John Sununu

Mr. SUNUNU

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SUNUNU. I ask consent that the Senator be allowed to make his point.

Mr. SUNUNU. Mr. President, I rise today to speak in support of the motion to proceed and in support of the underlying legislation itself. This bill was introduced to make changes, changes to the PATRIOT Act conference report that was delayed at the end of last year, just as we were ready to adjourn for the holidays. That conference report had some flaws and weaknesses. I began focusing on and working on reauthorization of the PATRIOT Act well over a year and a half ago, recognizing that we could do more to improve the original Act, we could make this bill more balanced by adding better protections for civil liberties even as we reauthorized the law enforcement tools in the PATRIOT Act to give law enforcement power to conduct terrorism investigations. I don't think there is anyone in this Chamber who believes we should not provide law enforcement with tools necessary to deal with the threat of terrorism, both domestically and overseas. But whenever we give law enforcement new tools, new powers, we want to make sure they are balanced, balanced by the ability of individuals who think they have been singled out unfairly to raise objections in court, balanced by the ability of individuals to seek legal advice, balanced by restricting the use of these tools to ensure they are only used in appropriate circumstances. That is what protecting civil liberties is all about. As the process of reauthorizing the PATRIOT Act began well over a year and a half ago, a bipartisan group of Senators, including myself, joined to highlight a number of areas where we felt the legislation could and should be improved and strengthened to provide the kinds of protections I mentioned. We spoke with Justice Department officials, not a month or 2 months before this process began, but, as I've said, over a year and a half ago, raising our concerns in a clear, articulate fashion, trying to make certain that DOJ knew full well that there was a bipartisan group that would push to make changes to improve the PATRIOT Act and that we would be willing to stand up for those changes and stand up on principle. Unfortunately, the people who should have been engaged in this discussion process early on simply were not and much of the work was left to the very end of the process, and continued after the law was originally set to expire at the end of last year. As a result, changes that should have been made early were not, and we found ourselves with reauthorization legislation that could not win enough bipartisan votes to gain passage at the end of December. What I wish to do today is to talk about the changes that were made to the PATRIOT Act earlier in the reauthorization process that better safeguard civil liberties, and the changes that are in this underlying legislation that I think will allow us to move forward with some confidence that we have made additional improvements since the cloture vote in December. In the conference report that was delayed, I certainly agree that there were many significant improvements made to the original PATRIOT Act. For example, improvements were made to add clarity to a roving wiretap order to require more specificity as to the target or location of the surveillance to be conducted. Improvement was made to add clarity to delayed notification search warrants, which are search warrants that are conducted without immediately telling the targets of the search. I think delayed notice search warrants are appropriate tools for law enforcement, but at a certain point law enforcement either needs to inform the target of the search or get agreement from a judge to further delay the notification. In the delayed conference report we added clarity. We added a requirement that a target must be notified of a search within 30 days unless a judge agrees to continue delaying the notification. We were successful when we took a stand at the end of last year in moving the sunset period in the draft conference report from a 7-year sunset on the most controversial provisions of the PATRIOT Act to a 4- year sunset period, so that 215 subpoena power, a very significant subpoena power for law enforcement to access the most sensitive of records, the lone wolf provisions and the roving wiretap provisions I mentioned, would have to be reviewed four years from now. All of these were improvements to the PATRIOT Act. But a number of us still had many concerns, concerns in three particular areas. First, our most significant concern was and is the breadth of the standard for obtaining a 215 subpoena. We felt--and we still feel--it is unnecessarily broad. It could result in the gathering of information that is not only extraneous, but pertains to innocent Americans. We think that standard should be more narrow so that there be shown that an individual who is a target of this subpoena be connected to a suspected terrorist or suspected spy. The current standard of mere relevance to a terrorist investigations is unnecessarily broad. Second, we feel there should be a clear judicial review, a review before a judge, of the gag order associated with the 215 subpoena. If you are the recipient of one of these subpoenas, that subpoena comes with a restriction on your ability to tell anyone about the subpoena. But you ought to be able to challenge that gag order before a judge. Third, we feel the provision in the conference report that required the recipient of a national security letter to disclose the name of their attorney to the FBI was punitive and might have the result of discouraging an individual from seeking legal advice. Over the last 6 weeks, I have worked with a number of my colleagues, Democrats and Republicans, on changes to the PATRIOT Act, negotiating with the Justice Department, making Members of the House aware of what we were pursuing, working with Chairman Arlen Specter, who has been very helpful throughout this whole process. Senator Leahy, Senator Durbin, Senator Feingold have all been part of these discussions and I have worked to share with them the concepts we were working on, the language we were working on in the areas where there were still differences, differences between those who wanted to pass the conference report as it was and those of us who felt we could strike a better balance. In the end, we have worked out an agreement on language that has received bipartisan support and makes changes to the conference report in three areas. First, we add a clear, explicit judicial review process for the 215 subpoena gag order. It is a judicial review process that is very similar to the judicial review process for the National Security Letter gag order set forth in the conference report. I think it is important that we stand for the principle that a restriction on free speech such as a gag order can be objected to in a court of law before a judge. You can at least have your case heard. That does not mean you will win, necessarily, but you can at least have your case heard. Second, we were able to get language striking the requirement that the recipient of a National Security Letter disclose the name of their attorney to the FBI. Again this is a punitive provision, and it could have the unintended effect of discouraging people from seeking legal advice. Third, we added clarification to National Security Letters as they pertain to libraries. Our agreement adds a provision that makes very clear that libraries operating in their traditional role, including the lending of books, including making books available in digital form, including providing basic Internet access, are not subject to National Security Letters. These are three areas that were highlighted as being of concern at the end of last year. I did--and I think the others would agree--we all did everything possible to stay focused on these areas of concern. We made improvements in each of these three areas. I think we ought to be able to move forward now with the reauthorization, knowing full well that in an effort such as this, no party ever gets everything they want. But having shown that there is a bipartisan group of Members of the Senate and I believe Members of the House as well who will look carefully at these measures, who will push hard for improvements, I think the oversight of the PATRIOT Act will be improved. I know that the reporting to Congress as to how this act is used will be improved. Requirements to report on the use of 215 subpoenas and the minimization procedures used to get rid of data and information on innocent Americans collected through 215 subpoenas and National Security Letters are improvements. So I feel confident we have legislation that is a vast improvement over current law in terms of protecting civil liberties. We have oversight that is improved and, frankly, we have a strong coalition within Congress that is committed to doing an effective job in making sure these important law enforcement tools are used effectively but also used fairly. I know not all my colleagues will support this final package. I know in particular Senator Feingold, who has worked extremely hard on this issue, is not able to support this final package. He will speak more eloquently than I can as to the concerns that remain, but among his concerns is the breadth of the 215 standard and the feeling that we ought to be able to agree on and work toward a standard that will prevent fishing expeditions, that will better protect civil liberties but still enable law enforcement to do their job. I share that concern and that goal, but I at the same time recognize we have an obligation to take the many gains we received throughout the reauthorization process and reauthorize this legislation so we can move forward, focus on our outstanding concerns, and focus on the agenda that still sits before Congress. I thank the President for the time and the opportunity to lay out the improvements that are in the package before us. I look forward to the debate and the discussion, but I do hope we can, in a deliberate fashion, complete work on this legislation that now has gained bipartisan support, has gained additional votes from Republicans, including Senator Craig, Senator Hagel, Senator Murkowski, who have raised concerns, Senator Durbin, Senator Feinstein, and others on the Democratic side who have stood with us too since the end of last year in the hopes of improving the balance of the conference report. I think we do the country a service by enacting this legislation now with a commitment to continue to try to improve it wherever we can. I thank the Chair.

Mr. SUNUNU

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Subcommittee on Employment and Workplace Safety, be authorized to hold a hearing during the session of the Senate on Wednesday, February 15 at 10 a.m. in SD-430.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Subcommittee on Public Lands and Forests be authorized to meet during the session of the Senate on Wednesday, February 15 at 2:30 p.m. The purpose of the hearing is to review the progress made on the development of interim and long-term plans for use of fire retardant aircraft in Federal wildfire suppression operations.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on February 15, 2006, at 9:30 a.m., in open session to consider the following nominations: Honorable Preston M. Geren to be Under Secretary of the Army; Honorable Michael L. Dominguez to be Deputy Under Secretary of Defense for Personnel and Readiness; Mr. James I. Finley to be Deputy Under Secretary of Defense for Acquisition and Technology; and Mr. Thomas P. D'Agostino to be Deputy Administrator for Defense Programs, National Nuclear Security Administration.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on February 15, 2006, at 10 a.m., to conduct a hearing on ``Rebuilding Needs in Katrina-Impacted Areas.''

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Wednesday, February 15, 2006, at 10 a.m., on Video Franchising.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Wednesday, February 15, 2006, at 2:30 p.m., on Nanotechnology.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Wednesday, February 15 at 10:30 a.m. The purpose of this hearing is to receive testimony regarding S. 2197 to improve the global competitiveness of the United States in science and energy technology, to strengthen basic research programs at the Department of Energy, and to provide support for mathematics and science education at all levels through the resources available through the Department of Energy, including at the national laboratories.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 15, 2006 at 2:30 p.m. to hold a closed briefing.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to hold a business meeting on February 15, 2006 at 9:30 a.m. to consider the following agenda: Agenda Nominations: Terrence L. Bracy--Nominee to a position on the Board of Trustees at the Morris K. Udall Scholarship and Excellence in National Environmental Foundation and the following 6 to Members of the Board of Directors of the Tennessee Valley Authority: Dennis C. Bottorff, Robert M. Duncan, Susan Richardson Williams, William B. Sansom, Howard A. Thrailkill, and Donald R. DePriest.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to hold a hearing on February 15, 2006 at 9:35 a.m. to receive testimony on EPA's proposed Budget for FY 2007.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, February 15, 2006, at 9:45 a.m. to hold a hearing on the President's Budget for Foreign Affairs and a business meeting.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Wednesday, February 15, 2006, at 11:15 a.m. for a hearing titled, ``Hurricane Katrina: The Homeland Security Department's Preparation and Response.

Mr. SUNUNU. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on ``Judicial Nominations'' on Wednesday, February 15, 2006 at 10 a.m. in the Dirksen Senate Office Building Room 226. Witness Panel I: Members of Congress, TBA. Panel II: Stephen G. Larson to be United States District Judge for the Central District of California; Jack Zouhary to be United States District Judge for the Northern District of Ohio; and John F. Clark to be Director of the United States Marshals Service.

Mr. SUNUNU

Mr. SUNUNU. Thank you, Mr. President. As was indicated by Senator Craig, this is not a last-minute effort to derail a piece of legislation. These are concerns that began with the introduction of the SAFE Act nearly 2 years ago and our goal was and still is to make improvements to the PATRIOT Act, and to ensure that it better protects civil liberties without undermining law enforcement's ability to do their job in terrorist investigations. I met with the Attorney General after he was confirmed. I know Senator Craig and others did the same thing. I spoke to senior White House staff not weeks, or months, but as long as a year ago and underscored the importance of sitting down and working through the legislation. I made very specific recommendations in just a few key areas of the PATRIOT Act and indicated that we could come to an agreement on a strong bipartisan bill. I heard effectively nothing in response to that request. Moreover, even after all of our requests, no substantive material has been provided to argue how our specific changes would weaken or undermine law enforcement's ability to do its job in pursuing terrorists. A standard should be to put in place which will protect civil liberties no matter who holds the power in the executive, the legislative or the judicial branches. So we are here today with a conference report that has many shortcomings, including a 215 standard that is too broad and could potentially be abused. There is no reason why we cannot clarify it to assure a connection to a specific spy or a terrorist. The conference report also has no meaningful judicial review of national security letters. Specifically there is a gag order requirement on national security letters that can only be overturned by a showing of bad faith on the part of the Federal Government. This is a requirement that will never be met by any individual or small business. There is no judicial review explicit of the 215 gag order in the bill. This section requires that all evidence from the recipient of a 215 order is kept, even if that evidence is unclassified. It requires that if you are the target of one of these orders you must identify any lawyer you speak with to the FBI. To the best of my knowledge, this is a provision that exists nowhere else in law and could have a chilling effect on the individual's right to counsel. But more importantly it is unclear how eliminating this provision, and allowing one who receives a 215 warrant or national security letter to have the same right to counsel as anyone who is served with a normal subpoena undermines our ability to fight terrorism. We should not be afraid of a judicial review or setting the appropriate standards of evidence. We need to be mindful of Ben Franklin's words over 200 years ago: Those who would give up essential liberty in the pursuit of a little temporary security deserve neither liberty nor security. We could pass a 6-month extension or take up the Senate bill which is on the calender and still respect important freedoms. We need to be more vigilant and we can do better.

Mr. SUNUNU

Mr. SUNUNU. Mr. President, I will address the question and the concern. I think the threshold is too high. But I would prefer that time be provided to others--there are a number of others on the floor-- who support my position and oppose cloture.

Mr. SUNUNU. May I have 4 minutes to touch on a few points?

Mr. SUNUNU. Let me begin by addressing a concern that was just raised. It was suggested that if cloture is not invoked tomorrow that there might not be a 3-month extension and the expiring provisions of the PATRIOT Act, which are now law, would effectively be killed. Why would there not be a some short-term extension of the PATRIOT Act of 3 months or 6 months? It would be because some Member of Congress--I hope no one in the Chamber at the moment--but some Member of the House or Senate thinks that we will be better off without a PATRIOT Act, rather than with a 3-month extension. I suggest, No. 1, that is absolutely irresponsible, and, No. 2, that anyone who would make that argument is suggesting that the President, Chairman Specter, and the ranking member, Senator Leahy, are insincere in their suggestion that the tools provided to law enforcement under the PATRIOT Act are extremely important tools that law enforcement genuinely needs. Anyone who would be willing to oppose a temporary extension and prevent some elements of the PATRIOT Act to remain in force is either behaving irresponsibly or they are arguing--and it may be a heartfelt belief on that person's part that current law actually is not as important as they had previously suggested. I believe everyone can decide for themselves what they think the likely option, the almost certain option would be if cloture is not invoked. With regard to the substantive concerns, there are many. But let me first address the issue of the national security letters. Under the conference report, there is no meaningful judicial review of a national security letter or its accompanying gag order because the threshold that has to be met by an individual or a business served with a national security letter is a showing of bad faith on the part of the Federal Government. You will never win that argument in court. You will never be able to meet that high a threshold. Therefore, even in the most egregious cases, you will never overturn the national security letter or its accompanying gag order. The suggestion that this concern is moot because similar language was in the Senate-passed version is irrelevant because that Senate-passed version also included a real standard on Section 215 subpoenas, which required the individual to be connected to a terrorist or spy; it included a judicial review of the gag order associated with a 215 order; and it included a 7-day notification period for delayed notice, or sneak and peak search warrants. All of this, which again, we approved in the Senate package, has been scrapped. When we saw the Senate bill, many of us were not happy with that national security letter language. But in that bill we had other substantial gains for civil liberty protections, and those have been left at the doorstep by this conference report. To come back and say to us now that our concerns about national security letters do not count because they were part of some previous compromise that is no longer before us avoids the substantive concerns we have raised. There are other problematic provisions that were put into the bill in conference that were not part of the Senate bill. Under the conference report, you have to tell the FBI if you want to challenge a national security letter or 215. That means you have to tell the FBI you have hired an attorney and you have to tell the FBI the name of the attorney.

Mr. SUNUNU. I ask for 1 additional minute.

Mr. SUNUNU. I am not a lawyer. I am an engineer by training. But I know of no other provision in law where that is required. Even if it is required in a few very limited cases in law, I believe this will provide a chilling effect on our right to counsel. I believe such a requirement is an unnecessary limitation on our civil liberties. I have one final point about the arguments made by the administration and by some here in the Senate. The suggestion was made that changes do not need to be made because there has been no evidence of abuse of the existing law. We do not seek to insert protections for civil liberties in law because we do not trust a particular person. The Framers enacted the fourth amendment to the Constitution, not because they didn't trust George Washington but because they wanted to protect these freedoms in perpetuity. I yield the remainder of my time.

Mr. SUNUNU. Mr. President, I ask to be yielded 1\1/2\ minutes.

Mr. SUNUNU. Mr. President, I want to be courteous to my colleagues who wish also to speak, so I will briefly address a couple of the points raised. First, I never suggested that the ability, allowed under the conference report, to hire a lawyer to challenge an NSL is an improvement. I am for that. I don't know that is some great show of benevolence on the part of the Federal Government that now for the first time you will actually be allowed to contact a lawyer if you are served with a national security letter. So I appreciate that. But this is about much more than that simple fact. Judicial review is important. But to have a meaningful judicial review you have to have at least a threshold, that the recipient of a NSL may actually be able to achieve. I suggest that the showing of oppressive or abusive behavior by the Federal Government, the showing of bad faith, is simply too high a threshold to make that judicial review process meaningful. Finally, I come back to the suggestion that if this bill fails on cloture, we will not have a bill, and portions of the PATRIOT Act and the lone wolf provision will expire. I do not take that to mean that the Senator from Pennsylvania will not support a 3-month extension. I hope and I believe that he would in such an event. I hope and I believe that the House would support such an extension of the expiring provisions because having them remain in place on a short term basis of 3 months or 6 months, is much more important than having these provisions expire. If those who do not agree with my opposition to cloture on the conference report really think they will have no bill, then obviously their arguments that the PATRIOT Act is a very important piece of legislation don't have credibility. I yield the floor.

Mr. SUNUNU. Mr. President, that is not the only basis on which these will be reviewed. The national security letter and the gag order require showing of bad faith on the part of the Government. I believe that standard as written in the conference report will prove to be too great of a threshold for individuals or businesses to have any reasonable chance of meeting. We have had 30,000 national security letters issued. To the best of my knowledge, none of them have been overturned. I think we owe the public a clear, reasonable, and pragmatic standard in order for those to be overturned. I do not believe this conference report includes such a standard.