Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I thank the Senator from Illinois and reserve the remainder of my time.

Mr. FEINGOLD. Madam President, did the Senator yield back his remaining time?

Mr. FEINGOLD. Madam President, on this bill there was not a single moment of markup or vote in the Judiciary Committee. I accepted that because of the crisis our Nation faces. This is the first substantive amendment in the Senate on this entire issue, one of the most important civil liberties bills of our time, and the majority leader has asked Senators to not vote on the merits of the issue. I understand the difficult task he has, but I must object to the idea that not one single amendment on this issue will be voted on the merits on the floor of the Senate. What have we come to when we don't have either committee or Senate deliberation on amendments on an issue of this importance? I yield the floor, and I yield back the remainder of my time.

Mr. FEINGOLD. Madam President, it is my intention to offer two more amendments, not the third amendment. I believe the time for each of these amendments could be less than the full time allotted. We have a fair amount of interest, but I didn't expect as much debate. I think the last two could be expedited, and I am prepared to proceed, if that is what my colleagues desire. Amendment No. 1900 I send an amendment to the desk and ask for its immediate consideration.

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

Mr. FEINGOLD. I have about 12 minutes on this amendment subject to any response to that and approximately the same on the second amendment.

Mr. FEINGOLD. Madam President, this amendment has to do with what is called roving wiretap, or multipoint surveillance authority. This is one of the first things Attorney General Ashcroft asked for in the first days after the September 11 attack and gave the example of a terrorist using throwaway cell phones and the need for continued roaming wiretap authority to allow the FBI to keep up with the ready availability of this new technology. First, let me say I have a lot of sympathy for the idea of updating this area of the law. Obviously, it is needed in light of changes in technology. It is vitally important for Members of the Senate to understand that roving wiretap authority is already available for criminal investigations under title III. It is in title 18, section 2518(11) and (12). The Attorney General doesn't need nor has he asked for any new roving wiretap authority for criminal investigations. He already has it. What the bill does in Section 206 is provide similar authority in investigations under the Foreign Intelligence Surveillance Act, known as FISA. I am not opposed to expanding existing roving wiretap authority to include FISA investigations, but I am very concerned that Section 206 does not include a key safeguard that was part of the roving wiretap authority when it was added to title III in 1986. That protection minimizes the possible misuse of the authority, whether intentional or unintentional, to eavesdrop on the conversations of individuals who are not the subject of the investigation. Let me read from the Senate Judiciary Committee's report on the legislation that granted roving wiretap authority: Proposed subsection 2518(12) of title 18 provides, with respect to both ``wire'' and ``oral'' communications, that where the federal government has been successful in obtaining a relaxed specificity order, it cannot begin the interception until the facilities or place from which the communication is to be intercepted is ascertained by the person implementing the interception order. In other words, the actual interception could not begin until the suspect begins or evidences an intention to begin a conversation. It further reads: It would be improper to use this expanded specificity order to tap a series of telephones, intercept all conversations over such phones and then minimize the conversations collected as a result. This provision puts the burden on the investigation agency to ascertain when the interception is to take place. It seems to me that Congress struck the right balance in that provision. It recognized the needs of law enforcement, but also recognized that rights of innocent people were implicated and designed a safeguard to protect them. When Congress passed FISA in 1978 it granted to the executive branch the power to conduct surveillance in certain types of investigations without meeting the rigorous probable cause standard under the Fourth Amendment that is required for criminal investigations. Investigations of agents of foreign powers were different. There is a lower threshold for obtaining an order from the FISA court. But I don't think that roving wiretap authority under FISA should be less protective of the constitutional rights of innocent people who are not the subject of the investigation than the authority that Congress intended to grant in a standard criminal investigation. My amendment takes the safeguard from Title III--from current law-- and includes it in the FISA roving wiretap authority provision. The amendment simply provides that before conducting surveillance, the person implementing the order must ascertain that the target of the surveillance is actually in the house that has been bugged, or using the phone that has been tapped. Let me give a few examples of how this would work, which should also show why it is necessary. Indeed, it may be constitutionally required. If the government receives information that the target of the FISA investigation is making phone calls from a particular bank of pay phones in a train station, it may set up wiretaps at all the phones in that bank, but may only listen in on a particular phone that the subject is using. Before beginning the actual surveillance it must know that the suspect is using a particular phone. Otherwise, on the basis of a report that a terrorist has been using a particular bank of pay phones, the private conversations of innumerable innocent Americans with absolutely no connection to the investigation would be subject to government scrutiny. That violates their Fourth Amendment rights. Similarly, the Government should not be able to conduct surveillance on all payphones in a neighborhood frequented by a suspected terrorist or on a particular payphone all day long while innocent people use it. Another example. Suppose a target of a FISA investigation has the practice of using a neighbor's or relative's phone. Under my amendment, the Government would not be able to listen in on all calls from that phone, but only those taking place when the target is in that person's home. Likewise, if the government believes that the target uses computers in a library, it can only monitor the one that the terrorist is actually using, not all the computers in that facility even when the terrorist is not there. I don't believe this amendment should affect the Government's authorization to monitor a new cell phone obtained by the target. If the phone is in the possession of the target or is registered to the target, then the person implementing the surveillance has ascertained that the facility is being used by the target. They could do it, and I support that. Now, it has been pointed out to me that in 1999 this safeguard was removed from Title III with respect to wiretaps but left in place with respect to bugs. The change was made in the conference report of an intelligence authorization bill, without consideration by the Senate Judiciary Committee. I remind my colleagues again that my amendment was part of the roving wiretap authority that Congress granted federal law enforcement in criminal investigations in 1986. It contains a standard that as far as we know served law enforcement adequately in conducting effective surveillance on very sophisticated criminal organizations, including the mafia and drug importation and distribution organizations. I submit that if this standard is not sufficient, we would have seen an open effort to change it, but we didn't. Even after the change made in 1999 without discussion or debate, the standard remains in effect for bugs placed in homes or businesses. Without this protection, Section 206 threatens the rights of innocent people. If law enforcement has been significantly impaired in conducting effective surveillance in criminal investigations under the roving wiretap provision in current law, we should be shown specific evidence of its shortcomings. But if it has not been impaired, then there is no reason not to include a similar safeguard in the roving wiretap authority under FISA. I urge my colleagues to take a close look at this amendment. It is reasonable, it appropriately reflects current law, but it also allows for updating to face the reality of new technology and all the technologies that are implicated here. And it protects the constitutional rights of people who are not the subjects of an investigation.

Mr. FEINGOLD. Yes.

Mr. FEINGOLD. No. Let's say somebody goes to their neighbor's house to use their phone. They do that once or twice or whatever it might be. Our amendment makes sure this new provision doesn't open up that house and everybody in it and every phone call they have in the house to unlimited Government surveillance. It requires what has been normally required under the law, that the law enforcement people ascertain that the person is in the house at the time so it is credible that they would be using that phone again.

Mr. FEINGOLD. Their conversations could and undoubtedly would be, without some protection.

Mr. FEINGOLD. Exactly.

Mr. FEINGOLD. Absolutely. There are standards, as I indicated in my statement. There have been rules about how law enforcement has to ascertain, whether it be at a phone bank or in somebody else's home, that there is a reasonable belief that the individual is actually there. Without that kind of rule, what we are doing is not just extending this authority to the reality that people have cell phones and move around and use different phones of their own, but it takes us into an area that, frankly, prior to September 11 we would never have dreamed of allowing.

Mr. FEINGOLD. Yes. Madam President, I ask for the yeas and nays on the amendment.

Mr. FEINGOLD. I yield 2 minutes.

Mr. FEINGOLD. I thank the Senator from Minnesota very much for his help, and I reserve the remainder of my time.

Mr. FEINGOLD. Mr. President, what is the status?

Mr. FEINGOLD. I ask the Chair if the managers' amendment has been adopted.

Mr. FEINGOLD. I thank the Chair.

Mr. FEINGOLD. Mr. President, I will give a brief statement before I start my amendments, and I ask unanimous consent the time be equally divided amongst the time I have on each of my four amendments.

Mr. FEINGOLD. Mr. President, 1 month ago, we all were viciously attacked. I am pleased and grateful that both the domestic and international effort to respond to these attacks is fully underway. As we recall, almost as soon as the attacks of September 11 ended, our public discussion turned to two issues: how the United States will respond to these terrorist acts and how we can protect ourselves against future attacks. Almost immediately, discussion of that second issue raised the question of how our efforts to prevent terrorism will affect the civil liberties enjoyed by all Americans as part of our constitutional birthright. I was encouraged by many of the reactions that our leaders and Members of this body had, but especially encouraged by the words of our colleague, Senator George Allen of Virginia who represents one of the States struck by terrorism. On the day after the attacks he said: We must make sure that as we learn the facts, we do not allow these attacks to succeed in tempting us in any way to diminish what makes us a great nation. And what makes us a great nation is that this is a country that understands that people have God-given rights and liberties. And we cannot--in our efforts to bring justice--diminish those liberties. I agree with Senator Allen. I believe that one of the most important duties of this Congress is in responding to the terrible events of September 11, in order to protect our civil liberties, which, of course, derive from our Constitution. That is why I am pleased that we did not take the Attorney General's advice to enact an anti-terrorism bill immediately without any deliberation or negotiation. I commend Senator Leahy for all his efforts to improve this bill. It is certainly a better and more comprehensive bill than the one the administration originally proposed. I think even the administration recognizes that. But I still believe we needed a more deliberative process on this bill, and more careful consideration of the civil liberties implication of it. I held a hearing in the Constitution Subcommittee at which many serious and substantive concerns about the bill were raised by commentators and experts from both sides of the political spectrum. As the chairman of the subcommittee, I took many of those concerns very seriously. That is why I would not consent on Tuesday night to bringing up this bill and passing it without any amendments being considered. I am pleased that we were able to reach agreement on a process that will allow some of my concerns with this bill to be debated and voted on through the amendment process. That is not to say that no measures to strengthen law enforcement should be enacted. They should be. We need to do it. We need to do some very serious updating of a number of these laws. This bill does many things to assist the Department of Justice in its mission to catch those who helped the terrorists and prevent future attacks. We can and we will give the FBI new and better tools. But we must also make sure that the new tools don't become instruments of abuse. There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government was entitled to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country where people could be held in jail indefinitely based on what they write or think, or based on mere suspicion that they were up to no good, the government would probably discover and arrest more terrorists, or would be terrorists, just as it would find more lawbreakers generally. But that would not be a country in which we would want to live, and it would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that country would not be America. I think it is important to remember that the Constitution was written in 1789 by men who had recently won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote the Constitution and the Bill of Rights to protect individual liberties in times of war as well as in times of peace. There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans during World War II and the injustices perpetrated against German-Americans and Italian-Americans, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King, Jr., during the Vietnam war. We must not allow this piece of our past to become prologue. Preserving our freedom is the reason we are now engaged in this new war on terrorism. We will lose that war without a shot being fired if we sacrifice the liberties of the American people in the belief that by doing so we will stop the terrorists. That is why this exercise of considering the administration's proposed legislation and fine tuning it to minimize the infringement of civil liberties is so necessary and so important. And this is a job that only the Congress can do. We cannot simply rely on the Supreme Court to protect us from laws that sacrifice our freedoms. We took an oath to support and defend the Constitution of the United States. In these difficult times that oath becomes all the more significant. There are quite a number of things in this bill that I am concerned about, but my amendments focus on a small discreet number of items. At this point, I would like to turn to one of the amendments.

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

Mr. FEINGOLD. That is correct.

Mr. FEINGOLD. I thank the Senator from Minnesota for his help, especially for making this point: All this amendment is about is making sure that it is about the problem we face with the terrorism that is threatening our country and our freedoms. That is all we are trying to do--make sure it doesn't go broadly into people's rights, and into their privacy, and into their own lives. At this point, I am simply going to reserve the remainder of my time.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, this Nation is still reeling from the horrific events of September 11. During the past month, our country has come together to mourn those we have lost, to help those who have been injured, and to comfort the many families involved. We continue to honor those who rushed selflessly to the aid of the victims and those who still work tirelessly in the rubble. We support our men and women in uniform who are making a bold strike against terrorism half the world away. The ripple effects of the terrorist attacks of one month ago are being felt across the country. One of those effects is the tightening of security measures around the country, perhaps most visibly at our Nation's airports. I commend the thousands of National Guard personnel who are patrolling our airports, including seven airports in Wisconsin. The impact that these vicious attacks have had on the airline industry is undeniable. There is certainly a legitimate need to provide some kind of assistance to our Nation's airlines in this time of crisis, and for that reason I supported the airline relief package that the Senate adopted last month. But this assistance should not stop at the board room door. We should not forget about airline employees and their families, including many Wisconsinites. In the past month, more than 100,000 layoffs have been announced by the airlines, and thousands more workers in related industries have been or will be laid off in the coming months. These massive layoffs are a double blow to an already shocked country. Midwest Express Airlines, which is based in Oak Creek WI, has announced that it will lay off 450 workers, or 12 percent of its work force. Another Wisconsin-based airline, Air Wisconsin of Appleton, which is affiliated with United Airlines, has announced 300 layoffs, or 10 percent of its workforce. These airline workers are not just statistics. They are our neighbors, our friends, and our constituents. It is past time that we act to ensure that those who work for our Nation's airlines and their families receive adequate relief, including continued access to health care and unemployment and job training assistance. The amendment offered by the Senator from Missouri, Mrs. Carnahan, will provide these workers with this crucial assistance. I disagree with the argument that this amendment is not relevant to the underlying airport security legislation. The financial well-being of all Americans is a vital part of our national security. I urge my colleagues to vote for cloture on the Carnahan amendment and to support its passage.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased that the Senate will pass the Aviation Security Act. This bill will help restore our Nation's confidence in commercial aviation by boosting the security in our skies and our airports. The strengthening of cockpit doors and the deployment of sky marshals, among other security measures in this bill, are meaningful and worthwhile steps in making air travel safer. This bill also includes a safety provision based on a bill I recently introduced. The idea is from a couple of Wisconsinites. When I held one of my listening sessions following the vicious attacks on September 11, Fire Chief James Reseburg and Deputy Police Chief Charles Tubbs of Beloit, WI, suggested an idea that they thought would help make our skies safer. Part of their idea was to create a registration system through which law enforcement officials, firefighters, and emergency medical technicians could register voluntarily to serve in the event of an emergency on a commercial airplane. For example, if an official was going on vacation on an airplane, he would simply register with the airline beforehand to notify them that they would have a public safety official on that flight. Like the sky marshals, only authorized airline personnel would know when one of these volunteers was on the plane. In many cases, these public servants already notify the crew when they board that they are trained for emergencies and are willing to help out in the event they are needed. They are trained to respond calmly during emergencies and can be of great assistance to an airline crew. As many of my colleagues have stated, if the airline industry is to recover fully from the events of September 11, 2001, we must make the flying public feel safe once again in our skies. The Aviation Security Act will help us do just that.