Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I send an amendment to the desk and ask for its immediate consideration.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I want to add my congratulations to the authors of the CAN-SPAM Act. This is an important topic, and I am pleased that the Senate passed this bill. The Internet is a medium that in under a decade has completely changed the way we live in this country. And it still has enormous untapped potential to enrich our lives and improve and expand communications and commerce for all of our citizens. E-mail has been called the ``killer application'' of the Internet, and it is truly ubiquitous in our daily lives in a way that no one could have predicted only a few short years ago. But over the past few years, the spam problem has come to threaten the utility of e-mail in very serious way. By passing this bill, the Senate has begun to address some of the worst abuses false and misleading headers and subject lines, fraudulent and pornographic solicitations, the harvesting of addresses and the hijacking of addresses to send unsolicited e-mail. I am pleased also that the bill will allow legitimate commercial e- mail to continue to be sent as long as the sender provides a way for the recipients to indicate that they do not want to receive such e-mail in the future. Not all unsolicited commercial e-mail is bad. E-mail is an inexpensive way for businesses to advertise their products and we should not try to stamp out all such communications. At the same time, some people don't want to receive such e-mails at all and they should be able to make that fact known and have their wishes respected. In addition to requiring that unsolicited commercial e-mail give consumers the ability to opt out of future such communications, I am pleased that portions of Senator Schumer's bill, which I have cosponsored, will be incorporated into this bill because I believe a Do-Not-Email List, modeled on the very popular Do-Not-Call List recently activated by the FTC, is something that should be created. Senator Schumer's proposal is a sensible and measured approach that I think will help get a Do-Not-Email List off the ground promptly. It is time to stop spam from bogging down the great promise of the Internet and e-mail. I am pleased to have voted for this important bill, and I appreciate all the efforts of the Senators who have brought us to this point.

Mr. FEINGOLD

Mr. FEINGOLD. I yield myself as much of our time as I require.

Mr. FEINGOLD

Mr. FEINGOLD. October 26 will mark the second anniversary of the USA PATRIOT Act. I wish to speak today about the continuing and growing controversy surrounding that law, which was passed just 6 weeks after the September 11 terrorist attack. I was the only Senator to vote against the PATRIOT Act. As I said during the debate in the fall of 2001, the act contained many provisions that were necessary and appropriate to help protect our Nation against terrorism. I still believe that. But I also argue that the PATRIOT Act went too far; that it threatened our citizens' constitutional rights and liberties. That is why I could not support it and why I insisted on offering amendments to the bill on the floor. Today, 2 years later, I still believe that as well. An increasing number of Americans have agreed and have expressed their concerns that certain provisions of the PATRIOT Act threaten the rights and liberties guaranteed by our Constitution for over 200 years. The chorus of voices of doubt has grown so loud that the Bush administration has responded but not, I am sorry to say, by addressing these concerns in a constructive and open way. Rather, the administration has initiated what seems to be a public relations campaign in recent weeks to simply defend the PATRIOT Act in its entirety. The Attorney General has gone on the road and on the Internet to extol the virtues of the law. Speaking before hand-picked audiences of law enforcement personnel, he has ridiculed and dismissed those who have raised concerns about the law. A few weeks ago he denounced ``the charges of the hysterics'' as ``castles in the air, built on misrepresentation, supported by unfounded fear, held aloft by hysteria.'' I think these words are unfortunate, and in its zeal to defend the act the administration appears unwilling to even acknowledge the legitimate concerns of many Americans; and it objects to commonsense proposals to protect privacy and civil liberties that would not in any way undermine the fight against terrorism--proposals such as my bill, the Library, Bookseller, and Personal Records Privacy Act, and Senator Craig's bill, the SAFE Act, which I also strongly support, which would protect the constitutional rights of innocent citizens, while still allowing the FBI to do its job to protect our Nation from another terrorist attack. As Members of Congress, we have taken a solemn oath to uphold the Constitution of the United States. The President and the executive branch officials, of course, take this same oath. The burden is on the administration, which sought the powers included in the PATRIOT Act and which now seeks even more powers, to show that the current law and proposed new laws are consistent with the Constitution. Let me take a moment to remind my colleagues how a commitment to individual rights became part of the founding principles of our Nation and enshrined as the Bill of Rights. In 1787, in the halls of the State House of Pennsylvania in Philadelphia, GEN George Washington, who led our Nation to victory during the Revolution, convened the Constitutional Convention. A number of great political figures were delegates to that convention. Joining Washington were other distinguished Americans such as James Madison, Benjamin Franklin, Alexander Hamilton, and George Mason. Mason participated in the Convention, but he was concerned that the deliberations would result in a Constitution creating a central government with too much power over the States and individuals. Mason, a patriotic American, who loved his newly found freedom from British rule, had reservations when he made the trip to Philadelphia. Prior to the Convention, he had written a bill of rights for the State Constitution of Virginia. He urged delegates to the Convention to include a bill of rights also in the national Constitution. But a majority of delegates initially disagreed with Mason. When the draft of the Constitution was released, it failed to contain a bill of rights or any other explicit protection for the rights of individuals. Mason was bitterly disappointed. Mason was concerned that, without any explicit protection for individual liberties, the Constitution would open the doors to tyranny by a central government. Why? Because our experience with British rule, in which the colonial power was able to infringe on individual rights, was still very much on his mind. So after the Constitutional Convention adjourned, Mason continued to push for a bill of rights. During the next 2 years, as the Constitution made its way to the States for consideration and ratification, the American people came to agree with Mason, and he prevailed. Thomas Jefferson wrote to Madison that a bill of rights was ``what the people are entitled to against every government on earth.'' Another statesman, Richard Henry Lee, who was one of the signers of the Declaration of Independence, said provisions were needed to protect ``those essential rights of mankind without which liberty cannot exist.'' Madison, who was initially opposed to including a bill of rights, was persuaded. An explicit protection for the rights of people or a bill of rights was needed in our Nation's governing document. So, Mr. President, on September 25, 1789--almost exactly 214 years ago--the First Congress of the United States proposed 12 amendments to the Constitution. Ten of these amendments were ratified 2 years later by the legislatures of at least three-fourths of the States. The remaining two amendments relating to compensation for Members of Congress and the number of constituents per Representative were not ratified at that time. The first 10 amendments to the Constitution, of course, are what Americans now know as the Bill of Rights. The first amendment guarantees freedom of speech, freedom of religion, and freedom of association. The second amendment guarantees the right to bear arms. The fourth amendment protects against unreasonable search and seizures. The fifth amendment ensures that no person shall be deprived of life, liberty, or property without due process of law. The sixth amendment guarantees a right to counsel and a right to trial by jury to those charged with crimes. During the debate on our Constitution, our Nation was at a critical juncture: Do we follow a path toward a highly centralized government with the potential for tyranny or do we follow a path toward a government with checks and balances, respect for States in a Federal system, and protections of individual rights and liberties? The decisions made in the first days of the Republic have stood the test of time. They, of course, created the greatest democracy on Earth and a governmental structure that is most protective of individual freedom and liberty in history. Today we stand at another critical crossroads. As our Nation faces new terrorist threats, we must respond to those threats without compromising the civil liberties that are the bedrock of our country. We must balance the legitimate needs of law enforcement against the privacy and freedom of all Americans, and that is not an easy task. One thing I know, the solution is not simply to grant the Federal Government more and more power to conduct surveillance, eavesdrop, and collect information on law-abiding Americans. The debate about the PATRIOT Act echoes the debate over two centuries ago in the halls of the statehouse in Philadelphia. Today, as then, we must take from our experience as a nation. We must remember the critical role the Constitution and, in particular, the Bill of Rights, has had in guiding our country through national crises, war, and armed conflicts at home and abroad, including the War of 1812, the Civil War, the two World Wars, and the cold war. The Constitution has survived and flourished throughout our history, and respect for individual freedom and privacy has steadily advanced. In the immediate aftermath of the September 11, 2001, terrorist attacks, there was, understandably, a great desire to give the administration the tools it said it needed to fight terrorism and prevent another terrorist attack. But with time to study and reflect after enactment of the PATRIOT Act 2 years ago, many Americans have now paused and come to see a very real potential for abuse of power and infringement of privacy and civil liberties unleashed by this law. There is strong and growing bipartisan support for changes to the act to protect our rights and liberties. I am confident that this right- left and moderate coalition of support will continue to grow and eventually occupy the center as more and more Americans learn what the law means. The coalition includes Americans for Tax Reform, the American Conservative Union, and the Free Congress Foundation, as well as the ACLU and the Open Society Policy Center. At the State and local level, 3 States and over 180 cities and counties have enacted provisions and resolutions expressing concern with the PATRIOT Act. These States and communities represent over 25 million residents, and these localities are not just left-leaning college towns, such as Madison and Berkeley, but also right-leaning, libertarian regions of the country such as Flagstaff, AZ, Boise, ID, and the State of Alaska. Here in Congress several legislative proposals have now been introduced proposing changes to the PATRIOT Act to protect privacy and civil liberties. During its consideration of the Commerce-State-Justice appropriations legislation, the House adopted an amendment by Representative Otter to restrict the FBI's use of the ``sneak and peak'' power granted by the PATRIOT Act. The Otter amendment received overwhelming support, including 113 votes from Republican Members of the House. In the Senate, Senator Murkowski of Alaska and Senator Wyden of Oregon have introduced a bill, S. 1552, proposing to modify a number of the provisions of the PATRIOT Act. As I mentioned earlier, I have introduced the Library, Bookseller, and Personal Records Privacy Act, S. 1507, and now there is the SAFE Act, S. 1709, which I also mentioned earlier. I am pleased to join my colleagues Senators Craig, Durbin, Crapo, Sununu, Wyden, and Bingaman in supporting this bill. The SAFE Act does not repeal the PATRIOT Act. It simply proposes reasonable modifications to four particularly troubling PATRIOT Act provisions. These modifications will help to protect civil liberties and privacy by strengthening the role of judges in approving certain kinds of search and surveillance authority expanded by the PATRIOT Act. Specifically, the SAFE Act would strengthen the role of the courts in approving delayed notice searches, requests for access to library, medical, and other records containing sensitive personal information, and roving wiretaps in FISA cases. These are the issues I first raised in the fall of 2001 as the main reasons why I believe the PATRIOT Act was flawed and threatened fundamental constitutional rights and protections. For me and those few of my colleagues who supported my business records and roving wiretap amendments to the PATRIOT Act, it sure was a lonely feeling in October 2001. I must say, I did not imagine at that time that reasonable minds would begin to prevail so soon. Now 2 years later, we have a strong bipartisan effort to change these provisions, and I am pleased to see that. I look forward to working with Senator Craig and my other colleagues on both sides of the aisle to get the bill passed. I am still very troubled by the administration's response to legislative efforts, such as those I just mentioned, and to the public's outcry to repeal or modify the PATRIOT Act. The administration has launched an effort to defend the PATRIOT Act, but its defense only tells the American people half the story at best. Its PR campaign eagerly describes the new powers the PATRIOT Act gives to law enforcement, but it doesn't say anything about what the law potentially takes away from the American people: our liberty and our privacy. Perhaps most disturbing, the administration's campaign fails to seriously address section 215, which I have long seen as the act's most troubling provision. Both my bill and the Craig bill contain the same proposal to modify this provision. Section 215 allows the FBI access to the private details of the lives of law-abiding Americans--which books we have checked out from the library, what our medical records reveal, and what charges we have made on our credit cards. Americans reasonably expect the details of their private lives, from what they read to what drugs they have been prescribed, to remain just that--private. The PATRIOT Act undermines that expectation. Under section 215, all the FBI has to do is assert that the records are ``sought for'' an international terrorism or foreign intelligence investigation. As long as the FBI makes such an assertion--and it is just an assertion--the secret foreign intelligence court is required to issue an order allowing access to those records. The courts cannot review the merits of the subpoena request. Both my bill and the Craig bill would simply require the FBI to set forth specific facts showing that the records sought relate to a suspected terrorist or spy. Thus, the Government could not ask, say, Amazon.com or e-Bay to turn over the records of law-abiding customers. It could, however, obtain records of those customers who are actually suspected terrorists. My bill would allow the FBI to follow up on legitimate leads by also respecting the privacy and civil liberties of law-abiding Americans. The administration has recently asserted that the criticism of section 215 is baseless because this section has not yet been used since it was enacted. The administration says that librarians concerned about access to Americans' reading records are hysterics and have been duped by civil rights advocates and Members of Congress. I am disappointed that the administration would use such rhetoric. No one has been duped, and the people concerned about their privacy are not in hysterics. They are simply worried, as I am, about the Government possessing a power that has the potential to intrude on their civil liberties, particularly since the statute itself prohibits a library, bookseller, or anyone else who has been served a subpoena from making that information public. What I said before the PATRIOT Act was passed, and continue to maintain now, is that section 215 presents the potential for abuse. I will say it again, because I cannot emphasize this enough, section 215 presents the potential for abuse. Regardless of whether the provision has not yet been used, that potential still exists, and the public has a reason to be concerned. No amount of ridicule or spin can change that. The recent disclosure that section 215 has never been used does not address the concern that it could be used in a way that would violate the privacy of innocent Americans. But it does raise another question: If the section has never been used in the 2 years since the bill was passed, the 2 years immediately following the September 11 attacks, when concern over terrorism has been at its peak, including numerous periods of orange alert status, then whey is this provision even on the books? Or at the least, what possible objection could there be to modifying it so that the potential for abuse is eliminated? Both my bill and the Craig bill would protect the rights of law- abiding citizens by limiting the FBI's access only to information that pertains to suspected terrorists or spies. Our legislation recognizes the legitimate uses of section 215 and would not interfere with the use of the provision to investigate and prevent terrorism. I urge the administration to open an honest dialogue with Congress and the American people to address the PATRIOT Act's specific problems instead of continuing to try to sell it. We do not need a government that forces its authority on the people and rejects and ridicules legitimate, heartfelt, and principled criticism of its actions and its laws. That is what our Founding Fathers strived to ensure would never happen again. The Federal Government should be responsive and accountable to the people. But most importantly, the Federal Government should respect and uphold the Constitution. Unfortunately, the administration has not only failed to engage in an honest dialogue about the PATRIOT Act, but it now proposes that Congress grant to it even more power. The American people have expressed very legitimate and sincerely-held concerns about the PATRIOT Act. The administration should answer those concerns honestly and forthrightly before seeking more power. The administration has announced its support for three legislative proposals to expand executive branch power and diminish the role of judges, an essential part of our Nation's system of checks and balances. One proposal grants the Attorney General significant power to compel people to testify or the production of documents, all without prior court approval. A second proposal broadens the presumption of pretrial detention to cases that may not even involve terrorism. Finally, the third proposal expands the Federal death penalty. Criticism of the PATRIOT Act appears to have had the effect of influencing the administration's strategy to secure this new power, but not the substance of its effort. Rather than proposing a single bill with various provisions to expand the PATRIOT Act, the administration instead appears to have given its blessing to many little ``PATRIOT IIs.'' The administration is apparently reluctant to allow these proposals to be linked to the PATRIOT Act. In fact, the Justice Department has even tried to suggest that they are unrelated. No one is fooled, however, least of all the American people. The fact is that these proposals did appear in the draft ``Patriot II'' leaked earlier this year and entitled the Domestic Security Enhancement Act. ``Patriot II,'' whether contained in one bill or a series of bills, is the wrong response at the wrong time. An increasing number of Americans want to know exactly how this administration is using the powers it already has and want the PATRIOT Act to be amended to protect privacy and civil liberties. The burden is on the administration to show Congress and the American people why current law is inadequate, why it needs even more power, and how the powers it already has and the new powers it seeks are consistent with the Constitution and Bill of Rights. That would be the patriotic thing to do. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I oppose the Class Action Fairness Act, and I will vote against the motion to proceed. The main reason for my opposition is that notwithstanding its title, I do not think this bill is fair. I do not think it is fair to citizens who are injured by corporate wrongdoers and are entitled to prompt and fair resolution of their claims in a court of law. I do not think it is fair to our State courts, which are treated by this bill as if they cannot be trusted to issue fair judgments in cases brought before them. I do not think it is fair to State legislatures, which are entitled to have the laws that they pass to protect their citizens interpreted and applied by their own courts. This bill is not only misnamed, it is bad policy. It should be defeated. First, let me note that S. 1751 is a different bill than was reported by the Judiciary Committee. It includes a new and potentially very significant provision concerning mass torts. A provision on this topic was in the original bill, but was stricken in committee. Now it is back, but with some complicated exceptions. The ramifications of this provision are not apparent on first reading, and it certainly would have been preferable for this kind of fine tuning to have been considered by the Judiciary Committee. Make no mistake, by loosening the requirements for Federal diversity jurisdiction over class actions, S. 1751 will result in nearly all class actions being removed to Federal court. This is a radical change in our Federal system of justice. We have 50 States in this country with their own laws and courts. State courts are an integral part of our system of justice. They have worked well for our entire history. It is hard to imagine why this Senate, which includes many ardent defenders of federalism and the prerogatives of State courts and State lawmakers, would support such a wholesale stripping of jurisdiction from the States over class actions. In my opinion, the need for such a radical step has not been demonstrated. Yes, there are abuses in some class actions suits. Some of the most disturbing have to do with class action settlements that offer only discount coupons to the members of the class and a big payoff to the plaintiffs' lawyers. But those abuses have occurred in Federal as well as State class actions. This bill does nothing to address those problems; it just moves them all to Federal court. I note that a substitute amendment being crafted by the senior Senator from Louisiana will include a provision to address discount coupons. It is puzzling to me that such a provision is not contained in the underlying bill. Could it be that these coupon settlements, so often held up as the poster child for what is wrong with class actions, are actually something that the defendants' bar that is promoting this bill wants to preserve? We will find out if the Senate does proceed to the bill and an amendment is offered on that issue. Class actions are an extremely important tool in our justice system. They allow plaintiffs with very small claims to band together to seek redress. Lawsuits are expensive. Without the opportunity to pursue a class action, an individual plaintiff often simply cannot not afford his or her day in court. But through a class action, justice can be done and compensation can be obtained. There are three possible outcomes of this bill being enacted. Either the State courts will be deluged with individual claims, since class actions can no longer be maintained there, or there will be a huge increase in the workload of the Federal courts, resulting in delays and lengthy litigation over procedural issues rather than the substance of the claims, or many injured people will never get redress for their injuries. I don't believe any of these three choices are acceptable. Particularly troubling is the increase in the workload of the Federal courts. These courts are already overloaded. The Congress has led the way in bringing more and more litigation to the Federal courts, particularly criminal cases. Criminal cases, of course, take precedence in the Federal courts because of the Speedy Trial Act. So the net result of removing virtually all class actions to Federal court will be to delay those cases. There is an old saying with which I am sure we are all familiar: justice delayed is justice denied. I hope my colleagues will think about that aphorism before voting for this bill. Think about the real world of Federal court litigation and the very real possibilities that long procedural delays in overloaded Federal courts will mean that legitimate claims may not ever be heard. At the very least, we should provide in this bill some priority to class certification motions brought in Federal class actions. One little noticed provision of this bill illustrates the possibilities for delay that this bill provides, even to defendants who are not entitled to have a case removed to Federal court under the bill's relaxed diversity jurisdiction standards. Under current law, if a Federal court decides that a removed case should be remanded to State court, that decision is not appealable. The only exception is for civil rights cases removed under the special authority of 28 U.S.C. Sec. 1443. But this bill allows defendants to immediately appeal a decision by a Federal district court that a case does not qualify for removal. That means that a plaintiff class that is entitled even under this bill to have a case heard by a State court may still have to endure years of delay while the appeal of a procedural ruling is heard. Where is the fairness in that? Some in the business community have expressed concern about resolving nationwide class actions, like some of the tobacco litigation, in a single State court. I can understand why that might seem unfair to some. But this bill does not just address that situation. It also prevents a group of plaintiffs who are all from the same State from pursuing a class action in their own State courts if even one defendant is from another State. The proponents of this bill have chosen a remedy that goes far beyond the alleged problem. That raises questions about what the intent behind this bill really is. It is important to remember that this debate is not about resolving questions of Federal law in the Federal courts. Federal question jurisdiction already exists for that. Any case involving a Federal statute can be removed to Federal court under current law. This bill takes cases that are brought in State court solely under State laws passed by State legislatures and throws them into Federal court. This bill is about making it more time consuming and more costly for citizens of a State to get the redress that their elected representatives have decided they are entitled to if the laws of their State are violated. Diversity jurisdiction in cases between citizens of different States has been with us for our entire history. Article III, section 2 of the Constitution provides: ``The judicial Power shall extend . . . to Controversies between Citizens of different States.'' This is the constitutional basis for giving the Federal courts diversity jurisdiction over cases that involved only questions of State law. The very first Judiciary Act, passed in 1789, gave the Federal courts jurisdiction over civil suits between citizens of different States where over $500 was at issue. In 1806, in the case of Strawbridge v. Curtiss, the Supreme Court held that this act required complete diversity between the parties--in all other instances, the Court said, a case based on State law should be heard by the State courts. So this bill changes a nearly 200-year-old practice in this country of preserving the Federal courts for cases involving Federal law or where no defendant is from the State of any plaintiff in a case involving only State law. Why is such a drastic step necessary? Why do we need to prevent State courts from interpreting and applying their own State laws in cases of any size or significance? One argument we hear is that the trial lawyers are extracting huge and unjustified settlements in State courts, which has become a drag on the economy. We also hear that plaintiffs' lawyers are taking the lion's share of judgments or settlements to the detriment of consumers. But a recent empirical study contradicts these arguments. Theodore Eisenberg of Cornell Law School and Geoffrey Miller of NYU Law School recently published the first empirical study of class action settlements. Their conclusions, which are based on data from 1993-2002, may surprise some of the supporters of this bill. First, the study found that attorneys' fees in class action settlements are significantly below the standard 33 percent contingency fee charged in personal injury cases. The average class action attorney's fee is actually 21.9 percent. In addition, the attorneys' fees awarded in class action settlements in Federal court are actually higher than in State court settlements. Attorney fees as a percent of class recovery were found to be between 1 and 6 percentage points higher in Federal court class actions than in State court class actions. A final finding of the study is that there has been no appreciable increase in either the amount of settlements or the amount of attorneys' fees awarded in class actions over the past 10 years. The study indicates that there is no crisis here. No explosion of huge judgments. No huge fleecing of consumers by their lawyers. This bill is a solution in search of a problem. It is a great piece of legislation for wrongdoers who would like to put off their day of reckoning by moving cases to courts that are less convenient, slower, and more expensive for those who have been wronged. It is a bad bill for consumers, for State legislatures, and for State courts. Mr. President, if the motion to proceed is adopted, I expect there will be many amendments offered. In an area like this the details matter, and if we are going to have class action reform we need a full and fair debate on the details with the opportunity to offer amendments. But the best result is for the Senate not to consider this bill at this time. I do not believe this unfair Class Action Fairness Act is ready to be considered on the floor, and I will vote no on the motion to proceed.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, earlier this year, the Senate passed S. 3, the Partial Birth Abortion Ban Act. I opposed that bill and instead supported a constitutionally sound alternative offered by my colleague, Senator Durbin. The Durbin alternative would ban post viability abortions unless the woman's life is at risk or the procedure is necessary to protect the woman from grievous injury to her physical health. I understand that people on all sides of this issue hold sincere views. I respect those who oppose abortion on principle. Like most Americans, I would prefer to live in a world where abortion is unnecessary. I support efforts to reduce the number of abortions through family planning and counseling to avoid unintended pregnancies. I have always believed that decisions in this area are best handled by the individuals involved, in consultation with their doctors and guided by their own beliefs and unique circumstances, rather than by government mandates. I support Roe v. Wade, which means that I agree that the government can restrict abortions only when there is a compelling state interest at stake. I feel very strongly that Congress should seek to regulate abortions only within the constitutional parameters set forth by the U.S. Supreme Court. Unfortunately, the conference report fails to cure the flaws in the bill that make it unconstitutional on its face. The conference report's description of the procedure that it would ban is so vague and overbroad that it could place an undue burden on a women's right to choose by encompassing safe and common abortion procedures used prior to viability. I am also disappointed that the conference report failed to adopt the Senate's language in S. 3 reaffirming the Senate's commitment to Roe and its belief that Roe should not be overturned. The Senate had a straight up-or-down vote on this language, which was offered by my colleague Senator Harkin. A majority of the Senate agreed to support the Harkin amendment. The House was wrong to remove this language during its consideration of the bill, and I am disappointed that the conference report failed to adopt the Senate's position on this issue. The Senate should only legislate in this area in a way that is constitutionally sound. This conference report does not meet that test and I cannot support it.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I do not support the administration's policy in Iraq. After listening to the administration's hard sell, after hearing a series of ever-shifting justifications for our policy, after discovering that some of these justifications were of extremely dubious credibility, after confronting the administration's reluctance to straightforwardly acknowledge the costs and commitments entailed in the occupation of a major Middle Eastern country, after watching the administration alienate potential allies who could help us share this burden--after all of this, I do not support the notion that American taxpayers should be saddled with astronomical burdens and tremendous debt to support this misguided approach. I wish our policy had been different. But I must deal with the reality before us today. The stakes are too high to do anything else. I cannot oppose this bill. I cannot pull the rug out from under our brave troops on the ground, who were called to serve and now find themselves in harm's way, confronting suicide bombings and guerilla warfare tactics. This bill contains resources that they need, and I will cast my vote to get them those resources. I also recognize that stability and reconstruction in Iraq are in our national interest. For years now, I have urged my colleagues to recognize the dangers inherent in weak and failing states around the world. I have studied the appeal that such states hold to criminal opportunists, including terrorists. And I know that a weak or failing Iraq would present a threat to this country. To abruptly pull the plug on reconstruction, to leave Iraq to the disorder that filled the vacuum left by the fall of the Saddam Hussein regime, would make us less safe, less secure. So I will not vote against the final passage of this very problematic bill. But I want to be very clear about two points. My vote does not suggest that I am resigned to accepting the administration's policy. I am not, and I will continue to urge them to change it. That is my responsibility as a Member of this body, and I will not abandon it. My vote also does not mean that I will support future funding for the Iraq mission if the administration fails to put that mission on a sounder footing. Over 330 U.S. troops have lost their lives in Iraq-- and over 190 of those deaths occurred after the President declared an end to major military operations. Many more have been seriously injured. The administration has tried to argue that Iraq is the central battlefield in the war on terror. I strongly disagree with that point of view. Iraq is at best a distraction from that war, which should be our country's main focus. At worst, our invasion and occupation of Iraq may well turn out to be a major setback in our efforts to combat terror. The extremely well-respected International Institute for Strategic Studies recently released a report indicating that ``war in Iraq has probably inflamed radical passions among Muslims and thus increased al-Qaida's recruiting power and morale and, at least marginally, its operating capability.'' I remember what the Vietnam war did to this country. I remember when good people convinced themselves that they had to keep accepting terrible losses because of sunk costs, I remember those desperate and destructive efforts to salvage the credibility of long-since discredited policy. Iraq is not Vietnam, but the lessons of history must not be forgotten. Without a better plan, without burden sharing, without a clear strategic vision that refocuses on this country's first foreign policy priority--he fight against the terrorists who attacked this country on September 11, 2001, and their allies--without these changes, withdrawing from Iraq will be the right thing to do. I would like to comment on one of the most contentious issues that arose during the debate on the supplemental bill--the debate about grants versus loans. This week I was unable to support the amendment offered by Senator Dorgan to the supplemental bill before the Senate. I do not believe that it is in our national interest to have U.S. authorities making decisions about how to use future Iraqi oil revenues. On this point, the President is right. To do so would play into the hands of those who would promote the ugliest, most distorted images of American motives abroad, conjuring images of imperialism and corruption, and undermining one of our greatest sources of strength internationally--the compelling power of our principles and ideals. But while the President is right about that point, he is wrong to place this heavy burden almost entirely on the shoulders of American taxpayers. I am by no means enthusiastic about financing Iraqi reconstruction with huge grants. Iraq's reconstruction needs should be met, to the extent possible, by Iraqis themselves. But the decisions about the use of Iraqi oil should be Iraqi choices, not decisions made by American occupation authorities. That is why I was pleased to support the amendment offered by Senators Bayh and Nelson, which converted a portion of the grants to loans, and leverages this approach to encourage international debt forgiveness. This amendment did not involve any U.S. decisions about Iraq's future oil revenues, rightly leaving those decisions to the Iraqi people. Once again, I urge the administration to take concrete steps to build meaningful international support and ensure real burden-sharing in the international community. I was pleased to support the amendment offered by Senators Byrd and Kennedy, which called on the administration to present a concrete and detailed plan for working with the rest of the world to bring stability to Iraq. I am disappointed that the amendment was defeated. The best way to avoid making unfair demands on the Iraqi and American peoples is to give our allies a meaningful role in the country and ask that they in turn contribute to reconstructing the country. I am pleased that three amendments I offered to this bill were adopted. First, I offered an amendment to establish an inspector general for the Coalition Provisional Authority, so that there will be one auditing body completely focused on ensuring that taxpayer dollars are spent wisely and efficiently, and that this effort is free of waste, fraud, and abuse. I am troubled by some of the seemingly inexplicable requests and figures contained in the administration's funding request--the $6,000 phones, the state-of-the-art postal system, the new monuments, all of them in an ``emergency'' request. At the very least, we should take concrete steps to ensure that vigorous oversight and auditing mechanisms are in place to protect each and every taxpayer dollar. I also offered an amendment to help alleviate some of the difficulties faced by families of military personnel deployed or preparing to deploy for a contingency operation. My amendment allows a spouse, son, daughter, or parent who already qualifies for benefits under the Family and Medical Leave Act to use their benefits for issues arising from one additional set of circumstances--the deployment of a family member. Our military families--be they active duty, Guard, or Reserve--are coping with tremendous strains and a great deal of unpredictability. Longstanding childcare arrangements can be suddenly upended; in a matter of days, legal powers may need to br transferred to allow a spouse to maintain control of the home while his or her partner deploys. This amendment has been endorsed by the Military Officers Association of America, the Enlisted Association of the National Guard of the United States, and the National Partnership for Women and Families. I am delighted that it was adopted, and I hope it brings some measure of relief to the families who are sacrificing so much. I was also pleased that two other amendments to help our Guard and Reserve were adopted. One was an amendment offered by Senator Bill Nelson to provide $10 million for the Family Readiness Program of the National Guard. This program provides needed support services and assistance for Guard families prior to, during, and after deployment. And I was pleased to vote for an amendment offered by Senator Durbin, which also passed, that would ensure that Federal employees who take leave without pay in order to serve do not see a reduction in their pay. In addition, I thank the managers for accepting a very modest amendment that I offered calling for the Coalition Provisional Authority to regularly post up-to-date information in both English and Arabic on its Web site about oil revenues, seized and frozen assets, and how these resources are spent. Recently the Advisory Group on Public Diplomacy for the Arab and Muslim World reported on how much needs to be done to address the inadequacies of our current public diplomacy efforts. Making a good-faith effort to be transparent when it comes to what is happening to Iraqi resources is just basic good sense, and that means making an effort to communicate in Arabic. I believe that the amendments I have discussed are small steps in the right direction, but I remain deeply concerned about where the administration's policy is leading us overall. I hear the concerns of my constituents every day--constituents who wonder when their loved ones in the military will come home, constituents concerned about the massive deficit, constituents who feel betrayed by the mixed messages and shifting justifications of the administration. Voting on this bill does not mean that Congress can set aside the issue of Iraq. In fact, voting on this bill should make it painfully clear to all of us--we have a great deal of work to do to get our policy on a firm footing and we cannot afford to wait any longer.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, in amendment No. 1834 the distinguished Senator from Rhode Island, Mr. Reed, raises a number of good points about our global commitments, especially those in Iraq. The increased operational tempo is straining the Army, the National Guard, and the Reserves. We do run the risk of hurting recruitment and retention in both the Active and Reserve component. We are committing our troops to such an extent that we may not be able to sustain all of those commitments indefinitely. I am greatly concerned about these and other issues raised by the distinguished Senator from Rhode Island. However, I do not agree that increasing the end strength of the Army is the answer to these problems. The increase in end strength does not necessarily solve our immediate problem of overextended troops. It will take years to get the 10,000 soldiers recruited, trained, equipped, and deployed. We need solutions now. We need more foreign troops in Iraq and we need to work with the international community toward that goal. We also need to work with our allies to fight against terrorism with more than just military might. Most importantly, we need to refocus ourselves on the fight against terrorism instead of diverting our focus to ideologically driven wars of our choosing. Furthermore, according to rough estimates done by the CBO, increasing the end strength of the Army by 10,0000 will cost $409 million this year. Senator Reed's amendment fully offsets that amount. However, the following year the cost of this end strength increase will jump to over $800 million a year, and it will continue to grow. By passing this amendment, we will either be locking in an increase in Department of Defense spending of over $800 million a year or asking the Army and/or the other military services to simply absorb that cost. Neither option seems good to me. But the Senator from Rhode Island was right to bring this debate to the Senate. I agree with my colleague that the important issues he raised must be dealt with expeditiously and I look forward to working with him to address these problems. Amendment No. 1852

Mr. FEINGOLD

Mr. FEINGOLD. That is right.

Mr. FEINGOLD. Mr. President, I offer an amendment to the bill concerning the inspector general for authority for Iraq. My understanding is it is going to be accepted.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. FEINGOLD. My understanding is the chairman intends to accept this amendment.

Mr. FEINGOLD. Absolutely. Extending FMLA benefits to families of National Guard members.

Mr. FEINGOLD. Mr. President, I send an amendment to the desk on behalf of myself, Senator Wyden, and Senator Dayton, and ask for its immediate consideration.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. FEINGOLD. Mr. President, my amendment would bring a small measure of relief to the families of our brave military personnel who are being deployed for the ongoing fight against terrorism, the war in Iraq, and other missions in this country and around the world. The men and women of our Armed Forces undertake enormous sacrifices in their service to our country. They spend time away from home and from their families in different parts of the country and different parts of the world and are placed into harm's way in order to protect the American people and our way of life. And, of course, we owe them a huge debt of gratitude for their dedicated service. The ongoing deployments for the fight against terrorism and for the campaign in Iraq are turning upside down the lives of thousands of active duty, National Guard, and Reserve personnel and their families as they seek to do their duty to their country and honor their commitments to their families, and, in the case of the Reserve components, to their employers as well. Today, there are more than 164,000 National Guard and Reserve personnel on active duty. Some of my constituents are facing the latest in a series of activations and deployments for family members who serve our country in the military. Others are seeing their loved ones off on their first deployment. All of these families share in the worry and concern about what awaits their relatives and hope, as we do, for their swift and safe return. Recently, many of those deployed in Iraq have had their tours extended beyond the time they had expected to stay. This extension has sometimes played havoc with the lives of those deployed and their families. Worried mothers, fathers, spouses, and children expecting their loved ones home before Thanksgiving must now wait until months after Christmas before their loved ones' much-anticipated homecoming. The emotional toll is huge. So is the impact on a family's daily functioning as bills still need to be paid, children need to get to school events, and sick family members must still be cared for. Our men and women in uniform face these challenges without complaint. But we should do more to help them and their families with the many things that preparing to be deployed requires. Often, military personnel and their families are given only a couple of days' notice that their units will be deployed. These dedicated men and women then have only a very limited amount of time to get their lives in order. For members of the National Guard and Reserves, this includes telling their employers that they will be deployed for, in many cases, up to a year and a half. I commend the many employers around the country for their understanding and support when an employee or a family member of an employee is called to active duty. In preparation for a deployment, military families often have to scramble to arrange for child care, to pay bills, to contact their landlords or mortgage companies, and take care of other things that many of us, of course, deal with on a daily basis. The amendment I offer today would allow eligible employees whose spouses, parents, sons, or daughters are military personnel who are serving on or called to active duty in support of a contingency operation to use their Family and Medical Leave benefits for issues relating to or resulting from that deployment. These instances could include preparation for deployment or additional responsibilities that family members take on as a result of a loved one's deployment, such as child care. Let me make sure there is no confusion about what this amendment does and does not do. This amendment does not expand eligibility for FMLA to employees not already covered by FMLA. It does not expand FMLA eligibility to active duty military personnel. It simply allows those already covered by FMLA to use those benefits in one additional set of circumstances--to deal with issues directly related to or resulting from the deployment of a family member. I was proud to cosponsor and vote for the legislation that created the landmark Family and Medical Leave Act during the early days of my service to the people of Wisconsin as a Member of this body. This important legislation allows eligible workers to take up to 12 weeks of unpaid leave per year for the birth or adoption of child, the placement of a foster child, to care for a newborn or newly adopted child or newly placed foster child, or to care for their own serious health condition or that of a spouse, a parent, or a child. Some employers offer a portion of this time as paid leave in addition to other accrued leave, while others allow workers to use accrued vacation or sick leave for this purpose prior to going on unpaid leave. Since its enactment in 1993, the FMLA has helped more than 35 million American workers to balance responsibilities to their families and their careers. According to the Congressional Research Service, between 2.2 million and 6.1 million people took advantage of these benefits in the year 1999-2000. Our military families sacrifice a great deal. Active duty families often move every couple of years due to transfers and new assignments. The 10 years since FMLA's enactment have also been a time where we as a country have relied more heavily on National Guard and Reserve personnel for more and more deployments of longer and longer duration. The growing burden on these service members' families must be addressed, and this amendment is one way to do so. This amendment has the support of a number of organizations, including the Wisconsin National Guard, the Military Officers Association of America, the Enlisted Association of the National Guard of the United States, and the National Partnership for Women and Families. We owe it to our military personnel and their families to do all we can to support them in this difficult time. I hope that this amendment will bring a small measure of relief to our military families. I urge my colleagues to support my amendment. I ask for the yeas and nays.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I share the Senator's concerns that National Guard and Reserves troops are not being treated equitably when it comes to retirement benefits. This is particularly unfortunate at a time when we are relying more than ever on these brave men and women. The retirement rules need to be changed. While I agree with this amendment in principle, I regret that I cannot support it at this time because of its large budgetary impact. With our Federal deficit spiraling out of control, we need to make sure that we offset--i.e., pay for--large spending measures. Unfortunately, this amendment does not contain an offset. We must also make sure that this important amendment, one with such a large fiscal impact, is thoroughly evaluated. The Congress has recognized the importance of the problem brought to our attention today by the distinguished Senator from New Jersey, Mr. Corzine, and has ordered that the issue be studied as part of a review of reserve compensation. We should allow for the completion of this study as part of our commitment to good stewardship of taxpayers' money. The Senator from New Jersey was right to bring this debate to the floor. The Guard and Reserves have been, and continue to be, heavily relied upon by our country, and we owe it to them to fully address the inequity in retirement rules. I look forward to working with my colleagues in the near future to fix this retirement eligibility issue.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, increased consolidation and market concentration are, without question, prevalent concerns throughout the Nation. In particular, I am deeply disappointed to learn that the pork division of Farmland Foods has been sold to Smithfield Foods in a bankruptcy auction. Acquisition of Farmland Foods by either of the auction's bidders, Smithfield Foods and Cargill, has significant potential to lessen competition, harming both farmers and consumers. In this and many other cases, the Department of Justice has looked the other way in enforcing antitrust law, failing to maintain competitive markets. As I travel around my home State of Wisconsin, agricultural concentration is raised by farmers and growers on a consistent basis. I am greatly concerned that industry trends toward consolidation and concentration are causing great disruption, and sometimes ruin, for our Nation's small- and medium-sized producers. It is my understanding that this acquisition would give Smithfield control of a significant portion of the pork processing industry in the U.S. market access for small and independent pork producers is already inadequate, and this merger will only exacerbate the problems of discrimination, a lack of negotiating power, and the low prices that farmers face. While this acquisition would reduce competition among purchasers of live hogs, I am also concerned about the lack of benefit to consumers. At the other end of the food marketing chain, consumers are not seeing any decreases in the price they pay at the grocery store for these products. Having fewer competitors providing pork products to American consumers is unlikely to result in lower prices in the supermarket. I am disappointed that the Department of Justice did not choose to enforce antitrust laws regarding the acquisition of Farmland Foods by either Cargill or Smithfield Foods. The lack of action by the Department does a disservice to the hard working men and women in the agricultural industry and only functions to increase the mounting obstacles to garner a fair price for their product.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I want to call the Senate's attention to the ongoing crisis in Zimbabwe. For years now, the Government of Zimbabwe, led by President Robert Mugabe, has pursued policies characterized by repression, brutality, corruption and mismanagement. The costs to the people of Zimbabwe have been terribly steep. Alongside intimidation and repression, Zimbabweans must contend with the economic consequences of this disaster. According to The Economist magazine, the country's GDP has shrunk by a third in the past 3 years; inflation has surged over 420 percent and 70 percent of the population lives in poverty. A country that should be an engine of growth in the region has instead become an anchor, dragging down the prospects for increased investment and prosperity. A people that should have been able to unite and focus their energies on fighting the AIDS pandemic that threatens their society is instead coping with the systematic destruction of the rule of law within their borders. Mugabe's government would like the world to believe that it is pursuing a policy of defiance, charting an independent course, and refusing to be bullied by westerners. But this is a smokescreen, a distraction from the fact that when voters are intimidated, it is not the West that is defied, it is the will of the Zimbabwean people. When journalists are tortured and independent media outlets--most recently the popular Daily News--shut down, the bully is not the West, it is the Government of Zimbabwe. There is nothing heroic or revolutionary about the policies pursued by Mugabe's government. Sadly, they are taken from the familiar playbook used for decades by self-serving, dictatorial governments around the world. Secretary of State Powell was right to call on African leaders, and especially South African President Thabo Mbeki, to take a stronger position on the crisis and to re-energize their efforts to help resolve it. Make no mistake, these leaders are not indifferent to the problem. They are coping with waves of Zimbabwean migrants fleeing persecution and the hopelessness of complete economic collapse. They are struggling against the downward force of the economic maelstrom across their borders. But quiet diplomacy is not working, and Zimbabweans continue to suffer. I urge African leaders to tell it like it is, and to express their solidarity with the Zimbabwean people, not the disgraced and corrupt Zimbabwean Government.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I voted in favor of the McConnell amendment today, because I wholeheartedly agree with the sentiments in its resolve clauses expressing the Senate's tremendous admiration and appreciation for our men and women in uniform who have served in Operation Enduring Freedom and Operation Iraqi Freedom. Their contributions and their service deserve our unified and enduring support. However, the findings contained in the amendment seem to link Saddam Hussein's regime to the terrorist attacks on the United States that occurred on September 11, 2001. No evidence supports such a link, and those who continue to confuse these issues do the American people a great disservice, as they encourage an unfocused and unwise approach to our first national security priority, the fight against terrorism.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to call attention to an issue that affects every community in this country, and that is mental illness. Next week is Mental Illness Awareness Week, and I think the best way that we in the Senate can recognize this event is to ensure parity for mental health treatment in our Nation's health care system. Mental illness has a drastic impact not only on the country's health, but also on its economic well-being. According to the 1999 Surgeon General's report on mental illness, the unequal coverage of mental illness treatment results in direct business costs of at least $70 million per year, mostly due to lost productivity and increased use of sick leave. Earlier this year, the President's New Freedom Commission on Mental Health released a report laying forth goals and objectives to transform mental health care in the United States. According to this report, mental illness ranks first among illnesses that cause disability in this country, and the indirect costs of mental illness are estimated to be $79 billion a year. This report goes on to reaffirm the President's call for Federal legislation to provide full parity between coverage for mental health care and for nonmental health care. Over the past two decades we have made great strides in the area of mental illness. Not only are a number of innovative, beneficial treatments available for sufferers of mental illness, but we have also worked to eradicate many of the social stigmas that have too often accompanied mental illness. However we still have much to do for those who suffer from potentially debilitating and destructive mental illnesses. Currently, those with mental illness often struggle to obtain necessary medical treatment, even when they have sufficient health insurance. Employers who offer health benefits to their employees can impose limitations on the treatment of mental illness, while not placing similar limitations on the treatment of physical illness. This discrimination prevents many from obtaining the medical treatment they need. I urge my colleagues in the Senate to answer the President's call, and recognize Mental Illness Awareness Week by ensuring that those suffering from mental illness have access to medical treatments that will help them to preserve the quality of their lives.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I will introduce in the Senate the Reasonable Notice and Search Act. This bill addresses the provision of the USA PATRIOT Act that has caused perhaps the most concern among Members of Congress. Section 213 of the PATRIOT Act, sometimes referred to as the ``delayed notice search provision'' or the ``sneak and peek provision,'' authorizes the Government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises that have been searched. Prior to the PATRIOT Act, secret searches for physical evidence were performed in some jurisdictions under the authority of Court of Appeals decisions, but the Supreme Court never definitively ruled whether they were constitutional. Section 213 of the Patriot Act authorized delayed notice warrants in any case in which an ``adverse result'' would occur if the warrant were served before the search was executed. Adverse result was defined as including: 1. Endangering the life or physical safety of an individual; 2. flight from prosecution; 3. destruction of or tampering with evidence; 4. intimidation of potential witnesses; or 5. otherwise seriously jeopardizing an investigation or unduly delaying a trial. These circumstances went beyond what court decisions had authorized before the PATRIOT Act. In addition, while some courts had required the service of the warrant within a specified period of time, the PATRIOT Act simply required that the warrant specify that it would be served within a ``reasonable'' period of time after the search. It is interesting to note that this provision of the PATRIOT Act was not limited to terrorism cases. Nor was it made subject to the sunset provision that will cause most of the new surveillance provisions of the act to expire at the end of 2005 unless Congress reenacts them. So Section 213 was pretty clearly a provision that the Department of Justice wanted regardless of the terrorism threat after 9/11. Perhaps that is why this provision has caused such controversy since it was passed. Just over 2 months ago, by a wide bipartisan margin, the House passed an amendment to the Commerce-Justice-State appropriations bill offered by Representative Otter from Idaho, a Republican, to stop funding for delayed notice searches authorized under section 213. The size of the vote took the Department by surprise, and it immediately set out to defend the provision aggressively. Clearly, this is a power that DOJ does not want to lose. I raised concern about the sneak and peek provision when it was included in the Patriot Act and even considered offering an amendment at that time to strip it out. I did not believe there had been adequate study and analysis of the justifications for these searches and the potential safeguards that might be included. I did not argue then, however, and I am not arguing now that there should be no delayed notice searches at all and that the provision should be repealed. I do believe, however, that it should be modified to protect against abuse. My bill will do four things to accomplish this. First, my bill would narrow the circumstances in which a delayed notice warrant can be granted to the following: potential loss of life, flight from prosecution, or destruction or tampering with evidence. The ``catch-all provision'' in section 213, allowing a secret search when serving the warrant would ``seriously jeopardize an investigation or unduly delay a trial'' is too easily susceptible to abuse. Second, I believe that any delayed notice warrant should provide for a specific and limited time period within which notice must be given--7 days. This is consistent with some of the pre-PATRIOT Act court decisions and will help to bring this provision in closer accord with the fourth amendment to the Constitution. Under my bill, prosecutors will be permitted to seek 7-day extensions if circumstances continue to warrant that the subject not be made aware of the search. But the default should be a week, unless a court is convinced that more time should be permitted. Third, Section 213 should be brought into the group of PATRIOT Act provisions that will sunset at the end of 2005. This will allow Congress to reexamine this provision along with the other provisions of the act, which was passed within 6 weeks of the 9/11 attacks, to determine if the balance between civil liberties and law enforcement has been correctly struck. Finally, the bill requires a public report on the number of times that section 213 is used and the number of times that extensions are sought beyond the 7-day notice period. This information will help the public and Congress evaluate the need for this authority and determine whether it should be retained or modified after the sunset. These are reasonable and moderate changes to the law. They do not gut the provision. They do not make it worthless. They do recognize the growing and legitimate concern from across the political spectrum that this provision was passed in haste and presents the potential for abuse. They also send a message that fourth amendment rights have meaning and potential violations of those rights should be minimized if at all possible. I urge my colleagues to support this bill and I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I will introduce in the Senate the Reasonable Notice and Search Act. This bill addresses the provision of the USA PATRIOT Act that has caused perhaps the most concern among Members of Congress. Section 213 of the PATRIOT Act, sometimes referred to as the ``delayed notice search provision'' or the ``sneak and peek provision,'' authorizes the Government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises that have been searched. Prior to the PATRIOT Act, secret searches for physical evidence were performed in some jurisdictions under the authority of Court of Appeals decisions, but the Supreme Court never definitively ruled whether they were constitutional. Section 213 of the Patriot Act authorized delayed notice warrants in any case in which an ``adverse result'' would occur if the warrant were served before the search was executed. Adverse result was defined as including: 1. Endangering the life or physical safety of an individual; 2. flight from prosecution; 3. destruction of or tampering with evidence; 4. intimidation of potential witnesses; or 5. otherwise seriously jeopardizing an investigation or unduly delaying a trial. These circumstances went beyond what court decisions had authorized before the PATRIOT Act. In addition, while some courts had required the service of the warrant within a specified period of time, the PATRIOT Act simply required that the warrant specify that it would be served within a ``reasonable'' period of time after the search. It is interesting to note that this provision of the PATRIOT Act was not limited to terrorism cases. Nor was it made subject to the sunset provision that will cause most of the new surveillance provisions of the act to expire at the end of 2005 unless Congress reenacts them. So Section 213 was pretty clearly a provision that the Department of Justice wanted regardless of the terrorism threat after 9/11. Perhaps that is why this provision has caused such controversy since it was passed. Just over 2 months ago, by a wide bipartisan margin, the House passed an amendment to the Commerce-Justice-State appropriations bill offered by Representative Otter from Idaho, a Republican, to stop funding for delayed notice searches authorized under section 213. The size of the vote took the Department by surprise, and it immediately set out to defend the provision aggressively. Clearly, this is a power that DOJ does not want to lose. I raised concern about the sneak and peek provision when it was included in the Patriot Act and even considered offering an amendment at that time to strip it out. I did not believe there had been adequate study and analysis of the justifications for these searches and the potential safeguards that might be included. I did not argue then, however, and I am not arguing now that there should be no delayed notice searches at all and that the provision should be repealed. I do believe, however, that it should be modified to protect against abuse. My bill will do four things to accomplish this. First, my bill would narrow the circumstances in which a delayed notice warrant can be granted to the following: potential loss of life, flight from prosecution, or destruction or tampering with evidence. The ``catch-all provision'' in section 213, allowing a secret search when serving the warrant would ``seriously jeopardize an investigation or unduly delay a trial'' is too easily susceptible to abuse. Second, I believe that any delayed notice warrant should provide for a specific and limited time period within which notice must be given--7 days. This is consistent with some of the pre-PATRIOT Act court decisions and will help to bring this provision in closer accord with the fourth amendment to the Constitution. Under my bill, prosecutors will be permitted to seek 7-day extensions if circumstances continue to warrant that the subject not be made aware of the search. But the default should be a week, unless a court is convinced that more time should be permitted. Third, Section 213 should be brought into the group of PATRIOT Act provisions that will sunset at the end of 2005. This will allow Congress to reexamine this provision along with the other provisions of the act, which was passed within 6 weeks of the 9/11 attacks, to determine if the balance between civil liberties and law enforcement has been correctly struck. Finally, the bill requires a public report on the number of times that section 213 is used and the number of times that extensions are sought beyond the 7-day notice period. This information will help the public and Congress evaluate the need for this authority and determine whether it should be retained or modified after the sunset. These are reasonable and moderate changes to the law. They do not gut the provision. They do not make it worthless. They do recognize the growing and legitimate concern from across the political spectrum that this provision was passed in haste and presents the potential for abuse. They also send a message that fourth amendment rights have meaning and potential violations of those rights should be minimized if at all possible. I urge my colleagues to support this bill and I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. About 10 minutes.

Mr. FEINGOLD. I thank the Senator for his courtesy. (The remarks of Mr. Feingold are printed in today's Record under ``Morning Business.'')