judicial review of a national security letter's gag order. It requires the court to accept as conclusive the Government's assertion that a gag order should not be lifted, unless the court determines the Government is acting in bad faith. The recipients of NSLs are entitled to meaningful judicial review of a gag order. The draft conference report does not sunset the NSL authority. In light of recent revelations about possible abuses of NSLs, the NSL provision should sunset in no more than four years so that Congress will have an opportunity to review the use of this power. The draft conference report requires the Government to notify the target of a ``sneak and peek'' search no earlier than 30 days after the search, rather than within seven days, as the Senate bill provides and as pre-PATRIOT Act judicial decisions required. The conference report should include a presumption that notice will be provided within a significantly shorter period in order to better protect Fourth Amendment rights. The availability of additional 90- day extensions means that a shorter initial timeframe should not be a hardship on the Government. Those are the key parts of the letter that we sent late last year. Now, you might ask, in this newly announced deal on the PATRIOT Act, have any of these problems been solved? Have any of the five problems identified by the SAFE Act authors been solved? The answer is simple, Mr. President. The answer is: No, not a single one. Only one of these issues has been even partially addressed by this deal. The White House applied immense pressure and pulled out its usual scare tactics and succeeded in somehow convincing people to accept a deal that makes only a tiny substantive improvement to a bill that was actually rejected in December. This is simply not acceptable. I want to explain in detail my biggest concerns with the conference report, as modified by S. 2271, the legislation that the majority leader is seeking to take up. First, I want to clear up one frequent misconception. I have never advocated repeal of any portion of the PATRIOT Act. In fact, as I have said repeatedly over the past 4 years, I supported most of that bill. There were many good provisions in that bill. As my colleagues know, the PATRIOT Act did a lot more than expand our surveillance laws. Among other things, it set up a national network to prevent and detect electronic crimes, such as the sabotage of the Nation's financial sector; it established a counterterrorism fund to allow the Justice Department offices, disabled in terrorist attacks, to keep operating; and it changed the money laundering laws to make them more useful in disrupting the financing of terrorist organizations. One section even condemned discrimination against Arab and Muslim Americans. Even some of the act's surveillance sections were reasonable. One provision authorized the FBI to expedite the hiring of translators. Another added terrorism and computer crimes to the list of crimes for which criminal wiretap orders could be sought. And some provisions helped to bring down what has been called frequently ``the wall''--the wall that had been built up between intelligence and law enforcement agencies. Whenever we start debating the PATRIOT Act, we hear a lot of people saying we must reauthorize the PATRIOT Act in order to ensure that the wall doesn't go back up. So let me make it clear. I supported the information-sharing provisions of the PATRIOT Act. One of the key lessons we learned in the wake of September 11 was that our intelligence and law enforcement agencies were not sharing information with each other, even where the statutes permitted it. Unfortunately, the wall was not so much a legal problem as it was a problem of culture. That is not just my conclusion. The report of the 9/11 Commission made that very clear. I am sorry to report we have not made as much progress as we should have in bringing down those very significant cultural barriers to information sharing among our agencies. The 9/11 Commission report card that was issued toward the end of last year gave the Government a ``D'' for information sharing because our agencies' cultures have not changed enough. A statement issued by Chairman Kean and Vice Chairman Hamilton explained, ``You can change the law, you can change the technology, but you still need to change the culture. You still need to motivate institutions and individuals to share information.'' And so far, apparently, our Government has not met that challenge. Talking about the importance of information sharing, as administration officials and other supporters of the conference report have done repeatedly, is part of a pattern that started several years ago on this issue of renewing or revising the PATRIOT Act. Rather than engage in a true debate on the controversial parts of the PATRIOT Act, as some in this body have done--to their credit--during this reauthorization process, many proponents of the PATRIOT Act point to the noncontroversial provisions of the act and talk about how important they are. They say this bill must be passed because it reauthorizes those noncontroversial provisions. But, that doesn't advance the debate; it muddies the waters because we all agree that those provisions should be continued. The point is we don't have to accept bad provisions to make sure the good provisions become law, or continue to be law. I hope I actually advance the debate. I want to spend some time explaining my specific concerns with the conference report and the deal that was struck to make a few minor changes to it. It is unfortunate the whole Congress could not come together, as the Senate did around the Senate's bipartisan compromise reauthorization bill. In July, the Senate Judiciary Committee voted unanimously in favor of a reauthorization bill that made meaningful changes to the most controversial provisions of the PATRIOT Act to protect the rights and freedoms of innocent Americans. Shortly thereafter, that bill passed the full Senate by unanimous consent. It was not entirely easy for me to support the Senate bill, which fell short of the improvements contained in the bipartisan SAFE Act. But at the end of the day, the Senate bill actually contained meaningful changes to some of the most problematic provisions in the PATRIOT Act--provisions I have been trying to fix since October 2001-- so I decided to support it. I made it very clear at the time, however, that I viewed the bill as the end point of negotiations, not the beginning. In fact, I specifically warned my colleagues ``that the conference process must not be allowed to dilute the safeguards in this bill.'' Obviously, I meant it, but it appears that people either were not listening or weren't taking me seriously. This conference report, as slightly modified by this deal, unfortunately does not contain many important reforms to the PATRIOT Act we passed in the Senate, so I cannot support it. And I will fight. I wish to remind my colleagues of the serious problems with the PATRIOT Act which we have been discussing for several years now. Let me start with section 215, the so-called library provision, which has received probably the most public attention of any one of the controversial provisions. I remember when the former Attorney General of the United States called the librarians who were expressing disagreement with this provision ``hysterical.'' What a revelation it was when the Chairman of the Judiciary Committee, the Senator from Pennsylvania, opened his questioning of the current Attorney General during his confirmation hearing by expressing concerns about this provision of the PATRIOT Act, section 215. He got the Attorney General to concede that, yes, in fact, this provision probably went a bit too far and could be improved and clarified. And that was really an extraordinary moment. It was a moment that was very slow in coming, and it was long overdue. I give credit to the Senator from Pennsylvania because it allowed us to start having a real debate on the PATRIOT Act. Credit also has to go to the American people, who stood up, despite the dismissive and derisive comments of Government officials, and said, with loud voices: The PATRIOT Act needs to be changed. My colleagues know as well as I do that these voices came from the left and the right, from big cities and small towns across America. So far, more than 400 State and local governmental bodies have passed resolutions calling for revisions to the PATRIOT Act. I plan to read some of those resolutions on the floor during this debate, and there are a lot of them. Nearly every one mentions section 215. Section 215 is at the center of this debate over the PATRIOT Act. It is also one of the provisions that I tried unsuccessfully to amend here on the floor in October of 2001. So it makes sense to start my discussion of the specific problems I have with the conference report with the infamous ``library'' provision. Section 215 of the PATRIOT Act allows the Government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including not just library records but also medical records and various other types of business records. The PATRIOT Act allowed the Government to obtain these records as long as they were ``sought for'' a terrorism investigation. That is all they had to say. That is a very low standard. It didn't require that the records concern someone who was suspected of being a terrorist or spy or even suspected of being connected to a terrorist or a spy. It didn't require any demonstration of how the records would be useful in the investigation. Under section 215, if the Government simply said it wanted records for a terrorism investigation, the secret FISA Court was required to issue the order--no discretion required to issue the order, period. To make matters worse, recipients of these orders are also subject to an automatic gag order. They cannot tell anyone that they have been asked for records. Some in the administration and even in this body took the position that people shouldn't be able to criticize these provisions until they could come up with a specific example of ``abuse.'' The Attorney General has repeatedly made that same argument, and he did so again in December in an op-ed in the Washington Post when he dismissed concerns about the PATRIOT Act by saying that ``there have been no verified civil liberty abuses in the 4 years of the Act's existence.'' First of all, that has always struck me as a strange argument since 215 orders are issued by a secret court and people who receive them are prohibited by law from discussing them. In other words, the law is designed--it is actually designed--so that it is almost impossible for you to know if abuses have occurred. But even more importantly, the claim about lack of abuse just isn't credible anymore, given what we now know about how this administration views the surveillance laws that this body, this Congress, writes. We now know that for the past 4-plus years, the Government has been wiretapping the international communications of Americans inside the United States without obtaining the wiretap orders required by statute. If we want to talk about abuses, I can't imagine a more shocking example of an abuse of power than to violate the law by eavesdropping on American citizens without first getting a court order based on some evidence, some evidence that they are possibly criminals or terrorists or spies. So 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. The Government should not have those kinds of broad, intrusive powers in section 215--not this Government, not any government. The American people shouldn't have to live with a poorly drafted provision which clearly allows for the records of innocent Americans to be searched and just hope that the Government uses it with restraint. A government of laws doesn't require its citizens to rely on the good will and good faith of those who have these powers, especially when adequate safeguards could easily be written into the law--easily be written into the law--without compromising their usefulness as a law enforcement or antiterrorist tool. After lengthy and difficult negotiations, the Judiciary Committee came up with language that achieved that goal. It would require the Government to convince a judge that a person has some connection to terrorism or espionage before obtaining their sensitive records. When I say ``some connection,'' that is what I mean. The Senate bill's standard is the following: No. 1, that the records pertain to a terrorist or spy; No. 2, that the records pertain to an individual in contact with or known to a suspected terrorist or spy; or No. 3, that the records are relevant to the activities of a suspected terrorist or spy. That is the three-prong test in the Senate bill, and I believe it is more than adequate to give law enforcement the power it needs to conduct investigations while also sufficiently protecting the rights of innocent Americans. It would not limit the types of records the Government could obtain, and it does not go as far to protect law- abiding Americans as I would prefer, but it would make sure the Government cannot go on fishing expeditions into the records of completely innocent people. The Senate bill would also give recipients of the 215 order an explicit, meaningful right to challenge those orders and the accompanying gag orders in court. These provisions passed the Senate Judiciary Committee unanimously after tough negotiations late into the night, and as anyone familiar with the Judiciary Committee knows, including the Chair, that is no mean feat, to get that done in the Judiciary Committee on any issue. The conference report did away with this delicate provision. First and most importantly, it does not contain the critical modifications to the standard for section 215 orders. The Senate permits the Government to obtain business records only if it can satisfy one or more of the prongs of the three-prong test I just described. This is a broad standard, and it has a lot of flexibility. But it retains the core protection--the core protection--that the Government cannot go after someone who has no connection whatsoever to a terrorist or spy or their activities. The conference replaces the three-prong test with a simple relevance standard. It then provides a presumption of relevance that the Government meets one of the three prongs. It is silly to argue that this is adequate protection against a fishing expedition. The only actual requirement in the conference report is that the Government show that those records are just relevant to an authorized intelligence investigation--that is all--just relevant to an authorized intelligence investigation. Relevance is a very broad standard that could arguably justify the collection of all kinds of information about all kinds of law-abiding Americans. The three prongs are just examples of how the Government can satisfy the relevance standard. That is not simply a loophole or an exception that swallows the rule; the exception is the rule. The exception basically destroys the meaning of the carefully considered three-prong test we all supported in the Senate. I will try to make this as straightforward as I can. The Senate bill requires the Government to satisfy one of three tests. Each test requires some connection between the records and a suspected terrorist or spy. But the conference report says that the Government only is required to satisfy a new fourth test, and that test is only relevance and which does not require a connection between the records and a suspect. So the other three tests no longer provide any protections at all. This issue was perhaps the most significant reason I and others objected to the conference report. So, naturally, the question today is, How was this issue addressed by the White House deal to get the support of some Senators? The answer is, It wasn't. Not one change was made on the standard for obtaining section 215 orders, and that is a grave disappointment. The White House refused to make any changes at all. Not only would it not accept the Senate version of section 215, which no Member of this body objected to back in July, it wouldn't make any change in the conference report on this issue at all. Another significant problem with the conference report that was rejected back in December is that it does not authorize judicial review of the gag order that comes with a section 215 order. While some have argued that the review by the FISA Court of a Government application for a section 215 order is equivalent to judicial review of the accompanying gag order, that is simply inaccurate. The statute does not give the FISA Court any latitude to make an individualized decision about whether to impose a gag order when it issues a section 215 order. It is required by statute to include a gag order in every section 215 order. That means the gag order is automatic and permanent in every case. This is a serious deficiency and one which very likely violates the First Amendment. In litigation challenging a similar, permanent, automatic gag rule in a national security letter statute, two courts have found first amendment violations because there is no individualized evaluation of the need for secrecy. I have those decisions here, and perhaps I will have a chance to read them during this debate. This question of judicial review of the section 215 gag order is one issue that is actually addressed in some way by the White House deal-- addressed but not solved. Far from it. Under the deal, there is judicial review of section 215 gag orders, but it can only take place after a year has passed, and it can only be successful if the recipient of the section 215 order proves that the Government has acted in bad faith. As many of us have argued in the context of national security letters, that is a virtually impossible standard to meet. What we need is meaningful judicial review of these gag orders, not just the illusion of it. I do acknowledge one change made by the White House deal that I do think is an improvement over the conference report. The conference report clarifies that the recipients of both section 215 orders and national security letters, which I will discuss in detail in a moment, can consult an attorney, but it also includes a provision that requires the recipients of these letters to notify the FBI if they consult with the attorney and to identify the attorney to the FBI. Obviously, this could have a significant chilling effect on the right to counsel. The deal struck with the White House makes clear that recipients of section 215 orders in national security letters would not have to tell the FBI if they consult with an attorney. That is an improvement over the conference report but, unfortunately, it is only one relatively minor change. Let me now turn to a very closely related provision that has finally been getting the attention it deserves: national security letters, or NSLs--an authority that was expanded by section 358 and 505 of the PATRIOT Act. This NSL issue has flown under the radar for years, even though many of us have been trying to bring more public attention to it. I am gratified that we are finally talking about NSLs, in large part due to a lengthy Washington Post story published last year on the use of these authorities. What are NSLs, and why are they such a concern? Let me spend a little time on this because it is quite important. National security letters are issued by the FBI to businesses to obtain certain types of records. So they are similar to section 215 orders, but with one very critical difference: the Government does not need to get any court approval whatsoever to issue them. It doesn't have to go to the FISA Court and make even the most minimal showing. It simply issues the order signed by the special agent in charge of a field office or some other FBI headquarters official. NSLs can only be used to obtain certain categories of business records, in fairness, while section 215 orders can be used to obtain ``any tangible thing.'' But even the categories reachable by an NSL are quite broad. NSLs can be used to obtain three types of business records: subscriber and transactional information related to Internet and phone usage; credit reports; and financial records, a category that has been expanded to include records from all kinds of everyday businesses like jewelers, car dealers, travel agents and even casinos. Just as with section 215, the PATRIOT Act expanded the NSL authorities to allow the Government to use them to obtain records of people who are not suspected of being, or even of being connected to, terrorists or spies. The Government need only certify that the documents are either sought for or relevant to an authorized intelligence investigation, a far-reaching standard that could be used to obtain all kinds of records about innocent Americans. And just as with section 215, the recipient is subject to an automatic, permanent gag rule. The conference report does little to fix the problems with the national security letter authorities. In fact, it could be argued that it makes the law worse. Let me explain why. First, the conference report does nothing to fix the standard for issuing an NSL. It leaves in place the breathtakingly broad relevance standard. Now, some have analogized NSLs to grand jury subpoenas, which are issued by grand juries in criminal investigations to obtain records that are relevant to the crime they are investigating. So, the argument goes, what is the big deal if NSLs are also issued under a relevance standard for intelligence investigations? Two critical differences make that analogy break down very quickly. First of all, the key question is: Relevant to what? In criminal cases, grand juries are investigating specific crimes, the scope of which is explicitly defined in the criminal code. Although the grand jury is quite powerful, the scope of its investigation is limited by the particular crime it is investigating. In sharp contrast, intelligence investigations are, by definition, extremely broad. When you are gathering information in an intelligence investigation, anything could potentially be relevant. Suppose the Government believes a suspected terrorist visited Los Angeles in the last year or so. It might then want to obtain and keep the records of everyone who has stayed in every hotel in L.A., or booked a trip to L.A. through a travel agent, over the past couple years, and it could argue strongly that that information is relevant to a terrorism investigation because it would be useful to run all those names through the terrorist watch list. I don't have any reason to believe that such broad use of NSLs is happening. But the point is that when you are talking about intelligence investigations, ``relevance'' is a very different concept than in criminal investigations. It is certainly conceivable that NSLs could be used for that kind of broad dragnet in an intelligence investigation. Nothing in current law prevents it. The nature of criminal investigations and intelligence investigations is different, and let's not forget that. Second, the recipients of grand jury subpoenas are not subject to the automatic secrecy that NSL recipients are. We should not underestimate the power of allowing public disclosure when the Government overreaches. In 2004, Federal officials withdrew a grand jury subpoena issued to Drake University for a list of participants in an antiwar protest because of public revelations about the demand. That could not have happened if the request had been under section 215 or for records available via the NSL authorities. Unfortunately, there are many other reasons why the conference report does so little good on NSLs. Let's talk next about judicial review. The conference report creates the illusion of judicial review for NSLs, both for the letters themselves and for the accompanying gag rule, but, if you look at the details, it is drafted in a way that makes that review virtually meaningless. With regard to the NSLs themselves, the conference report permits recipients to consult their lawyer and seek judicial review, but it also allows the Government to keep all of its submissions secret and not share them with the challenger, regardless of whether there are national security interests at stake. So you can challenge the order, but you have no way of knowing what the Government is telling the court in response to your challenge. The parties could be arguing about something as garden variety as attorney-client privilege, with no national security issues, and the Government would have the ability to keep its submission secret. That is a serious departure from our usual adversarial process, and it is very disturbing. The other significant problem with the judicial review provisions is the standard for getting the gag rule overturned. In order to prevail, the recipient has to prove that any certification by the Government that disclosure would harm national security or impair diplomatic relations was made in bad faith. Again, this is a standard of review that is virtually impossible to meet. So what we have is the illusion of judicial review. When you look behind the words in the statute, you realize it's just a mirage. Does the White House deal address these problems? It does not. In fact, as I have already discussed, it expands that same very troubling standard of review to judicial review section 215 gag orders. The modifications to the conference report agreed to by the White House do contain one other purported change to one of the NSL statutes. This modification states that the FBI cannot issue an NSL for transactional and subscriber information about telephone and Internet usage to a library unless the library is offering ``electronic communication services'' as defined in the statute. But that just restates the existing requirements of the NSL statute, which currently applies only to entities--libraries or otherwise--that provide ``electronic communication services.'' So that provision has no real legal effect whatsoever. Perhaps that explains why the American Library Association issued a statement calling this provision a ``figleaf'' and expressing disappointment that so many Senators have agreed to this deal. I also want to take a moment to address, again, an argument that has been made about the NSL provisions of the conference report. It has been argued that many of the complaints I have about the NSL provisions of the conference report apply equally to the NSL provisions of the Senate bill and therefore, because I supported the Senate bill, by some convoluted theory my complaints are therefore invalid and I should support the conference report. That just makes no sense. The NSL section of the Senate bill was one of the worst sections of the bill. I didn't like it then, and I don't like it now. But in the context of the larger package of reforms that were in the Senate bill, including the important changes to section 215 that I talked about earlier and the new time limit on ``sneak and peek'' search warrants that I will talk about in a moment, I was able to accept that NSL section even though I would have preferred additional reforms. The argument has been made that after supporting a compromise package for its good parts, I guess the idea is I am supposed to accept a conference report that has only the bad parts of the package even though the good parts have been stripped out. That is just nonsense, and every Member of this chamber who has ever agreed to a compromise-- and I must assume that includes every single one of us--knows it. The other point I want to emphasize here is that the Senate bill was passed before the Post reported about the use of NSLs and the difficulties that the gag rule poses for businesses that feel they are being unfairly burdened by them. At the very least, I would think that a sunset of the NSL authorities would be justified to ensure that Congress has the opportunity to take a close look at such a broad power. But the conferees and the White House refused to make that change. Nor would they budge at all on the absurdly difficult standard of review, the so-called conclusive presumption; in fact, the White House insisted on repeating it in the context of judicial review of section 215 gag orders. This points out a real problem I have with the White House deal. In our letter in December, my colleagues and I, Democratic and Republican, complained about the unfair standard for judicial review of the gag order in connection to NSLs. So how can the supporters of this deal argue that applying that same standard to challenges to the gag rule for section 215 orders is an improvement? A standard that was unacceptable in December has somehow miraculously been transformed into a meaningful concession. That is just spin. It doesn't pass the laugh test. I suspect that the NSL power is something that the administration is zealously guarding because it is one area where there is almost no judicial involvement or oversight. It is the last refuge for those who want virtually unlimited Governmental power in intelligence investigations. And that is why the Congress should be very concerned and very insistent on making the reasonable changes we have suggested. I next want to address ``sneak and peek'' searches. This is another area where the conference report departs from the Senate's compromise language, another area where the White House deal makes no changes whatsoever, and another reason that I must oppose the conference report. When we debated the PATRIOT Act in December, the senior Senator from Pennsylvania made what seems on the surface to be an appealing argument. He said that the Senate bill requires notice of a sneak and peek search within 7 days of the search, and the House said 180 days. The conference compromised on 30 days. ``That's a good result,'' he says. ``They came down 150 days, we went up only 23. What's wrong with that?'' Let me take a little time to put this issue in context and explain why this isn't just a numbers game--an important constitutional right is at stake. One of the most fundamental protections in the Bill of Rights is the fourth amendment's guarantee that all citizens have the right to ``be secure in their persons, houses, papers, and effects'' against ``unreasonable searches and seizures.'' The idea that the Government cannot enter our homes improperly is a bedrock principle for Americans, and rightly so. The fourth amendment has a rich history and includes in its ambit some very important requirements for searches. One is the requirement that a search be conducted pursuant to a warrant. The Constitution specifically requires that a warrant for a search be issued only where there is probable cause and that the warrant specifically describe the place to be searched and the persons or things to be seized. Why does the Constitution require that particular description? For one thing, that description becomes a limit on what can be searched or what can be seized. If the magistrate approves a warrant to search someone's home and the police show up at the person's business, that search is not valid. If the warrant authorizes a search at a particular address, and the police take it next door, they have no right to enter that house. But of course, there is no opportunity to point out that the warrant is inadequate unless that warrant is handed to someone at the premises. If there is no one present to receive the warrant, and the search must be carried out immediately, most warrants require that they be left behind at the premises that were searched. Notice of the search is part of the standard Fourth Amendment protection. It's what gives meaning, or maybe we should say ``teeth,'' to the Constitution's requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized. Over the years, the courts have had to deal with Government claims that the circumstances of a particular investigation require a search without notifying the target prior to carrying out the search. In some cases, giving notice would compromise the success of the search by leading to the flight of the suspect or the destruction of evidence. The two leading cases on so-called surreptitious entry, or what have come to be known as ``sneak and peek'' searches, came to very similar conclusions. Notice of criminal search warrants could be delayed but not omitted entirely. Both the Second Circuit in U.S. v. Villegas and the Ninth Circuit in U.S. v. Freitas held that a sneak and peek warrant must provide that notice of the search will be given within 7 days, unless extended by the court. Listen to what the Freitas court said about such searches: We take this position because surreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment. The mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else. That passion, the true source of the Fourth Amendment, demands that surreptitious entries be closely circumscribed. So when defenders of the PATRIOT Act say that sneak and peek searches were commonly approved by courts prior to the PATRIOT Act, they are partially correct. Some courts permitted secret searches in very limited circumstances, but they also recognized the need for prompt notice after the search unless a reason to continue to delay notice was demonstrated. And they specifically said that notice had to occur within 7 en days. Section 213 of the PATRIOT Act didn't get this part of the balance right. It allowed notice to be delayed for any reasonable length of time. Information provided by the administration about the use of this provision indicates that delays of months at a time are now becoming commonplace. Those are hardly the kind of delays that the courts had been allowing prior to the PATRIOT Act. The sneak and peek power in the PATRIOT Act caused concern right from the start. And not just because of the lack of a time-limited notice requirement. The PATRIOT Act also broadened the justifications that the Government could give in order to obtain a sneak and peek warrant. It included what came to be known as the ``catch- all'' provision, which allows the Government to avoid giving notice of a search if it would ``seriously jeopardize an investigation.'' Some think that that justification in some ways swallows the requirement of notice since most investigators would prefer not to give notice of a search and can easily argue that giving notice will hurt the investigation. That is why it sounds to many like a catch-all provision. Critics of the sneak and peek provision worked to fix both of the problems when they introduced the SAFE Act. First, in that bill, we tightened the standard for justifying a sneak and peek search to a limited set of circumstances--when advance notice would endanger life or property, or result in flight from prosecution, the intimidation of witnesses, or the destruction of evidence. Second, we required notice within 7 days, with an unlimited number of 21-day extensions if approved by the court. The Senate bill, as we all know, was a compromise. It kept the catch- all provision as a justification for obtaining a sneak and peek warrant. Those of us who were concerned about that provision agreed to accept it in return for getting the 7-day notice requirement. And we accepted unlimited extensions of up to 90 days at a time. The key thing was prompt notice after the fact, or a court order that continuing to delay notice was justified. That is the background to the numbers game that the Senator from Pennsylvania and other supporters of the conference report point to. They want credit for walking the House back from its outrageous position of 180 days, but they refuse to recognize that the sneak and peek provision still has the catch-all justification and unlimited 90- day extensions. Here is the crucial question that they refuse to answer. What possible rationale is there for not requiring the Government to go back to a court within 7 days and demonstrate a need for continued secrecy? Why insist that the Government get 30 days free without getting an extension? Could it be that they think that the courts usually won't agree that continued secrecy is needed after the search is conducted, so they won't get the 90-day extension? If they have to go back to a court at some point, why not go back after 7 days rather than 30? From the point of view of the Government, I don't see the big deal. But from the point of view of someone whose house has been secretly searched, there is a big difference between 1 week and a month with regard to the time you are notified that some one came into your house and you had absolutely no idea about it. Suppose, for example, that the Government actually searched the wrong house. As I mentioned, that's one of the reasons that notice is a fourth amendment requirement. The innocent owner of the place that had been searched might suspect that someone had broken in, might be living in fear that someone has a key or some other way to enter. Should we make that person wait a month to get an explanation rather than a week? Presumably, if the search revealed nothing, and especially if the Government realized the mistake and does not intend to apply for an extension, it will be no hardship, other than embarrassment, for notice to be given within 7 days. That is why I'm not persuaded by the numbers game. The Senate bill was already a compromise on this very controversial provision. And there is no good reason not to adopt the Senate's provision. I have pointed this out repeatedly, and no one has ever come forward and explained why the Government can't come back to the court within 7 days of executing the search. Instead, they let the House get away with a negotiating tactic--by starting with 180 days, they can argue that 30 days is a big concession. But it certainly wasn't. Let me put it to you this way: If the House had passed a provision that allowed for notice to be delayed for 1,000 days, would anyone be boasting about a compromise that requires notice within 100 days, more than 3 months? Would that be a persuasive argument? I don't think so. The House provision of 180 days was arguably worse than current law, which required notice ``within a reasonable time,'' because it creates a presumption that delaying notice for 180 days, 6 months, is reasonable. It was a bargaining ploy. The Senate version was what the courts had required prior to the PATRIOT Act. And it was itself a compromise because it leaves in place the catch-all provision for justifying the warrant in the first place. That is why I believe the conference report on the sneak and peek provision is inadequate and must be opposed. And the fact that this so-called deal with the White House does not address this issue is yet another reason why I see no reason why I, or anyone, should change their position on this. Let me make one final point about sneak and peek warrants. Don't be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It's not. Section 213 is a criminal provision that applies in whatever kinds of criminal investigations the Government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations. So why do I say that they aren't needed in terrorism investigations? Because FISA also can apply to those investigations. And FISA search warrants are always executed in secret, and never require notice. If you really don't want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that limiting the sneak and peek power as we have proposed will interfere with sensitive terrorism investigations is a red herring. I have spoken at some length about the provisions of this conference report that trouble me, and the ways in which the deal struck with the White House does not address those problems with the conference report. But to be fair, I should mention one aspect of the conference report that was better than a draft that circulated prior to the final signing of that report. The conference report includes 4-year sunsets on three of the most controversial provisions: roving wiretaps, the so-called ``library'' provision, and the ``lone wolf' provision of the Foreign Intelligence Surveillance Act. Previously, the sunsets on these provisions were at 7 years, and it is certainly an improvement to have reduced that number so that Congress can take another look at those provisions sooner. I also want to acknowledge that the conference report creates new reporting requirements for some PATRIOT Act powers, including new reporting on roving wiretaps, section 215, ``sneak and peek'' search warrants, and national security letters. There are also new requirements that the Inspector General of the Department of Justice conduct audits of the Government's use of national security letters and section 215. In addition, the conference report includes some other useful oversight provisions relating to FISA. It requires that Congress be informed about the FISA Court's rules and procedures and about the use of emergency authorities under FISA, and gives the Senate Judiciary Committee access to certain FISA reporting that currently only goes to the Intelligence Committee. I am also glad to see that it requires the Department of Justice to report to us on its data mining activities. But adding sunsets and new reporting and oversight requirements only gets you so far. The conference report, as it would be modified by S. 2271, remains deeply flawed. I appreciate sunsets and reporting, and I know that the senior Senator from Pennsylvania worked hard to ensure they were included, but these improvements are not enough. Sunsetting bad law in another 4 years is not good enough. Simply requiring reporting on the Government's use of these overly expansive tools does not ensure that they will not be abused. We must make substantive changes to the law, not just improve oversight. This is our chance, and we cannot let it pass by. Trust of Government cannot be cannot be demanded or asserted or assumed; it must be earned. And this administration has not earned our trust. It has fought reasonable safeguards for constitutional freedoms every step of the way. It has resisted congressional oversight and often misled the public about its use of the PATRIOT Act. We know now that it has even authorized illegal wiretaps and is making misleading legal arguments to try to justify them. We sunsetted 16 provisions of the original PATRIOT Act precisely so we could revisit them and make necessary changes--to make improvements based on the experience of 4 years with the Act, and with the careful deliberation and debate that, quite frankly, was missing 4 years ago. This process of reauthorization has certainly generated debate, but if we pass the conference report, even with the few White House modifications, in some ways we will have wasted a lot of time and missed our opportunity to finally get it right. The American people will not be happy with us for missing that chance. They will not accept our explanation that we decided to wait another 4 years before really addressing their concerns. It appears that is now an inevitable outcome. But I am prepared to keep fighting for as long as it takes to get this right. For now, I urge my colleagues to oppose the motion to proceed to this legislation to implement the White House deal. We can do better than these minor cosmetic changes. I yield the floor. I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, I appreciate the Senator from Alabama joining the debate about the PATRIOT Act. I am going to respond very briefly to his remarks because I know there are other Senators on the floor who wish to speak about other issues, and I will defer to them in a moment. But the Senator complained that the Senate is enduring another filibuster on this issue. I suppose that is one way to characterize it. What I would characterize it as is those of us who have concerns about this bill are enduring again speech after speech that has absolutely nothing to do with the issues at hand. That is irrelevant to the concerns we have raised about the PATRIOT Act. Throughout his speech, the Senator from Alabama talked about issues that are not about the concerns we have raised. In fact, again, we are subjected to this idea that somehow those of us who raise these concerns are not concerned about what happened to this Nation on 9/11, that we do not feel exactly as much as the Senator from Alabama the pain and the tragedy of the loss of those 3,000 lives. Not a single concern I have raised about this bill would have anything to do with this Government's ability to crack down on people who are trying to attack this country. In fact, that is the whole point. All of the changes we seek are to try to make sure we distinguish those who are completely innocent and unrelated to the terrorists from those who, in fact, are involved in espionage or terrorism. The Senator talks about academic issues. But these are not academic issues. The fact is, when he brings up anything specific, he is changing the subject. He is bringing up noncontroversial issues. He talks about this wall. I talked about this in my speech before: the wall between the CIA and FBI. No Member of this body disputes that wall needed to be taken down. The wall has been taken down. I do not want it to be put back up. That is not in controversy. And virtually the entire speech by the Senator from Alabama was about specific issues--the Midhar case and the Moussaoui case. All of that part of his speech was about something that is not in controversy. If he wants to offer that as a bill right now to simply continue that provision, he can put me down as a cosponsor. So it is completely irrelevant to what we are discussing and what my concerns are at this point. The Senator says that somehow people are running around saying that the FBI is kicking down people's doors without a warrant. Nobody ever said that. I understand how the sneak-and-peek provisions work. We have been on this issue for a while. We know that in sneak and peek there has to be a warrant. The question there is not whether there are warrantless searches of people's homes. The question is, when somebody is allowed, through a judicial order and a warrant, to come into somebody's house when they do not get notice of it, how long somebody should have to endure the possibility that their home has been searched and they do not get notice after the fact that somebody came into their house when they were not there. So again, the argument is entirely unrelated to the concern. The concerns we have raised are important, but they are limited. I am going to insist in this debate that we debate the concerns that we have put forward. Finally, Mr. President, I am amused by the Senator talking about how we passed a bill in the Judiciary Committee by a unanimous vote. You bet we did. The Senator from Alabama voted for it and I voted for it. The whole Senate did not oppose the bill. Now every single thing I have advocated to change in the PATRIOT Act, in terms of the product of this body, is what I am advocating today. The Senator is acting as if those are dangerous provisions. Well, he voted for them. He voted for the stronger standard on 215. He voted for 7 days on the sneak-and-peek provisions. So how can they be dangerous if the Senator from Alabama actually voted for those provisions with me in the Judiciary Committee? These are not dangerous changes. These are not irresponsible changes. These are not changes that have anything to do with legitimate efforts to try to stop the terrorists. I so thank the Senator. I always enjoy debating him. He is the one Senator who has come down here and engaged on this today. I appreciate that. But I wish the debate could be about the questions that have arisen having to do with notice issues in sneak and peek, whether there is going to be a stronger provision on national security letters, whether there is going to be a provision on library business records to make sure it is tied to terrorists. The only reason I am doing this has to do with those kinds of provisions, not the issues the Senator from Alabama raised on which I happen to, in large part, agree.

Mr. FEINGOLD. Mr. President, reserving the right to object, I ask to be recognized at the completion of the Senator's speech.

Mr. FEINGOLD. Mr. President, I ask unanimous consent to be recognized at the conclusion of the remarks of the Senator from Virginia and the Senator from Arkansas.

Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, if the Senator is asking me a question, I am happy to respond.

Mr. FEINGOLD. I spoke at some length this morning about this issue which I call the numbers game on the sneak and peek. Of course, the sneak-and-peek provision is not my only concern. There are four or five areas. But I am very concerned about the length of time that somebody does not get notice that the FBI has come into their home without their being aware of it and the idea that somehow, after very careful court decisions said there will be exceptions to the requirements of the fourth amendment for perhaps 7 days--that was the standard in the court decisions upon which these unusual sneak-and-peek provisions were based--then to somehow have it become reasonable to have a whole month, a 30-day period, strikes me as extreme. The 7-day standard was not picked out of the air. The 7-day standard was based on those court decisions which made the unusual law, in terms of our history as a country in the prohibition against unreasonable searches and seizures--the 7 days was based on those court decisions. So, yes, 30 days, four times more, is unreasonable. After the Government has come into somebody's home and they have had 7 days, why is it that they should not have to come back and get permission to do that for a longer period of time? What is the need for the Government to have 30 days to not tell somebody to do that, when you remember that the Senate version you and I both voted for had the 7-day period?

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FEINGOLD. Mr. President, it is my understanding the Senator from New Hampshire is going to make some remarks and I ask unanimous consent that I be recognized after he has completed his remarks.