Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, the minority leader has the time right now; is that correct?

Mr. KYL. In the Philadelphia Inquirer, a reporter by the name of James Kuhnhenn has quoted the distinguished minority leader, and this has been out on the airwaves. I don't want people to be quoted inaccurately. This was according to a report of December 17, 2005, and this comment is attributed to the Senator from Nevada: ``We killed the PATRIOT Act.'' I ask my friend, the distinguished minority leader, whether that is an accurate quotation of what the Senator said.

Mr. KYL. If the leader would like to relinquish the floor to me, I can respond to the Chair rather than going through the minority leader. Otherwise, I will go through the leader and respond to the Senator from Illinois that way.

Mr. KYL. Mr. President, let me respond to the minority leader and to the question asked of me. The words that the minority leader used were ``killed the PATRIOT Act.'' I don't suggest that this reflects his view that the PATRIOT Act should not exist. I want to be very clear about that, just as I am sure the question posed to me by the Senator from Illinois doesn't mean to suggest that my objecting to a 3-month extension means that I don't want the PATRIOT Act to exist. I have made it crystal clear in all of my comments before today that that is precisely what I want to see--if not the PATRIOT Act in its existing form, until December 31, in the modified form as developed in conference between the House and Senate. I think we can both agree that we understand that the PATRIOT Act is a good thing and indeed it is a good thing whether in the existing form or in the form that came out of conference committee. Let me address that for a moment. As we know, in the Senate, we passed it out unanimously--unanimously--and it is difficult for me to see why Members of the other side of the Chamber are proud of having filibustered it so it cannot come up--don't use the word ``killed it''--having prevented it from coming to a vote when, by everyone's agreement, about 80 percent of what the Senate passed unanimously ended up in the final version of the conference committee report. By 80 percent, I mean of the contentious issues. Most of the bill was not contentious. There were a few provisions that were. On those, the House of Representatives in the conference committee conceded most of the ground. So, in other words, the Senate mostly got its way in that discussion. It seems to me that what the other side is basically arguing is, unless we get our way 100 percent, then we are not going to agree to this. The distinguished minority leader pointed out that everybody knows how the filibuster rules work. I think it is also clear everyone knows how the two Chambers work together. We pass our version of the bill, the House passes its version of the bill, there are a few items in disagreement, and those are compromised. It is not that one Chamber gets its way and the other Chamber has to concede to everything. What has been clear from the House of Representatives is that 3 months, 6 months, 1 year is not going to change anything. They have come to the conclusion that they have already conceded more than they should have. Frankly, from my position, I would be of that same view.

Mr. KYL. Mr. President, I object.

Mr. KYL. Reserving the right to object, would the minority leader stand for a question?

Mr. KYL. Objection, Mr. President.

Mr. KYL. I will explain why I ask the question. It was reported to me that in the remarks the distinguished Senator made, he said, ``Let's be clear about who is killing the PATRIOT Act.'' I just wanted it to be clear that the action taken to prevent us from getting a vote on the PATRIOT Act was an action, a filibuster, or not invoking cloture, and that action has prevented us from completing action on the PATRIOT Act, which means we were not able to take a final vote on it and therefore to reauthorize it.

Mr. KYL

Mr. KYL. Mr. President, this resumes our discussion of the PATRIOT Act, which we were discussing before this little interlude. Since much of the attention has been focused on section 215 of the PATRIOT Act, I want to discuss that for a little bit. The Senator from Illinois, for example, was talking about that just before we broke and, specifically, talked about the subject of section 215, which includes financial records, library records. Incidentally, ``library'' is never mentioned in the PATRIOT Act. It is just that library records are included in the general definition of business records. As a result, people have focused on that. So we are going to talk about that for just a little bit. As he pointed out, the standard for a court to issue a warrant is relevance. That is the same standard that is used in all the other civil subpoenas. It is a standard that the courts had begun to impose since we did not have a standard within the law itself. Given the fact that is the standard the courts began to impose--and it is a reasonable standard--we amended that into the law. Part of what passed the Senate unanimously was a relevance standard. So there is nothing wrong with having a relevance standard. I would think those who are weary of the application of the PATRIOT Act would agree this was a good addition. It is an additional safeguard to have a relevant standard. What exactly is section 215? That is what I would like to address. What it allows is for the FBI to seek an order from the Foreign Intelligence Surveillance Act Court for the production of tangible things--that is the definition--including books, records, papers, documents, and other items for an investigation to obtain foreign intelligence information. That is the key. You are before the Foreign Intelligence Surveillance Act Court, and you are asking for information that pertains to an investigation of foreign intelligence information. That is further defined in the act as information relating to foreign espionage, foreign sabotage or international terrorism. It is impossible to get from the court--talking about getting an order from a judge--anything that isn't relevant to foreign espionage, foreign sabotage or international terrorism. All of this concern about wanting to find out what kind of books you checked out from the library is simply wrong. Anybody who talks about it in those terms and knows what I have said cannot be serious about objecting to section 215 of the PATRIOT Act. Let's put it in context. There are 335 administrative subpoenas authorized for our Government. For example, if you are suspected of Medicare fraud, the Department of Health and Human Services has to issue an administrative subpoena to get information relating to whether you might be guilty of Medicare fraud, such as your business records or somebody else's business records that would perhaps go to proving that case. Or perhaps bank fraud, you could get the bank records that might pertain to that. In none of these other 335 cases is it necessary to go to a court first. There is only one exception. Under the PATRIOT Act, you are required to go to the FISA Court in order to get a subpoena with respect to terrorism. One would think that given the seriousness of terrorism and sometimes the emergency nature of it, it would be easier to get a subpoena dealing with terrorism than it would Medicare fraud or bank fraud. That is not the case. We care so much about civil liberties, we added this requirement that you have to go to court first in order to get the subpoena. This is not a search warrant. This is a subpoena. It is merely a request for information. Unlike a warrant, a subpoena does not allow the Government to enter someone's home or business or property to take things. It is only a request. If the recipient objects to it, the Government has to go to court and defend the subpoena and seek an order for its enforcement. That, too, is where I disagree with my friend from Illinois. There is an ability to say, no, we will not submit the records, in which case the Government has to prove them in court. Most Government agencies already have the authority to issue subpoenas, and there are 335 of them in the code. It is interesting. If Mohamed Atta were suspected of Medicare fraud, then the Department of Health and Human Services could get a subpoena into business records that might demonstrate whether he is connected with that Medicare fraud. It seems to me to be a little bit incongruous not to allow the Department of Justice to go to the FISA Court and ask for a subpoena in the event that they suspect him of terrorism, especially when we have added the other protections in here that the conference report has added--the relevancy standard and an additional three-part test that makes it clear that it has to relate to foreign espionage or terrorism. Some people say: The section 215 subpoena is a little different because these other subpoenas relate to regulated industries. Even subpoenas that are involved in investigating industries that are used to get information from citizens outside the regulated industry use it in a situation where people are outside of the industry and not just the regulated industry itself. For example, if you are talking about some kind of business fraud, if the SBA is seeking an administrative subpoena, they are not just subpoenaing the beneficiary itself. They can subpoena others doing business with the entity under investigation. In one important way, the PATRIOT Act has more protections in it than any of the others because you are required to go to court first. I dare say that most of the people who are raising questions about this don't advertise the fact that you have to go to court, you have to get approval from a judge first. Even a subpoena to appear before a grand jury is issued without going to the judge. There may be a misconception about that, but all the prosecutor has to do is write out the subpoena and you have to supply these business records in accordance with the law to the grand jury. You never have to go to a court first. The only time you have to go to court first is a subpoena invoked under section 215. One of the complaints is that 215 can be used to obtain books from libraries or other kinds of business records. Of course, to the extent library records are business records, that is true. But it does not, obviously, allow the FBI to simply go into a library and figure out what somebody is reading. It can be used to get library records but only if they are relevant to an investigation into foreign espionage or terrorism. Let me give an example. Some people remember the case of the Unabomber, Ted Kaczynski. This was an example given by the Justice Department because his brother had actually relayed to Federal agents his suspicion that Ted Kaczynski was behind the decades-long string of attacks. Remember the mail bomb attacks? At the time, the Unabomber had published his manifesto in the New York Times which cited several obscure, even ancient texts. In order to confirm the brother's suspicions, Federal agents subpoenaed Ted Kaczynski's library records and discovered that he had, in fact, checked out the obscure texts that had been cited in the manifesto, thus helping lead them to Ted Kaczynski as the Unabomber. Is there anything wrong with that? Would anybody have an objection to that? That didn't even require going to a court to get the subpoena. Section 215 also could have been used directly in investigating the conspirators who acted on September 11. How so? We now know that in August of 2001, a month before September 11, individuals using Internet accounts registered to Nawaf al Hazmi and Khalid al Midhar had used public access computers in the library of a State college in New Jersey. The computers in the library were used to shop for and review airline tickets on the Internet travel reservation site. Al Hazmi and al Midhar were hijackers aboard American Airlines Flight 77, the flight that took off from Dulles Airport and crashed into the Pentagon. The last documented visit to the library occurred on August 30, 2001, a dozen or so days before that fateful day. On that occasion, records indicate that a person using al Hazmi's account used the library's computer to review September 11 reservations he had previously booked. I hope the significance of this sinks in. Library records confirmed airline reservations on September 11. During that same month, August of 2001, Federal agents knew that al Midhar and al Hazmi had entered the United States and initiated a search for those two known associates of al-Qaida. Had the investigators caught the trail of these individuals and had the PATRIOT Act already been law, the investigators likely would have used section 215 to review the library's records of their Internet usage. Imagine if we had then picked them up, how the course of history might have changed. This is the use of section 215 relative to library records. It has nothing to do with you and me, nothing to do with what we read in the library. It has to do with determining whether there is information relevant to a foreign terrorist or international espionage, nothing more. It could theoretically have had an impact on the course of events that occurred on September 11, had we been able to use it in connection with al Hazmi and al Midhar. I also want to mention the fact that over half a dozen reports submitted by the inspector general of the Department of Justice have uncovered no instances of abuse of this section. The latest public report indicates that the authority had been used approximately three dozen times and that it had not been found to have been abused. Moreover, in the conference report which was filibustered, the one we would like to be able to vote on so that the act could be reauthorized, we require reports every 6 months to the Congress. These reports are very specific as to the kinds of information with respect to section 215 that we want to review, including whether, as a result of the audits done by the inspector general, there is any potential abuse or there was any potential abuse of this section. So, Mr. President, we have the original section 215, which already had protections that are unlike any other use of an administrative subpoena; added onto that is the requirement that you have to go to the FISA Court, that it must relate and must be relevant to an investigation into espionage or terrorism. And we have an after-the- fact report so that if anything went wrong, or that the inspector general had reason to suspect. That information comes to the Members of Congress every 6 months. It seems to me that any fair reading and fair consideration of section 215 would lead to the conclusion that it is an authority that we need, that it is an important tool for law enforcement, that it has adequate protections built into it, and that all of the hype that surrounds this is, frankly, just exactly that-- that it is an effort to draw some kind of conclusion, create some kind of confusion here that something is wrong with the law, that it is potentially used to eavesdrop on American citizens or somehow sneak their records in a way that could nefariously be used by the U.S. Government. There is not one example where this has occurred or where anybody is complaining about the use of section 215 that harmed them. With all of the protections we have built in, I ask my colleagues, what else exactly do you want? What could you do? How would you change this? What would be different? Why isn't the bill that is before us adequate to both protect American civil liberties and, importantly, protect all of our freedoms by giving law enforcement and intelligence agencies the ability they need to carry out their mission? Let me conclude with respect to this argument that if we just had a little bit more time, maybe we could reopen this and resolve issues. First of all, the conference committee is closed. As a matter of procedure, we cannot just reopen a conference committee. Secondly, a lot of things could have been raised or were raised in conference committee that would be revisited. I will tell you what some of those things would be in the event you are interested in having these things revisited. I wanted to include a provision relating to terrorist hoaxes. That is not in here. We know when somebody phones in with a hoax, the police or the fire department or the bomb squad or the hazardous material squad need to be sent out. It can be a horrible drain on law enforcement, and there ought to be a way to deal with these hoaxes in a much more serious way. Law enforcement would like to have a better definition of ``material support.'' This is used in statutes to deal with people who are providing support--the accessory before the fact kind of situation. Because of the kind of support that can be provided to terrorists, that section probably could stand some further definition. I would like to be able to do that in another conference committee. The Classified Information Procedures Act is something that was initially considered and should be considered again if a new conference committee is opened. Frankly, the House was asked to eliminate an important death penalty provision, and they did that in conference, as well as some other provisions that I very strongly would like to have in the bill. Let it be clear that if a new conference committee were created, there would be all sorts of issues that would be brought to bear, and negotiation is a two-way street. There are other ways we could improve on by strengthening the PATRIOT Act. I would want to be sure that those things are developed and are brought to bear. Finally is this matter that has been brought up regarding eavesdropping on the citizens of the United States. A couple of my colleagues, just before the vote on the PATRIOT Act on the cloture motion, said they had been going back and forth on whether to support it. They read the article in the New York Times and that was dispositive in their minds that they had to vote against cloture. Bear it in mind, it has nothing to do with the PATRIOT Act. In other words, the disclosure of this kind of intelligence gathering that has been in the news in the last 72 hours or so has nothing whatsoever to do with the PATRIOT Act. I gather there is a view that, well, if the administration does one kind of thing, they might therefore be willing to abuse the law in another situation. That is exactly why all of these protections have been built into the PATRIOT Act. I would think my colleagues would want to pass the PATRIOT Act, make sure that it is now the law, rather than leaving the PATRIOT Act the way it is today. They asked for an extension. Yet if they wanted to improve it and add additional protections, one would think they would want to act quickly to get these protections into the law. Congress will, in fact, obviously, be looking into these new allegations. I urge my colleagues, as well as the American citizens, to think about two things. First of all, the question of whether anybody has complained during the time, under both President Clinton and President Bush, the procedures have been in effect for us to be able to gather certain kinds of information and to do so under the powers of the President. When we are at war, he has ability to accept communications of the enemy. Nobody has to point to a section of the law that gives him some kind of search warrant authority to go to a judge and ask for the ability to do that. All Presidents have always used that authority in a time of war. The President relies upon that authority in this particular case. Members of Congress had been briefed on that for years. Only until this New York Times article came out did Members of Congress find themselves absolutely shocked that this kind of activity might be going on and, furthermore, that it caused them to vote against consideration of the PATRIOT Act, which that has nothing to do with. I will say it again. These stories in the media have nothing to do with the PATRIOT Act. So it seems to me that that is not a good excuse for not being able to vote on the PATRIOT Act. The second thing I want to say with respect to that is--and I certainly do not refer to any of my colleagues in the Senate when I make this comment--but there is in the media a significant degree of hypocrisy. I note some of the stories day after day were focused on the improper disclosure of the identity of a person working for the CIA, as if this is about the worst thing that could ever occur. ``How dare anybody leak classified information'' was the mantra day after day. How indeed. But have you heard anybody raise the question of the appropriateness of the leaking of this very highly classified program that is now out in the media and discussed by American citizens, about the collection of information that relates to terrorists? It is called eavesdropping on American citizens, but that is not what it is. The President made clear in his press conference this morning that we are talking about communicating with terrorists or people who have connections with known terrorists. If you call one of those people, you might expect that somebody might want to know about that. Or if they call you. In that case, I guess you might consider yourself vulnerable to the U.S. Government being interested in what you are doing talking to a terrorist. But we are not eavesdropping on American citizens. The real question I ask is, where is the outrage with respect to the release of this classified information, disclosure of this highly classified program which, as the President noted this morning, can greatly degrade our intelligence capability and harm our ability to fight the war on terrorism? He was asked to give an example, and he did. He gave the example of how it used to be that we knew how Osama bin Laden was communicating. He was communicating pursuant to a certain device. Somebody leaked to media that we had the ability to intercept the communications from that particular device. Guess what he did. He stopped using it. He went underground, and we could no longer listen in to what he was saying. What he was saying beforehand was very helpful. Now we cannot hear anything. The same thing is true here. Somebody, in order to hurt the administration, I gather, decided it would be a really dandy thing to leak to the public a highly sophisticated program used to gather information from terrorists, to help us protect the American people in the war on terrorism. Have you heard any condemnation of that on the Senate floor? Have you heard any condemnation of it in the mainstream media? No, they were very concerned when the identity of a CIA agent who is known anyway, I gather, was released. I guess that is high dudgeon. I have not heard a peep out of anybody in the mainstream media criticizing whoever it was that leaked this highly classified program, that is now out in the public. Mr. President, this leaker has to be brought to justice, and the President this morning said he gathered that the usual processes in the Department of Justice to look after such things were in place and were being pursued. I certainly hope so because every time a leak such as this occurs, it degrades the country's ability to protect the citizens of the United States. Whatever this collection methodology is--and thankfully it hasn't been described in much more detail, but whatever it is, we don't want the other side to stop doing it or that is another avenue of information that is closed off to us. So why would we want to make a big public disclosure of all of this? At a minimum, when those of us in the Congress look into this further, as we surely will, we will need to do this in a classified setting. I wonder how much of that will remain classified. I wonder whether we are able to keep a secret around here. If we are going to fight the war on terror, let's remember, unless we want to fight it on the battlefields of Afghanistan or the streets of Baghdad, the best way to defeat the terrorists is through intelligence- gathering agencies. What that means is having the capability to find out what the other side is doing so we can try to stop it by infiltrating their organization, by compromising it in one way or another. That is critical to fighting the war on terror. Intelligence is our main method of dealing with this war. If we keep compromising our capability because people feel compelled to breach our national security, to violate the law because they want to bring information out that will embarrass the administration or that will affect the PATRIOT Act--the article, remember, according to some was written a year before the New York Times published it on the day we had the vote on the PATRIOT Act. Perhaps coincidence. But unless we are going to start objecting to that kind of behavior, it will continue. Then we will wonder why our intelligence agencies and law enforcement agencies were not better able to protect us when there is another attack. I urge my colleagues, as well as the American people, to consider the losses we will suffer as a result of this kind of behavior and to try to bring to account those who engage in this kind of behavior, not to condone it. We in the Congress will do everything we can to make sure all authorities are used legally. The President can be assured of that. But in the meantime, it seems to me we ought to feel a little bit more secure that we have great capabilities collecting intelligence, and we need the ability to do that in order to protect the American people. I hope we will have another opportunity to take a vote on the PATRIOT Act, that we can extend it, we can reauthorize it so it can again be used to protect the American people from this evil of terrorism that we face.

Mr. KYL

Mr. KYL. Mr. President, I rise today to comment on the Senate's passage of H.R. 3402, the Violence Against Women and Department of Justice Reauthorization Act of 2005. My comments are directed at Title X of the bill, the ``DNA Fingerprint Act of 2005.'' This provision is nearly identical to S. 1606, a bill of the same name that Senator Cornyn and I introduced earlier this year. The DNA Fingerprint Act was added to the Senate version of VAWA reauthorization, S. 1197, in the Senate Judiciary Committee on a Kyl/Cornyn amendment that was accepted by voice vote. I am pleased to see that this provision has been maintained in the final bill. The DNA Fingerprint Act will allow State and Federal law enforcement to catch rapists, murderers, and other violent criminals whom it otherwise would be impossible to identify and arrest. The principal provisions of the bill make it easier to include and keep the DNA profiles of criminal arrestees in the National DNA Index System, where that profile can be compared to crime-scene evidence. By removing current barriers to maintaining data from criminal arrestees, the Act will allow the creation of a comprehensive, robust database that will make it possible to catch serial rapists and murderers before they commit more crimes. The impact that this act will have on preventing rape and other violent crimes is not merely speculative. We know from real life examples that an all-arrestee database can prevent many future offenses. In March of this year, the City of Chicago produced a case study of eight serial killers in that city who would have been caught after their first offense--rather than after their fourth or tenth--if an all-arrestee database had been in place. This study is included in the congressional record at the conclusion of my introduction of S. 1606, at 151 Cong. Rec. S9529-9531 (July 29, 2005). The first example that the Chicago study cites involves serial rapist and murderer Andre Crawford. In March 1993, Crawford was arrested for felony theft. Under the DNA Fingerprint Act, the State of Illinois would have been able to take a DNA sample from Crawford at that time and upload and keep that sample in NDIS, the national DNA database. But at that time--and until this bill may be enacted--Federal law makes it difficult to upload an arrestee's profiles to NDIS, and bars States from keeping that profile in NDIS if the arrestee is not later convicted of a criminal offense. As a result, Crawford's DNA profile was not collected and it was not added to NDIS. And as a result, when Crawford murdered a 37-year-old woman on September 21, 1993, although DNA evidence was recovered from the crime scene, Crawford could not be identified as the perpetrator. And as a result, Crawford went on to commit many more rapes and murders. On December 21, 1994, a 24-year-old woman was found murdered in an abandoned building on the 800 block of West 50th place in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the September 1993 murder, and this December 1994 murder could have been prevented. On April 3, 1995, a 36-year-old woman was found murdered in an abandoned house on the 5000 block of South Carpenter Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the two earlier murders that he had committed, and this April 1995 murder could have been prevented. On July 23, 1997, a 27-year-old woman was found murdered in a closet of an abandoned house on the 900 block of West 51st Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the three earlier murders that he had committed, and this July 1997 murder could have been prevented. On December 27, 1997, a 42-year-old woman was raped in Chicago. As she walked down the street, a man approached her from behind, put a knife to her head, dragged her into an abandoned building on the 5100 block of South Peoria Street, and beat and raped her. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders that he had committed, and this December 1997 rape could have been prevented. In June 1998, a 31-year-old woman was found murdered in an abandoned building on the 5000 block of South May Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders and one rape that he had committed, and this June 1998 murder could have been prevented. On August 13, 1998, a 44-year-old woman was found murdered in an abandoned house on the 900 block of West 52nd Street. Her clothes were found in the alley. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the five earlier murders and one rape that he had committed, and this August 1998 murder could have been prevented. Also on August 13, 1998, a 32-year-old woman was found murdered in the attic of a house on the 5200 block of South Marshfield. Her body was decomposed, but DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the six earlier murders and one rape that he had committed, and this additional murder could have been prevented. On December 8, 1998, a 35-year-old woman was found murdered in a building on the 1200 block of West 52nd Street. She had rope marks around her neck and injuries to her face. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the seven earlier murders and one rape that he had committed, and this December 1998 murder could have been prevented. On February 2, 1999, a 35-year-old woman was found murdered on the 1300 block of West 51st Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the eight earlier murders and one rape that he had committed, and this February 1999 murder could have been prevented. On April 21, 1999, a 44-year-old woman was found murdered in the upstairs of an abandoned house on the 5000 block of South Justine Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the nine earlier murders and one rape that he had committed, and this April 1999 murder could have been prevented. And on June 20, 1999, a 41-year-old woman was found murdered in the attic of an abandoned building on the 1500 block of West 51st Street. DNA evidence was recovered from blood on a nearby wall, indicating a struggle. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the ten earlier murders and one rape that he had committed, and this additional murder could have been prevented. As the City of Chicago case study concludes: In January 2000, Andre Crawford was charged with 11 murders and 1 Aggravated Criminal Sexual Assault. If his DNA sample had been taken on March 6, 1993, the subsequent 10 murders and 1 rape would not have happened. The City of Chicago study goes on to discuss the cases of 7 other serial rapists and murders from that city. Each of these criminals had a prior arrest that could have been a basis for a DNA collection but had no prior conviction. Collectively, together with Andre Crawford, these 8 serial rapists and killers represent 22 murders and 30 rapes that could have been prevented had an all-arrestee database been in place. The DNA Fingerprint Act eliminates current Federal statutory restrictions that prevent states from adding and keeping arrestee profiles in NDIS. In effect, the Act would make it possible to build a comprehensive, robust national all-arrestee DNA database. Here is how the DNA Fingerprint Act works. First, the Act eliminates current Federal statutory restrictions that prevent an arrestee's profile from being included in NDIS at the same time that fingerprints are taken and added to the national database. Under current law, as soon as someone is arrested, fingerprints can be taken as part of the booking procedure and uploaded to the national database. But DNA cannot be uploaded until the arrestee is charged in an indictment or information, which can take weeks. Allowing local authorities to collect and upload DNA at the same time as fingerprints--as part of a unified procedure--establishes a clear and straightforward process, making it easier and thus more likely that states will move to an all- arrestee database. Second, current law places the burden on the State to remove an arrestee DNA sample from NDIS if the arrestee later is acquitted or charges are dismissed. The U.S. Justice Department has criticized this as an unwieldy requirement to impose on State labs--it effectively requires lab administrators to track the progress of individual criminal cases. Under the DNA Fingerprint Act, an arrestee will be required to take the initiative to have his profile removed form NDIS if he does not want it compared to future crime-scene evidence. The arrestee will be required to file a certified copy of a final court order establishing that all indexable charges have been dismissed, have resulted in acquittal, or that no charges were filed within the applicable time period. This is the same system that some States use if an arrestee wants to have an arrest struck from his record. And it is more restrictive of law enforcement than the rule for fingerprints-- there is no expungement of fingerprints from the national database, even if the arrestee is acquitted or charges are dismissed. The bureaucratic burden imposed by the current system discourages States from creating and maintaining comprehensive, all-arrestee DNA databases. It also effectively precludes the creation of a genuine national all-arrestee database; only convicts' DNA profiles can be kept in the national database over the long term. Some critics have complained that this expungement provisions in the DNA Fingerprint Act do not require expungement for State offenses that have no statute of limitations--i.e., for offenses for which the ``applicable time period'' does not expire. Others have complained that some States may not make certified court orders available for all of the scenarios under which expungement is contemplated under this bill. The answer to all of these complaints is that these are questions for the States to resolve. If a state chooses to abolish its statute of limitations for murder, rape, or other crimes, that is the State's decision to make. Certainly a person arrested for a serious crime in a State with no statute of limitation for the offense would be more significantly burdened the fact that he may be subject to further arrest and prosecution at any time than by the fact that his DNA is in the national database and may identify him if he commits a crime. Similarly, it is up to the States to decide when certified court orders should be made available to memorialize particular events. All that the DNA Fingerprint Act requires is that if the State does make such an order available to an arrestee--for example, for purposes of having an arrest struck from his record--then the arrestee could also use that order to have his DNA profile removed from NDIS. Third, the DNA Fingerprint Act would allow expanded use of Federal DNA grants. Current law only allows these grants to be used to build databases of convicted felons. The DNA Fingerprint Act permits these grants to be used to analyze and database any DNA sample whose collection is permitted by State or local law. Fourth, the DNA Fingerprint Act allows the Federal Government to take and keep DNA samples from Federal arrestees and from non-U.S. persons who are detained under Federal authority. (A ``United States person'' is a citizen of the United States or an alien lawfully admitted for permanent residence. See 50 U.S.C. 1801(i).) The act gives the Attorney General the authority to issue regulations requiring the collection of such DNA profiles--including requiring other Federal agencies to collect the profiles. As the National Immigration Law Center noted in its October commentary on this section of the Act, ``[u]nder this provision, the attorney general could authorize the Dept. of Homeland Security and its immigration agencies to collect DNA samples from immigrants who are arrested and `non-United States persons' who are detained under the authority of the United States.'' And as the NILC's commentary also notes, the word ```detained' covers a wide spectrum of circumstances. The dictionary definition of `detained' is to keep from proceeding or to keep in custody or temporary confinement.'' Finally, the act tolls the statute of limitations for Federal sex offenses. Current law generally tolls the statute of limitations for felony cases in which the perpetrator is implicated in the offense through DNA testing. The one exception to this tolling is the sexual- abuse offenses in chapter 109A of title 18. When Congress adopted general tolling, it left out chapter 109A, apparently because those crimes already are subject to the use of ``John Doe'' indictments to charge unidentified perpetrators. The Justice Department has made clear, however, that John Doe indictments are ``not an adequate substitute for the applicability of [tolling].'' The Department has criticized the exception in current law as ``work[ing] against the effective prosecution of rapes and other serious sexual assaults under chapter 109A,'' noting that it makes ``the statute of limitation rules for such offenses more restrictive that those for all other Federal offenses in cases involving DNA identification.'' The DNA Fingerprint Act corrects this anomaly by allowing tolling for chapter 109A offenses. Further evidence of the potential effectiveness of a comprehensive, robust DNA database is available from the recent experience of the United Kingdom. The British have taken the lead in using DNA to solve crimes, creating a database that now includes 2,000,000 profiles. Their database has now reached the critical mass where it is big enough to serve as a highly effective tool for solving crimes. In the U.K., DNA from crime scenes produces a match to the DNA database in 40 percent of all cases. This amounted to 58,176 cold hits in the United Kingdom 2001. (See generally ``The Application of DNA Technology in England and Wales,'' a study commissioned by the National Institute of Justice.) A broad DNA database works. The same tool should be made available in the United States. Some critics of DNA databasing argue that a comprehensive database would violate criminal suspects' privacy rights. This is simply untrue. The sample of DNA that is kept in NDIS is what is called ``junk DNA''-- it is impossible to determine anything medically sensitive from this DNA. For example, this DNA does not allow the tester to determine if the donor is susceptible to particular diseases. The Justice Department addressed this issue in its statement of views on S. 1700, a DNA bill that was introduced in the 108th Congress (See Letter of William Moschella, Assistant Attorney General, to the Honorable Orrin Hatch, April 28, 2004): [T]here [are no] legitimate privacy concerns that require the retention or expansion of these [burdensome expungement provisions]. The DNA identification system is already subject to strict privacy rules, which generally limit the use of DNA samples and DNA profiles in the system to law enforcement identification purposes. See 42 U.S.C. 14132(b)-(c). Moreover, the DNA profiles that are maintained in the national index relate to 13 DNA sites that do not control any traits or characteristics of individuals. Hence, the databased information cannot be used to discern, for example, anything about an individual's genetic illnesses, disorders, or dispositions. Rather, by design, the information the system retains in the databased DNA profiles is the equivalent of a ``genetic fingerprint'' that uniquely identifies an individual, but does not disclose other facts about him. In its September 29 Statement of Views on S. 1197, this year's Senate VAWA bill, the Justice Department commented favorably on the inclusion of the DNA Fingerprint Act in that bill. The Department noted: Title X of the bill contains provisions we strongly support that will strengthen the ability of the Nation's justice systems to identify and prosecute sexually violent offenders and other criminals through the use of the DNA technology. These reforms have generally been proposed or endorsed by the Department of Justice in previous communications to Congress. See Letter from Assistant Attorney General William E. Moschella to the Honorable Orrin G. Hatch concerning H.R. 3214, at 3-7 (April 28, 2004); Letter from Assistant Attorney General William E. Moschella to the Honorable Orrin G. Hatch concerning S. 1700, at 5-6 (April 28, 2004). Section 1002 would remove unjustified restrictions on the DNA profiles that can be included in the National DNA Index System (``NDIS''), including elimination of language that generally excludes from NDIS the DNA profiles of arrestees. Section 1003 is a parallel amendment to allow the use of DNA backlog elimination funding to analyze DNA samples collected under applicable legal authority, not limited (as currently is the case) to DNA samples collected from convicted offenders. Section 1004 would authorize the Attorney General to extend DNA sample collection to Federal arrestees and detainees. A number of States (including California, Virginia, Texas, and Louisiana) already have authorized arrestee DNA sample collection under their laws. Section 1004 would create legal authority to extend this beneficial reform to the Federal jurisdiction. Section 1005 would strike language in 18 U.S.C. section 3297 that currently makes that provision's statute of limitations tolling rule for cases involving DNA identification uniquely inapplicable to sexual abuse offenses under chapter 109A of the Federal criminal code. In one respect, the amendments in section 1002, which are absolutely critical to the future development and effectiveness of the DNA identification system in the United States, fall short of our recommendations. They moderate existing expungement provisions requiring the removal of DNA profiles from NDIS in certain circumstances, but do not completely repeal the expungement provisions of 42 U.S.C. 14132(d), as we have recommended. Paragraph (2) of section 1002 should be amended so that it simply repeals subsection (d) of 42 U.S.C. 14132. We have previously observed: ``States usually do not expunge fingerprint records . . . if the defendant is not convicted, or if the conviction is ultimately overturned, nor are they required to remove fingerprint records in such cases from the national . . . criminal history records systems. There is no reason to have a contrary Federal policy mandating expungement for DNA information. If the person whose DNA it is does not commit other crimes, then the information simply remains in a secure database and there is no adverse effect on his life. But if he commits a murder, rape, or other serious crime, and DNA matching can identify him as the perpetrator, then it is good that the information was retained.'' Letter from Assistant Attorney General William E. Moschella to the Honorable Orrin G. Hatch concerning H.R. 3214, supra, at 5; see 150 Cong. Rec. S10914-15 (Oct. 9, 2004) (remarks of Senator Cornyn). We note with approval that the Committee has made the salutary reforms of title X that expand the collection and indexing of DNA samples and information generally applicable, and has not confined the application of these reforms to cases involving violent felonies or some other limited class of offenses. The experience with DNA identification over the past fifteen years has provided overwhelming evidence that the efficacy of the DNA identification system in solving serious crimes depends upon casting a broad DNA sample collection net to produce well-populated DNA databases. For example, the DNA profile which solves a rape through database matching very frequently was not collected from the perpetrator based upon his prior conviction for a violent crime, but rather based upon his commission of some property offense that was not intrinsically violent. As a result of this experience, a great majority of the States, as well as the Federal jurisdiction, have adopted authorizations in recent years to collect DNA samples from all convicted felons--and in some cases additional misdemeanant categories as well--without limitation to violent offenses. See, e.g., 42 U.S.C. 14135a(d)(l). The principle is equally applicable to the collection of DNA samples from non-convicts, such as arrestees. By rejecting any limitation of the proposed reforms to cases involving violent felonies or other limited classes, the Committee has soundly maximized their value in solving rapes, murders, and other serious crimes. (Letter of William Moschella, Assistant Attorney General, to the Honorable Arlen Specter, September 29, 2005.) I note with pride that in addition to receiving the strong support of the Justice Department, the DNA Fingerprint Act is endorsed by the Rape, Abuse, and Incest National Network, Debbie and Rob Smith, and the California District Attorneys Association. I include in the Record at the conclusion of my remarks letters from these individuals and organizations supporting the DNA Fingerprint Act. I would also like to comment on an issue that I chose not to address in the DNA Fingerprint Act but that I may need to address in future legislation. This matter concerns the efficient use of the limited Federal dollars available for offender DNA analysis. Some State crime laboratories recently have been required to remove criminal offender profiles from the national DNA database system because of Federal regulations that require a 100 percent technical review of offender DNA samples tested by private DNA laboratories, rather than review of a random sampling. Given that private laboratories must meet the same accreditation and quality assurance standards as public laboratories in order to test samples for CODIS, and given that these quality assurance standards include the same reviews of DNA analysis reports which are required of public laboratories, I question why the additional 100 percent review is required. Moreover, offender DNA samples are not themselves considered evidence. After matched to an unsolved case on CODIS, regulations require that the offender sample be reanalyzed to confirm the match and then a new sample is collected from the suspect and tested anew to reconfirm the match. DNA cases with named suspects tested by accredited private laboratories are routinely brought directly to court without the duplicated public laboratory review requirement. If these private laboratories can be trusted to perform quality analysis for the thousands of DNA cases that have resulted in conviction for over 15 years, then it stands to reason that they could also be trusted with database samples which will be reanalyzed twice after a match is made. While I understand the concern that potential incorrect results from an offender's sample could lead to a missed opportunity to solve a crime, I also am concerned about the potential for additional crimes to occur while an offender's profile is queued in a laboratory review backlog. It has been brought to my attention that there are other forensic disciplines, such as drug chemistry, in which laboratories use statistically based formulas to achieve a high degree of certainty without requiring a 100 percent review of all samples. I also am aware that the National Institute of Justice already requires that outsourced DNA samples include a requirement for five percent of a given batch to be blind samples. This duplicated requirement for review of samples tested at private laboratories appears to be an inefficient use of federal funds and, more importantly, delays justice for victims seeking a name for their attacker. Before--and ideally, instead of--my introducing legislation to address what appears to be a non-statutory problem, I would suggest that the Attorney General and the FBI reevaluate the necessity for this regulation. The Justice Department also ought to consider the possibility of permitting accredited private laboratories limited but direct ability to upload data to the national DNA Index System, similar to the permission granted to private laboratories in the United Kingdom's DNA database system. Finally, I would like to thank those who have made it possible to enact the DNA Fingerprint Act as part of this year's VAWA reauthorization bill. This includes my colleague, Senator Cornyn, with whom I introduced S. 1606 and who offered the Kyl amendment on my behalf at the Judiciary Committee's executive meeting; Chip Roy and Reed O'Connor of Senator Cornyn's staff; and Lisa Owings and Brett Tolman of Chairman Specter's staff. It is my understanding that absent some aggressive staffing by Mr. Tolman at various stages of the legislative process, the effort to have the DNA Fingerprint Act enacted into law as part of VAWA this year would not have succeeded. His contribution is duly noted and appreciated. I ask unanimous consent that the following letters be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I compliment the Senator from Pennsylvania on a job exceedingly well done in trying to find a way that we can reauthorize the PATRIOT Act, with very emotional feelings on all sides of the issue and working through very difficult compromises, especially after the conference committee in which it would appear to me--and I think even our colleagues who oppose the bill would agree--the end result is probably about 80 percent Senate product and about 20 percent House product. This is a defining moment. There are no more compromises to be made, no more extensions of time. The bill is what it is now, and it is very unfair and unrealistic to expect that either the House of Representatives would concede to the Senate position 100 percent or that the President would do so after what he has now said. As a result, we are going to have an opportunity to vote yes or no. One of my colleagues said this is not a partisan issue. If 90-plus percent of the Democrats vote against cloture and 90-plus percent of the Republicans vote for cloture, it is hard to argue that is not partisan. It is true that this should not be a partisan issue, but having worked through it to the extent we have, and having had the very strong support in the House of Representatives with over I think it was 44 Democrats in the House of Representatives voting for reauthorization of the PATRIOT Act, it seems to me that the Senate would do well to also try to act here in a more bipartisan way and not to have a partisan vote. We need to reauthorize the PATRIOT Act. It is the tool for our law enforcement and intelligence agencies to help protect us from terrorists. Just as we send our men and women into battle with good training and equipment, we have to do the same thing with law enforcement and our intelligence agencies. If we deny them the key tool, the PATRIOT Act, they are not going to be able to do their job to protect us. And there is no more time to stretch this out with maybes or let's negotiate more, and so on. This act will expire on December 31. My colleagues either vote yes to reauthorize it or no, not to reauthorize it. There is no middle ground. I will say this as directly and seriously as I can. I doubt there is anyone in this Chamber today who would argue with the proposition that we needed to tear down the wall between the law enforcement and intelligence agencies. The PATRIOT Act does that. The wall goes right back up again on January 1. Is that what we want? God help us if there is some kind of terrorist attack when we are not protected by the PATRIOT Act and the act could have enabled our law enforcement or our intelligence people to help protect us. We will have to answer for that if we don't vote to extend the PATRIOT Act. I implore my colleagues to put partisanship aside, to consider the fact that not everybody can get 100 percent of what they want, to recognize that the House of Representatives has made a tremendous concession to us, whether you talk about the period of time, the section 215 concessions, and, of course, the sunset concessions. I found it very difficult myself to sign the conference report because, frankly, we had made it so difficult for law enforcement to do its job with some of the compromises that were made, but they were made in order to achieve a consensus on which we could vote. Now we find that consensus in jeopardy. Mr. President, I urge my colleagues to think very carefully about what they are about to do. If they vote against cloture, they are voting to allow the PATRIOT Act to expire. We will not have that tool available for law enforcement and intelligence agencies to protect us from terrorists. Is that what you want? I daresay the American people will hold us accountable if anything happens and we are not able to reauthorize the PATRIOT Act.

Mr. KYL. Mr. President, I thank the chairman for his remarks. We know of two stories that the 9/11 Commission wrote following the investigation into what went wrong. What they found was that there was not only the wall that separated our intelligence and law enforcement officials from being able to speak to each other, but other problems with the law that we corrected with the PATRIOT Act. Had the PATRIOT Act been in effect prior to 9/11, it is possible that not all of or even part of 9/11 would have happened. There are two specific stories. One related to Zacarias Moussaoui, the other related to two fellows by the name of Hazmi and al Mihdhar. These were the fellows who used library computers to verify their airline reservations on 9/11. We knew that they were connected--well, one agency with the Government knew that they were connected with the al-Qaida. The other agency knew that they had tried to come into the United States and decided that maybe we should try to find them but had no idea how important it was to try to find them. And had we been able to be on their tail at this time and find out that they were verifying airline reservations on September 11, knowing that they were connected to al-Qaida and were up to no good, history might well be different than it is today. How on Earth we could allow the corrections in the law that we put in place as a result of our investigation to lapse is beyond me. The terrorists have not stopped their efforts to attack us, and largely we have been free from attack because of things such as the PATRIOT Act. So the chairman is exactly right. We corrected the errors that were brought to our attention that prevented us from doing what needed to be done before September 11. That is what this PATRIOT Act conference report is all about. The act needs to be reauthorized. Our people need that tool to protect us. Why would we allow it to lapse, especially on a partisan basis? We need to think very carefully about what we are about to do. I hope for the sake of the American people and our security that the Senate will act responsibly and ensure that the PATRIOT Act will continue to protect us and not allow it to lapse.

Mr. KYL

Mr. KYL. I will not ask for any more time, then, except to say at a later time I will tell the story of Zacarias Moussaoui and how the PATRIOT Act helps to resolve the situation we couldn't resolve with Zacarias Moussaoui, either, and had we done that, he may not have been involved in the 9/11 activities.

Mr. KYL. Mr. President, I do want to agree with one thing my colleague from Colorado said just a moment ago. He said the fundamental freedoms of Americans are at stake. I agree with that. But they are not threatened by the U.S. Government. They are threatened by foreign terrorists who struck us on September 11 and who have continued to threaten us since that time. There was much criticism of our Government as a result of our failure to prevent that attack on September 11, particularly when the 9/11 Commission reported that there were some things that could have been done that just might at least theoretically have prevented that attack. We quickly acted in the Congress to put in place the legal mechanisms to enable our law enforcement and intelligence people to begin protecting the American people. What we found was that there were a lot of loopholes in our laws that needed to be filled in order to give our law enforcement and intelligence people the weapons, the tools, the support that they needed to protect us. We did that with the PATRIOT Act. However, because of concerns that possibly some of these authorities could be abused, we said we are going to sunset them so that we have to come back and reconsider what we did, and that is what we are all about here now. As a result of significant debate in this body and in the other body, we each passed different versions of a reauthorization of the PATRIOT Act, and since then accommodated those differences in what is called a conference committee. We are now considering that compromise between the House and Senate versions in a compromised conference committee report. Those of us who helped to write the original PATRIOT Act and were very anxious to get these authorities in place believe that in some respects we have gone too far. We have leaned over too far backward to those who are so afraid that somehow somebody's freedom might be stepped on in this country, that they have not enabled us to fight the terrorists that are the real enemy. They have not given us the tools we need. But in order to get the conference committee resolved and get the bill on the floor here, we agreed to sign the report and have this debate. Now we find there are people on the other side who insist on having it all their way. Every single thing they want has to occur or else they are going to filibuster the bill. What does that mean? It means they are going to talk it to death, refuse to allow us to have a final vote on it, with the result that the PATRIOT Act is gone on December 31. They say: We will agree to extend it for a little while. That is no answer. We have a process. We have gone through the process. It has been very difficult. It has been long. It has been hard. We have gotten a product that is the result of compromise. That is the way we work in the Senate and in the House and in this country, and that compromise has to be voted on, yes or no. If you don't like it, then vote no. Here is what I suggest. We are at war. We have to be responsible and serious about what we do. I will say it right now, if the filibuster results in this act ceasing to exist, if there is no more PATRIOT Act next year and an attack occurs in this country and it could have been prevented by the provisions of the PATRIOT Act, then everyone who votes to support a filibuster will have to answer for that attack. There were some things we could have done in the past. I would like to refer to what they are because, from the 9/11 Commission, we know that some of the things we put in the PATRIOT Act might prevent an attack in the future, some of the very things that are being criticized by those who are suggesting they might filibuster. Let me give just a little bit of the detail. We now know that one of the things that stood in the way of a successful investigation was the previous law, gaps in our terrorism law that prevented the FBI from doing certain things--in particular, to exploit leads that related to al-Qaida. We came tantalizingly close to substantially disrupting or even stopping this terrorist plot. The investigation to which I refer involved a person by the name of Khalid Al Mihdhar. He was one of the eventual suicide hijackers of American Airlines flight 77, which crashed into the Pentagon, killing 58 passengers and crew and 125 people on the ground. An account of the pre-September 11 investigation of Mihdhar is provided in the 9/11 Commission's staff statement No. 10. Here is what that statement says: During the summer of 2001 a CIA agent asked an FBI official * * * to review all of the materials from an Al Qaeda meeting in Kuala Lumpur, Malaysia one more time. * * * The FBI official began her work on July 24, of 2001. That day she found the cable reporting that Khalid Al Mihdhar had a visa to the United States. A week later she found the cable reporting that Mihdhar's visa application--what was later discovered to be his first application--listed New York as his destination. * * * The FBI official grasped the significance of this information. The FBI official and an FBI analyst working the case promptly met with an INS representative at FBI Headquarters. On August 22 INS told them that Mihdhar had entered the United States on January 15, 2000, and again on July 4, 2001. * * * The FBI agents decided that if Mihdhar was in the United States, he should be found. At this point, the investigation of Khalid Al Mihdhar came up against the infamous legal ``wall'' that separated criminal and intelligence investigations at the time. That is a wall, by the way, which will be re-erected if this filibuster succeeds and the PATRIOT Act falls. That wall, everyone agrees, had to come down. The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happened next: Even in late August 2001, when the CIA told the FBI, State, INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and two other ``Bin Laden-related individuals'' were in the United States, FBI Headquarters refused to accede to the New York field office recommendation that a criminal investigation be opened, which might allow greater resources to be dedicated to the search for the future hijackers. * * * FBI attorneys took the position that criminal investigators ``cannot'' be involved and that criminal information discovered in the intelligence case would be ``passed over the wall'' according to proper procedures. An agent in the FBI's New York field office responded by e-mail, saying: ``Whatever has happened to this, someday someone will die and, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems.'' You would think we would have learned the lesson of 9/11. If the filibuster succeeds, those who vote for the filibuster will be voting to allow this wall to be reerected. The very wall that we tore down with the PATRIOT Act so the FBI and CIA could talk to each other, the very wall that might have, had we torn it down before 9/11--that wall might have prevented us from discovering two of the key people involved in 9/11, and had we stopped them from getting on the airplane, we might have stopped at least one of the attacks of 9/11. Whatever has happened to this, someday, someone will die, and wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems. Unfortunately, this grim prediction turned out to be true; almost 3,000 people died. We then acted to make sure it would never happen again. Now there are people threatening to filibuster the PATRIOT Act, which will go out of existence on December 31 if the filibuster succeeds, and people will wonder how it is that this wall was resurrected after the experience we had. Here is what the 9/11 Commission said about the effect of the wall between the criminal and intelligence investigations with respect to the investigation of Khalid al Mihdhar: Many witnesses have suggested that even if Mihdhar had been found, there was nothing the agents could have done except to follow him onto the planes. We believe this is incorrect. Both Hazmi and Mihdhar have been held for immigration violations or as material witnesses in the Cole bombing case. Investigation or interrogation of these individuals, and their travel and financial activities, also may have yielded evidence of connections to other participants in the 9/11 plot. In any case, the opportunity did not arise. As we know, Mr. President, the PATRIOT Act dismantled this legal wall between intelligence and criminal investigations. It was enacted too late to prevent 9/11, but it will prevent future acts of terrorism unless we allow it to expire. I would like to talk about another key investigation prior to September 11. I will probably have to get just about 5 more minutes of time. Before I do, let me make just this one point about those who say we do not have to let it expire, we could just extend it for another 3 months or so. Why do they say that? Because they think they can get some more concessions. The House of Representatives is done making concessions, and I agree with them. I would say the concessions already made could go too far, could hamper our law enforcement capability of catching terrorists or infiltrating their organizations or finding evidence to implicate them in crimes. Nonetheless, that time is passed. There is no more conference committee to go back to. We have reached all of the compromises, and not everybody can get everything they want. I certainly have not gotten everything I want. But I understand that at a certain point, the people of the United States have to pull together and act in a unified way to ensure that we have a law in place that will help us fight this war on terrorism. I think it is extraordinarily selfish to say we have to have our way or no way, let the Act expire. Oh, we will maybe let it go for another 3 months. What kind of uncertainty does that create? Three months, using one set of procedures and not knowing what the law is going to be.

Mr. KYL. I ask the Senator from Pennsylvania how much more time he can yield me?

Mr. KYL

Mr. KYL. That is true.

Mr. KYL. Mr. President, the Senator from Alabama is correct. I would say that we should not make too much of these nuance opinions and disagreements. In one sense, they are important; but in another sense, you have to balance that against the fact that there was a mountain of evidence in different areas that all add up to the same proposition. And add to that--some of that turned out not to be correct--but add to that the element of judgment. This can't be overemphasized. Intelligence analysts apply judgments and common sense to the evidence that they have. Because the evidence is rarely black and white, you very rarely get the bad guy to say, I will tell you everything I know, and it is everything you need to know about this. So you have to exercise judgment. After the first gulf war, we later learned that Saddam Hussein was about 6 months away from having a nuclear weapon program. That is fact No. 1. Fact No. 2: Throughout the ensuing decade, he hid his programs. He tried to deceive the inspectors. He refused to comply with U.N. resolutions to release information. One could, therefore, surmise--or at least it would not be a bad presumption to engage in--that if he had it at one point, or almost had it, we had evidence he was trying to get it. Again, he was hiding the ball at every opportunity. The intelligence analysts have to say, Which way am I going to presume this, that he does or that he doesn't? They concluded that there is every indication that we had better assume that he does. The policymakers have to take that a step further. We say they are not absolutely certain; they are pretty sure, but they are not absolutely certain which way we should flop on this. Should we flop to the direction of inaction? Let's wait until we have absolute proof before we do anything, or go the other way? This is pretty dangerous business. If, in fact, he has, we had better act now before it is too late. We think we will take the action that is based upon the proposition that he will have it. That is a judgment that we engaged in. As my colleague, the Senator from Arizona, so eloquently has pointed out, the choice was when, not if, we would face Saddam Hussein. The question was, would we do it on his terms or on ours? We chose to do it on ours. The result is Saddam Hussein today stands trial for mass murder. The Iraqi people have an opportunity for freedom, and we have an opportunity to transform that region of the world into one that supports peace and opposes evildoers and terrorists as opposed to one which was a hot bed when Saddam Hussein was in charge.

Mr. KYL. Mr. President, the Senator from Alabama is absolutely correct. There is an important factor the American people need to understand. There is not just one intelligence agency, the CIA; there are lots of different elements of our Government gathering information, a lot of it secret information. They meet as a group to try to put this together and to reach a consensus. But when the estimates are briefed to us and to the President, they try to arrive at a consensus. Frequently, that consensus is less certain because there are some dissenting views that characterize the consensus. Doubts are expressed in certain technical ways. It is one thing for the community to say it is the community's judgment; of course, that is stepping down from saying we know it as a fact. A judgment is not fact, it is an opinion. Then there are further gradations down. We are exposed to those same--these are all footnoted. We all know who believed what. But at the end of the day, in order for us to get good advice, they try to put it together in a form that reaches a conclusion. Sometimes because there are differences within the intelligence community, those conclusions are not as certain or as certainly expressed as they are on other occasions because of that uncertainty.

Mr. KYL. Mr. President, I say that is exactly right. In fact, the National Intelligence Estimate itself specifically characterized the dissenting as well as the majority views with respect to what those tubes were for. The majority view was that they were for centrifuge, for weapons material production. The minority view was they might be for artillery shells, or some other kind of projectile. There were two agencies within our government that held that latter view. The majority of the intelligence community held the former view. But, yes, I remember as a member of the committee being briefed on that and hearing testimony on it numerous times.

Mr. KYL. I would be happy to yield.

Mr. KYL. Mr. President, I was very happy to have the Senator from Massachusetts take a long time to make a lot of points, asking an important question. Therefore, I am happy to engage in what amounts to a debate on the issue. I would be delighted to comment on the specifics that he points out. I served on the Intelligence Committee for 8 years during this period of time and have a fair degree of information about it. I need to reflect a little bit carefully about what one can now say because, after a while, you realize, when you are on the committee, it is better not to say a lot because it might be one of the things you should not be talking about. But I think I should speak to each of these items. The last one first. No, I don't agree that being in error is the same as misleading. I don't think that the people in the intelligence agencies were misleading us. They were, in some instances, in error. Frequently, they expressed their views with caveats and degrees of certainty that, frankly, are not reflected in the public debate.

Mr. KYL. Let me make my point here. They have a very careful way of expressing their views. In the public debate, I have noted the political people are not nearly as nuanced and careful in expressing these views as the member of the intelligence community is. Second, with respect to that, ordinarily the way that views were expressed to us, and specifically in this case, they represented the majority opinion or the consensus within the intelligence community. Where there were significant questions or differences of opinion within the intelligence community, those were noted and sometimes with respect to some issues, there were divisions. Without getting into a lot of detail, there has been a lot of talk about another issue that the Senator did not raise, the so-called aluminum tubes. Without getting into a big debate about it, you had the majority of the intelligence community believing that those were for one purpose related to production of nuclear materials. And you had a couple of other agencies that had expertise in the area saying they didn't think so. I am not sure that anyone has ever concluded which were actually correct, or not, but a lot of information has been thrown out that clearly the majority opinion was wrong. I don't know that one can say that. So I think we have to be careful. There are frequently, in intelligence estimates, little caveats: We are not sure how good this particular source is; we are not sure about this particular element. But usually a consensus is reached. That consensus is what was briefed to us and that is what we were relying on. With respect to the four specific points--with respect to the issue of yellow cake coming from Niger, it was a fact that the intelligence the United States had was not nearly as conclusive as the intelligence from Great Britain, and therefore the President was advised--not the President himself directly but his speechwriters were advised--not to suggest that our intelligence confirmed the attempts of Iraq to acquire this nuclear material from Niger but rather to refer to a different intelligence service which, in fact, had concluded that the attempt had been made. That was the British service and that was the reference in the speech. The British service still stands by its position. With respect to the bioweapons, there was very good evidence to suggest, prior to the war, that Saddam Hussein not only had a viable bioterrorism program but that he had even mobilized--in one respect, mobilized that program. I am not certain we can say, from the Senate floor, how we have finally evaluated the intelligence with respect to that. I think it would be probably difficult for any Senator to discuss the issue in great length. I would be willing to acknowledge that, certainly, questions have been raised about whether it turns out that there were mobile units devoted to creation of bioweapons. Third, with respect to the intelligence that Iraq agents had actually instructed terrorists in bomb making and poison making, that information was very clear. It was issued by CIA Director George Tenet. It was public information, so that can be discussed on the floor of the Senate, and I am aware of nothing that draws any question about that particular evidence. I do not recall whether it specifically related to al-Qaida or terrorists or al-Qaida-connected terrorists. I probably should not speak to that issue because I am not certain how much is classified. But it is absolutely certain in public testimony, and in a letter George Tenet specifically sent to the Congress he discussed the issue of Iraq training terrorist bomb makers in the art of chemical weapon-making. Finally, in regard to this alleged meeting that never actually occurred, if it is the meeting in Czechoslovakia that the Senator was referring to, that is a matter of dispute. I don't think it has ever been resolved one way or the other. The point of all of this is it is one thing to say the intelligence was inconclusive and in some cases that there were disputes in the intelligence community and in some cases it was not accurate. It is quite another to allege that the people who used the intelligence were misleading other people. Certainly, I was not deliberately misleading anyone, and I am certain the Senator from Massachusetts was not deliberately misleading anyone when we said roughly the same thing based upon the same intelligence that suggested that Saddam Hussein was a threat and had weapons of mass destruction. The final point on this, and then I do want to turn to the PATRIOT Act, there is a bit of a double standard in that critics of the administration are now saying: You can't just look to the consensus opinion, you need to look at some of those within the intelligence community who were dissenting about certain aspects of intelligence, the so-called nuggets. If you look deeply into this report, you will find there was some element of it that did not quite jibe with the rest of the consensus or there was some entity in our Government that didn't totally agree with the consensus opinion. As I said, you are going to see that through any national intelligence estimate or any other description of intelligence analysis. We encourage that. One of the 9/11 Commission recommendations, and the other commissions that have looked into this, is that there is not enough devil's advocacy going on. There is too much ``group think'' within the intelligence community. So it is a good thing to have that intelligence questioned. I remember there was actually criticism of Vice President Cheney because he went down to the CIA headquarters and had the temerity to ask these agents: Are you sure about this? Are you sure about this intelligence? They said: What's he doing that for? He is a so-called consumer of the intelligence. He has every right to say: Are you absolutely sure of this? People within the administration should be questioning as well. That is why I think it is so unfortunate that there is, literally, a cabal to attack the Defense Department for questioning some of the intelligence community's estimates--not all of which turned out to be right, as we know. But there is an investigation that has been actually formally requested. In order to get it resolved, the Defense Department has agreed to conduct an inspector general's investigation into one of the offices of the Department of Defense, into the question of whether it should have questioned the intelligence of the CIA and taken its analysis and its questions to other people within the Defense Department or the national security apparatus of the administration. Why not? The whole point of these commission recommendations is people ought to be asking questions. The CIA is not a monastery of monks who get manipulated intelligence that nobody else ever looks at. The whole point of gathering intelligence is so our policymakers can use it and make decisions based upon it. When the policymakers have questions about it, they have every right to ask those questions. And when there is some evidence that suggests the intelligence is not exactly accurate, they have a duty to raise that kind of issue. There is a bit of a double standard going on that when one wants to criticize the administration and wants to play devil's advocate, there was a little bit of evidence over here that contradicted the consensus in the community, and we should have paid more attention to that. Maybe so. You can't turn around and criticize those, in this case, in the Department of Defense who saw the same infirmities, and who had questions about the CIA intelligence and now are being criticized because they had the temerity to raise those questions. You can't have it both ways. In reality, intelligence is an imperfect proposition at best, and we ought to be playing devil's advocate and be asking tough questions about it. But I daresay, unless you get very good evidence that someone was deliberately lying or misleading, you shouldn't throw those kinds of words around.

Mr. KYL. I am happy to.

Mr. KYL

Mr. KYL. Mr. President, I want to take some time to discuss the importance of preventing tax increases that are scheduled to occur over the next several years. The budget resolution conference agreement reached in April provides reconciliation protection for $70 billion of tax reductions over 5 years, with the direction that the allocation be used to prevent tax increases during the budget window. This sent a signal to investors that capital gains and dividends tax rates would be extended through 2010. I am disappointed that the legislation approved by the Senate does not meet that expectation. Fortunately, the bill approved by the Ways and Means Committee in the other body does, and I pledge to all investors that I will continue to work for that outcome. Indeed, the Senate majority leader pledged that he would not bring the bill back from conference without an extension of these investment tax rates. Similarly, the administration released its Statement of Administration Policy on the bill, which urged Congress to extend the lower rates for capital gains and dividends, noting, ``These extensions are necessary to provide certainty for investors and businesses and are essential to sustaining long-term economic growth.'' The tax reconciliation bill is intended to prevent tax increases by extending ``widely applicable'' tax provisions. My colleagues might find it interesting that more taxpayers benefit from the lower rates on dividends and capital gains than benefit from any of the provisions included in the tax reconciliation bill approved by the Senate. For example, nationwide, fewer than 8 million filers were helped by the AMT hold-harmless provisions in 2003, while more than 30 million filers reported dividend income and more than 22 million reported capital gains Income. Nationwide, 17 percent of all tax filers reported capital gains in 2003, the most recent year for which statistics are available. Of all filers reporting capital gains income in 2003, 30.1 percent had adjusted gross income under $30,000 compared to just 8.7 percent who had AGI of $200,000 or more. In Arizona, 18 percent of all filers reported capital gains income, and of those reporting capital gains income, 32 percent had AGI under $30,000. The story is similar for tax filers reporting dividend income. Nationwide, 23 percent of all filers reported dividend income in 2003. Of all filers reporting dividend income in 2003, 30.6 percent had AGI under $30,000 compared to 6.9 percent who had AGI of $200,000 or more. In Arizona, 22 percent of all filers reported dividend income and, of those filers reporting dividend income, 32 percent had AGI under $30,000. But beyond the number of taxpayers who have benefited directly, the most important thing to know about these lower rates that were enacted in 2003 is that they are working. At the lower rates, the tax penalty imposed on the additional investment earnings--the reward from taking on additional risk--is smaller, and thus makes the risk more attractive. When investors get to keep more of their reward, they are encouraged to invest more; with more investment, businesses have an easier time attracting the capital they need to expand, create new goods and services, and also create more jobs. It is all of this additional economic activity that creates economic growth. All Americans have benefited as the economy has rebounded with the help of these tax policies. Whether you embraced these lower rates at the time or not, everyone must now acknowledge that since the 2003 tax relief legislation was signed into law, gross domestic product has grown by more than 3 percent for 10 straight quarters, most recently expanding at a 3.8-percent annual rate in the third quarter. The United States remains the fastest growing major industrialized country in the world. Business investment had fallen in nine consecutive quarters before the 2003 bill's passage, but cutting taxes on capital helped reverse that decline. In the last nine consecutive quarters, business investment increased at a 6.9-percent annual rate. The strong economy has had a very positive effect on the Government's finances, as more revenue is flowing into the Treasury even at the lower tax rates. As a share of the Nation's GDP, the 2005 deficit was 2.6-percent--down from the 3.6-percent share in 2004. In fiscal year 2005, taxpayers sent $274 billion more in revenue to Washington than the year before and $100 billion more than the Congressional Budget Office predicted. Clearly the American taxpayers are doing their part. Yet some of my colleagues claim that we cannot afford to keep these lower rates, even though they have spurred economic growth, because we are still running a deficit. If We are to keep these tax rates, they argue, we must raise taxes someplace else. What they are seeking is a flawed form of budget discipline called paygo or pay-as-you-go. I am consistently rated one of the most fiscally responsible Senators by nonpartisan watchdog groups, but I don't support paygo because it has nothing to do with budget discipline when applied to taxes. The fact is, paygo simply does not work. Americans are not undertaxed; our problem is that Congress spends too much, and paygo will do nothing to control the fastest growing part of the Federal budget: mandatory spending. Paygo only applies to new spending or tax cuts; it does not apply to existing mandatory programs that grow unchecked year after year without Congress acting. Mandatory spending will grow from just over half of total Federal spending this year to two-thirds of total Federal spending by 2015, and paygo will do nothing to control it. So paygo is a false solution that is designed to prevent us from extending tax cuts--from making sure tax rates do not increase automatically--but that does nothing to prevent spending from increasing automatically. I talked earlier about the extension of the dividend and capital gains tax rates that I expect to be added to the reconciliation bill in conference. I also want to mention some of the provisions that are already in the bill. It extends for 1 more year the increased exemption amounts for the alternative minimum tax that are scheduled to expire at the end of the year. Clearly, Congress must address the problem of the AMI in a comprehensive way, but until we can agree on a solution we must not allow the increased exemption amounts to expire. If we allow these exemption amounts to fall back to their pre-2001 levels, millions of middle-income American families will get hit by the AMT. The bill also prevents the AMT from eroding certain credits. The tax reconciliation bill also includes an extension of the increased small business expensing amounts. Under current law, small businesses can deduct the cost of qualified investments in the first year they are made, up to $100,000 indexed for inflation. After 2007, this amount will drop back to $25,000. The bill extends the increased amount through 2009. Allowing them to expense a greater portion of their investments enables small businesses, which create most new jobs, to invest and grow. The bill also includes an extension of the saver's credit. The saver's credit is a nonrefundable tax credit that encourages low-income taxpayers to make contributions to an employer-provided retirement savings plan or an IRA. The tax reconciliation bill extends the credit through 2009; it is currently scheduled to expire at the end of 2006. The bill also extends the above-the-line deduction for college- tuition expenses. Under current law, the provision that allows a taxpayer to take an above-the-line deduction for the cost of college tuition expires at the end of 2005. The tax reconciliation bill would extend it through 2009, which will make it easier for families and students to plan for their educational expenses. The bill extends for an additional year an entire group of business tax incentives that generally expire on a yearly basis. Many of these provisions should be made permanent, and some others probably could be allowed to expire. Some of the provisions that I strongly support include the 15-year depreciation-recovery period for restaurant improvements, the 15-year depreciation-recovery period for leasehold improvements, and the extension and improvement of the research and development tax credit. Finally, the Senate-passed tax reconciliation bill includes several business tax incentives designed to encourage investment in the hurricane-ravaged area of the southeastern United States. These include financing incentives and depreciation provisions to encourage business investment, and are very time-sensitive. We must encourage businesses to rebuild in the gulf coast area; these particular incentives have proven successful in other areas and I expect they will be successful in the Gulf region as well. So, Mr. President, this tax reconciliation bill is not perfect, but it does include several very important provisions. I am confident we will make the necessary improvements by adding an extension of the lower rates for dividends and capital gains once we get the bill into conference with the House.

Mr. KYL

Mr. KYL. Mr. President, I want to get to the matter I came to speak on, the PATRIOT Act. The Senator from Massachusetts spoke to us about having respect for one of our colleagues in the other body who is, in fact, a patriot and who certainly should never be called a coward. I also want to ask that same deference to those in the Defense Department and others who were doing their duty for our country, who could have been in the private sector making a lot of money and taking care of their families but chose to serve their country in another way in later life by acting on behalf of all of us in matters of national security. The Secretary of Defense, Don Rumsfeld, Paul Wolfowitz, Doug Fife, who headed the office I spoke of, these are patriots. And for anyone to suggest that someone like Doug Fife or Don Rumsfeld or Paul Wolfowitz were misleading anyone is, frankly, about as low as you can get. And even loose words such as ``unlawful'' have been thrown about. This is a very bad state of affairs that we have come to when that is the kind of discourse we have in talking about people who have served our country honorably. I hope my colleagues will join me in trying to elevate the rhetoric rather than taking it down further. And that applies to everybody--Democrat and Republican Members of Congress, or the administration. I came to talk about the PATRIOT Act. I would like to make some comments because we are in the middle of a big debate in the Senate and House about the reauthorization of the PATRIOT Act. If we don't reauthorize the PATRIOT Act, all of the tools that we have given to our law enforcement and intelligence community to help us win the war on terror are going to--not quite, but most of those tools will cease to exist. They will expire. That is why we have to reauthorize it. Just as it is important for us to give the men and women in the military the tools they need in the missions we send them on, the war on terror, so, too, it is for us to ensure our law enforcement and our intelligence people have the tools they need to carry out the mission that we ask of them. In the war on terror, intelligence and the ability to use it in the law enforcement community are critical to our success. One of the greatest things we accomplished after 9/11 in passing the PATRIOT Act was to tear down the wall that had been created between our intelligence-gathering organizations and law enforcement. They couldn't talk to each other. One could gather information, but they couldn't give it to the other, and vice versa. As a result, neither were able to do their job in getting information about terrorists and putting out that information to proper and good use. There is virtually no disagreement that I know of that this part of the PATRIOT Act has been critical to our success since 9/11. Yet there are those on both sides of the aisle in this body who are threatening to hold up the reauthorization of the PATRIOT Act because they haven't gotten their way on every little thing that they want, and some of them don't even know what the conference committee has been negotiating. I am on that conference committee and I know what we have discussed, and I know what is still a matter of issue out there. I want to talk a little bit about the PATRIOT Act because there is a great deal of ignorance about what this important tool does for our war on terror. And we cannot be ignorant, even though it is a matter of law and a little bit complicated. We don't have the luxury of being ignorant about this. We have to understand it to appreciate it. I will speak to that for a little bit. I believe, like some great controversies of the time, history books will record that the controversy over the PATRIOT Act was actually something we will look back on and say, What was all the fuss about? It is a little bit like when President Reagan talked about tearing down the wall and calling the Soviets the ``Evil Empire.'' There was great handwringing. This was not going to be good for our foreign policy. We look back on it now and say, What was all the fuss about? He was right. It was a good thing. Those who are threatening to hold up the reauthorization of the PATRIOT Act should have pretty much the same words spoken to them about the wall. This time we are talking about the wall between intelligence and law enforcement. I say to them, ``Tear down this wall.'' We did it in the PATRIOT Act. They are about to let the PATRIOT Act expire because they have some view that every little thing they want has not gotten accomplished in the PATRIOT Act. This is important business. For those who are threatening to prevent the reauthorization of the PATRIOT Act, I challenge them to come to the Senate today, tomorrow. I will be here. Let's have the debate. What are the big deals in the PATRIOT Act? The biggest is the wall coming down, as I said. There is no disagreement about that. Yet, it is going to go right back up if we do not act. The second provision in the PATRIOT Act that people have focused on is the so-called section 215 which allows a FISC, Foreign Intelligence Surveillance Court, to issue subpoenas to produce business records. That authority has been in the law for a long time. But we added it to the PATRIOT Act in order to allow the FBI to seek an order from this special court that was created for: . . . the production of tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information. Not to obtain foreign intelligence information. And FISC defines ``foreign intelligence'' as information relating to foreign espionage, foreign sabotage, or international terrorism. Section 215 is basically a form of subpoena authority, such as that allowed for numerous other types of investigation. A subpoena is merely a request for particular information. Unlike a warrant--and this is important--a subpoena does not allow a government agent to enter somebody's property and take things. It is only a request. If the recipient objects, the Government must go to court and defend the subpoena and seek an order for its enforcement. Most Federal agencies have the authority to issue subpoenas, and many agencies have multiple subpoena authorities. The Justice Department has identified over 335 different subpoena authorities in the United States Code. One can hardly contend that although the Federal Government can use subpoenas to investigate Mohammed Atta if it suspects he is committing Medicare fraud that it should not be allowed to use the same powers if it suspects he is planning to fly airplanes into buildings. What sense would that make? Some critics argue that most of the existing authorities are different because section 215 subpoenas do not relate to heavily regulated industries like some of the other subpoenas. But even subpoenas issued to investigate the industries are used to request information from persons outside the industry. For example, the Small Business Administration is authorized to use subpoenas to aid its fraud investigations. When it uses that subpoena, it can and often does request information from others doing business--from anyone doing business--with the recipient of the SBA loan. In one important way, the authority in section 215 of the PATRIOT Act is even narrower than the authority given by most subpoena statutes. This is critical. Unlike these other authorities, a section 215 order must be preapproved by a judge. Many people who debate the PATRIOT Act ignore this or do not know it. They say, you do not even have to get a court order. It must be preapproved by a judge. Even grand jury subpoenas, despite their name, are simply issued by a prosecutor conducting a grand jury investigation with no judicial review prior to their issuance. Chief among the complaints made by critics of this section is that it could be used to obtain records from bookstores or libraries. Some of these critics have even alleged that section 215 would allow the FBI to investigate someone simply because of the book he borrows from the library. Section 215 could, in fact, be used to obtain library records, though neither it nor any other provision of the PATRIOT Act specifically mentioned libraries or in any way is directed at libraries. Section 215 does authorize court orders to produce tangible records and that could theoretically include library records. Where the critics are wrong is in suggesting a section 215 order could be obtained because of the books that someone reads or Web sites he visits. Section 215 allows no such thing. Instead, it allows an order to obtain tangible things as part of an investigation to obtain foreign intelligence information, information relating to foreign espionage or terrorism or relating to a foreign government or group and national security. By requiring a judge to approve such an order, section 215 assures these orders will not be used for an improper purpose. And as an added protection against abuse, the PATRIOT Act also requires that the FBI fully inform the House of Representatives and the Senate every 6 months. These checks and safeguards leave FBI agents little room for the types of witch hunts the PATRIOT Act critics conjure up. Any use of the subpoenas, in other words, must be reported to us. Further, and I ask Members to think about this for a moment, especially in view of some of the criticism that has been leveled at the act, I would like to emphasize there are very good and legitimate reasons why an intelligence or criminal investigation might extend to a bookstore or a library. One example former Deputy Attorney General Comey has cited is the investigation of the Unabomber, Ted Kaczynski. Remember that the Unabomber's brother had relayed to Federal agents his suspicion that Ted Kaczynski was behind this decades-long string of mail bomb attacks. At the time, the Unabomber had recently published this manifesto which cited several obscure and ancient texts. In order to confirm the brother's suspicions, Federal agents subpoenaed Ted Kaczynski's library records and discovered that, in fact, he had checked out these same obscure texts cited in the manifesto. Section 215 also could have been used directly to investigate the perpetrators of the September 11 attacks. How so? We now know that in August of 2001 individuals using Internet accounts registered to Nawaf al Hazmi and Khalid al Midhar used public access to computers in the library of a State college in New Jersey. The computers in the library were used to shop for and review airline tickets on an Internet travel reservation site. Al Hazmi and Al Midhar were hijackers aboard American Airlines flight 77 which took off from Dulles Airport and crashed into the Pentagon. The last documented visit to the library occurred on August 20, 2001. On that occasion, records indicate that a person using Al Hazmi's account used the library's computer to review September 11 reservations he had previously booked. In August of 2001, Federal agents knew that al Midhar and al Hazmi had entered the United States. They initiated a search for these individuals because they knew they were associated with al-Qaida. Had the investigators caught the trail of these individuals--and by the way, one of the criticisms in the 9/11 Commission Report was that our Government did not adequately pursue these two individuals; that there was a lot of evidence they could have pieced together. They didn't follow it. They let them out of their sights, at which point they were gone. They knew they were here, but they could not find them. Had they followed the trail of the individual and had the PATRIOT Act already been law, the investigators would have likely used a section 215 to use the library records to see the Internet trail, and history might well be different. Finally, over half a dozen reports submitted by the Inspector General of the Department of Justice have uncovered no instances of abuse involving section 215. The latest public report indicates this authority has been used approximately three dozen times--not all related to libraries, of course. Section 215 is not used very often. But we know that when Federal agents do use it, it is for an important purpose. I cannot imagine that any one of us would want to stop Federal agents from using section 215 in the way it has been used. There were those who said we should have some additional restrictions on section 215; even though it is an important tool, we need it further restricted. So the conference committee said, all right, let's first make sure we have a new statutory relevance standard so there is no question the information obtained has got to be relevant to the foreign intelligence investigation. Another concession made was that there would be a three-part additional test which would be put in place to presume relevancy if you can satisfy this three-part test. It is going to further complicate things, further delay things. It is not going to be easy for the Justice Department to prove. Moreover, another layer of bureaucracy was imposed with so-called minimization standards. The Department of Justice would be required to put into regulation limits on how long the material could be kept, who it could be given to, and so on and so on. Those who had concerns about section 215 brought those concerns forward and those have been negotiated. I know of no further issue relating to section 215 in the conference that Members of either side of the aisle have brought forward. So those of my colleagues who have said we are going to filibuster the conference report on the PATRIOT Act because, among other things, it has this section about library records. They ought to get informed about the section, and they also ought to appreciate the fact that the people who have negotiated this on both sides of the aisle, on both sides of the Capitol, have concluded they are now done with this section. We have put everything in there we need to to further ensure it can never be abused, but we want to retain it as an important part of our tools in fighting terrorism. The second of the three sections I discuss is section 213, the delayed notice searches. This is the so-called ``sneak and peek'' search. It is an unfortunate name. Section 213 of the act merely codifies judicial common law, allowing investigators to delay giving notice to the target of a search that a search warrant has been executed against him. Section 213 allows delayed notice of a search for evidence of any Federal criminal offense if a Federal court finds reasonable cause to believe that immediate notice may result in endangering the life or physical safety of an individual, flight from prosecution, destruction, or tampering with evidence, intimidation of potential witnesses, or would otherwise seriously jeopardize the investigation. Notice still must be provided within a reasonable period of the warrant's execution, though this period may be extended for good cause. The ACLU, in particular, has been critical of section 213. One might think an organization seeking to find fault with this section that deals with the war on terrorism might focus on something other than this particular PATRIOT provision because all it does is codify authority that has been allowed by the Federal courts for several decades. This is not new. The ACLU alleges that section 213 expands the Government's ability to search private property without notice to the owner. It also states that section 213: . . . mark[s] a sea of change in the way search warrants are executed in the United States. And it finally has charged that as a result of the section 213 authorization of delayed notice, ``you may never know what the government has done.'' None of these allegations is true. First, the target of a delayed notice search will always eventually ``know what the government has done'' because section 213 expressly requires that the Government give the target notice of the execution of the warrant ``within a reasonable period of its execution.'' Section 213 clearly and explicitly authorized only delayed notice, not no notice. Further, section 213 neither ``expands the government's ability'' to delay notice nor can it even remotely be described as a ``sea change'' in the law. Twenty-five years ago the U.S. Supreme Court established that ``covert entries are constitutional in some circumstances, at least if they are made pursuant to a warrant.'' That citation is Dalia v. U.S. Congress first authorized delayed notice searches 35 years ago in the 1968 Omnibus Crime Control Act. These searches repeatedly have been upheld as constitutional. In 1990, the U.S. Court of Appeals for the Second Circuit held: Certain times of searching or surveillance depend for their success on the absence of premature disclosure. The use of a wiretap, or a ``bug,'' or a pen register, or a video camera would likely produce little evidence of wrongdoing if the wrongdoers knew in advance that their conversation or actions would be monitored. When nondisclosure of the authorized search is essential to its success, neither Rule 41 nor the Fourth Amendment prohibits covert entry. You can see why this is so. There are certain circumstances where you cannot let the ``bad guy'' know you are listening in on his conversations. To the extent the ACLU intends to suggest that delayed notice searches are unconstitutional, it bears mention that the U.S. Supreme Court has already addressed that view. I mentioned the 1979 Dalia case in which the Supreme Court described that argument as ``frivolous.'' If anyone would still wish to argue that section 213 is controversial, I would note that on this point, too, the conference committee has resolved the only issue that was in contention. The Senate passed a bill that substantially reenacted section 213 with no restrictions on authority. The bill was, by the way, reported out of the Judiciary Committee on a unanimous rollcall vote, which means even the most vocal critics agreed to it, and it later passed the full Senate by unanimous consent. The only debate in the conference over section 213 is what the presumptive time limit should be for investigators to return to court to renew the delay-in-notice provision. The Senate bill included a presumptive delay of 7 days, the House bill a presumptive delay of 180 days, with no provision for longer delay in particular cases. The conference committee has agreed to 30 days. I suggest that is an eminently reasonable compromise. And for all the huffing and puffing about so-called ``sneak and peek,'' this is what the real debate has come down to. I have one more matter, and I will conclude very quickly, Mr. President. The other section, the third section, is this one on roving wiretaps. It simply allows terrorism investigators to obtain a wiretap for any phone that a suspect uses rather than limiting the wiretap to a particular phone. Criminal investigations already have this authority. The PATRIOT Act simply updates the law to give terror investigators the same authority. As I said, this particular section is no longer in controversy. To my knowledge, all questions have been resolved in the conference committee on this. Mr. President, I conclude by noting that the conferees have made a very good-faith effort to iron out differences, to add additional protections, preventions of abuse. What it boils down to is we have a law that finally gives law enforcement and the intelligence community the tools they need to fight terrorism. It brings down the wall that prevented them from cooperating in the past. It provides adequate safeguards to ensure that no liberties are being diminished. It applies only to the investigation of terrorism and crimes by terrorists against the citizens of the United States. It would be a pity if we did not move forward to reauthorize this important piece of legislation before it expires. I renew my challenge to my colleagues. If anyone wants to discuss this, or debate it, I will be here today. I will be here tomorrow. For that matter, I will be here Monday if they want to do it. It is important we get this done and not leave here until we have given our law enforcement officials the tools they need to protect us.