Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. I have no objection.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I want to share some thoughts about the PATRIOT Act and the situation we find ourselves in now with this legislation that we passed 4 years ago that expired December 31. This legislation that passed the Senate by a vote of 80-something, with one ``no'' vote, all the rest of the Senate voted for it. It was made law, and we agreed to reauthorize it after 4 years. We have been involved in that process. I wish to say this has not been a rushed-up deal. We have not gone into this without watching over it. We have had--I am sure some of the Members may have forgotten--a host of committee hearings dealing with the PATRIOT Act. In fact, the numbers I have is that the Senate Judiciary Committee had 13 oversight hearings over the PATRIOT Act. The House Judiciary Committee had 12 oversight hearings this year alone dealing with the PATRIOT Act and our law enforcement against terrorism. For example, I have a list of the hearings we held. On November 28, 2001, not long after the act passed, there was a hearing entitled, ``Department of Justice Oversight: Preserving Our Freedom While Defending Against Terrorism,'' witness Michael Chertoff, then-Assistant Attorney General, Department of Justice, Chief of the Criminal Division. He is now the Department of Homeland Security Secretary. Also on that panel were William Barr, former Attorney General of the United States; Philip Heymann, James Barr Ames, Professor of Law at Harvard Law School; Griffin Bell, senior partner at King and Spalding, a former Attorney General of the United States under President Jimmy Carter; Scott Silliman, executive director of the Center of Law, Ethics and National Security at Duke University School of Law; Kate Martin, Director of the Center for National Security Studies; Neal Katyal, visiting professor, and Yale Law School professor of law at Georgetown University. Also, in December of 2001, another hearing: ``Department of Justice Oversight, Preserving Our Freedom While Defending Against Terrorism.'' The primary witness was Attorney General John Ashcroft. Oversight Hearings on Counterterrorism, June of the next year, witness list: Honorable Robert S. Mueller, III, Director of the Federal Bureau of Investigation; Honorable Glenn A. Fine, inspector general for the U.S. Department of Justice; Special Agent Colleen Crowley, chief division counsel for the FBI. You remember she is the one who complained they did not listen to the evidence she had. And in fact, she made a lot of complaints. But if you boil it down to the bottom, the wall that had been put up, some of the rules and regulations and bureaucratic situations created by existing law at the time of 9/11, made it difficult for information to be shared. That has been fixed, in large part, by the PATRIOT Act and other acts that were passed. Another one on oversight: Department of Justice with the Attorney General himself; then another one in September of that year, ``USA PATRIOT Act In Practice: Shedding Light on the FISA Process.'' Foreign Intelligence Surveillance Act, ``Court and Process,'' had a hearing on all of that so your people understand it. The Honorable David Kris, associate counsel, Department of Justice; Kenneth Bass, senior counsel with Sterne Kessler; William Banks, professor of law at Syracuse; Morton Halperin, director of the Open Society Institute, a true civil libertarian, he had his day to be heard. ``Tools Against Terror'' was another hearing, ``How the Administration is Implementing the New Laws to Protect our Homeland''-- oversight on how these laws are being carried out; Glenn Fine, the inspector general, testified; Scott Hastings, associate commissioner of the Office of Information Resources Management; Alice Fisher, Deputy Assistant Attorney General; Dennis Lormel, Chief of the Financial Crimes Section. Another one: ``War Against Terror: Working Together to Protect America,'' Attorney General John Ashcroft; Secretary of Homeland Security Tom Ridge; Honorable Robert Mueller, Director of the FBI. We had them there to answer how we are working better with these new laws to protect America. Another one, oversight hearing: ``Law Enforcement and Terrorism,'' Honorable Robert Mueller, Director of the FBI; Honorable Asa Hutchinson, Undersecretary for Border and Transportation Security. Senator Hatch had a hearing in Utah with about 10 witnesses dealing with all of the issues related to homeland security. Another one: ``FBI Oversight, Terrorism and Other Topics''; ``DOJ Oversight: Terrorism and Other Topics''; Department of Homeland Security, ``Oversight, Terrorism and Other Topics.'' The top people in Department of Justice--and that is in the Senate, and that does not count the Intelligence Committee that has had hearings, and it does not count the 12 or 13 or more hearings which the House Judiciary Committee has had. First, I want to say that we spent a great deal of time 34 years ago in drafting the first PATRIOT Act. How did it pass with only one ``no'' vote if it was an extreme act? It passed with such an overwhelming vote because we made a commitment from the beginning that we would not undermine any of the great civil liberties that we as Americans have come to know and respect and cherish. I remember asking witnesses. Somebody one time thought it was humorous. But I asked these witnesses: Is there anything in this PATRIOT Act that any court is going to declare to be unconstitutional? Every one of them said ``no.'' Why did they say that? Because the techniques that we allowed terrorism investigators to utilize have already been approved and were being utilized in other aspects of law enforcement already, but they weren't available in an effective way for these investigators. If there was something that was expanded in any way, it was well within the principles of the law as had already been established by the Supreme Court of the United States. For example the roving wiretap--you could always get a wiretap on a specific phone of a person, and you have to have a big affidavit. It has to be monitored, and the judge has to approve it to be satisfied. You approved it in advance of that wiretap being effective, that you had probable cause to believe that it was a justified act. Those facts are reviewable. If the judge was wrong, all the evidence that was gained pursuant to that would be dismissed, would be fruit of the poisonous tree and not be admitted in a court of law. We simply said: Wait a minute, we are seeing more and more terrorists who travel around, use one cell phone and then another cell phone, move from apartment to apartment. Why not allow the courts to have an intercept of communications based on the phones that person may use if there is sufficient evidence to show that person is connected to terrorism and it is relevant to a terrorism investigation and it meets all the standard burdens of proof that have always been used in intercepting communications? I was a U.S. attorney for 12 years. In that 12 years, I think we did one wiretap. These are not done routinely. In a big international terrorism security case, a wiretap can be incredibly valuable. It is one thing to have a wiretap on a Mafia gang or a drug gang; it is another thing to need to know a terrorist group may be plotting to kill thousands or tens of thousands of American people. If these intercepts are lawful for a drug gang, for a group of white-collar criminals, for a Mafia group, they sure ought to be lawful for surveillance on terrorists. We made that change and set forth all the standards, and we went through the legislation. We worked on the exact wording, word by word by word, and the bill we passed in this Senate unanimously came out of our Senate Judiciary Committee 18 to 0 a few months ago to reauthorize it. It said the order must describe a specific target with particularity so that there could not be any confusion about which person for whom the intercept is permissible. The House bill had language they considered carefully. They came out with this language: ``based on specific facts provided in the applications.'' Then it goes to conference. We go over the House bill and the Senate bill and try to hammer out on agreement. Many of the provisions were complementary; they were approved in both bills. Where the provisions were in conflict, the Senate language was adopted. With regard to the roving wiretap multipoint wiretap provision, section 206 of the original PATRIOT Act, basically the Senate version prevailed. I will talk about that for a few minutes because we have Members of the Senate on the Senate Judiciary Committee who voted for the bill when it passed unanimously a few months ago. We have Members of the Senate objecting today who were part of the majority of the unanimous Senate that approved it who are contending there were big changes made in conference. These changes are why they are now opposing a bill that just a few days ago they were supporting. They should listen to the chairman of the Judiciary Committee, Senator Specter. Senator Specter was part and parcel of all negotiations. Members contended to get their own version of things. Frankly, some Members thought the language was not clear enough, and there were some difficulties for law enforcement we would like to have seen closed because it could have led to jeopardizing national safety. We held out and held out, but at the end, basically we gave in. As Senator Specter said, the bill that came out of conference was 80 percent the Senate bill. The Senate prevailed time and again even though on some occasions I thought the House provisions were better. We came in and moved a bill we thought we would have bipartisan support for. For example, there was a question about sunsets, what would be made permanent in the bill and what would have to come up for reauthorization or would sunset. The Senate bill eliminated all but two of the PATRIOT Act sunsets--the roving wiretap and the business records sunset. They were extended for 4 years. We said we will go 4 more years with these two provisions. We extended the lone wolf provision for the same period in the Senate. We passed it; 4 more years for those three provisions. The House did not sunset the lone wolf provision but did sunset section 206 and 215, but for 10 years. They said they would be extended for 10 years. So we go to conference and we debate this issue. I thought the original agreement was we would split the difference, as is commonly done, and we would do it for 7 years. In fact, I signed the conference report at that point. I believe that is when I signed it. But Senator Leahy and other Members of the conference did not like it and held out and held out. We talked to Senator Specter and asked: Why are we coming back in 4 years again? We just had a 4-year bill. Senator Specter said: Look, it is important to the Members. We want some bipartisan support, Senator Sessions. Would you support us on it in 3 to 4 years? I said: All right, we will take the 4 years, the exact Senate bill language. Senator Kyl felt strongly about this also as we discussed it. So we send that, thinking we made people happier and they would be enthusiastic supporters of a bipartisan piece of legislation important to protect the safety of the people of the United States of America. Now, here is another example of the flap, this spasm we are having that amounts to little or nothing: the delayed notice search warrant. As a person who has been involved in supervising investigations relating to large-scale international drug smuggling groups--not terrorist groups but those kinds of conspiracies--I have been made familiar with the difficulties of law enforcement, the burdens on law enforcement, the need to do things right. Our law enforcement agencies do things right according to the instructions they are given. There comes a time when it is important in an investigation to execute a warrant, but at the time you execute it, it is not an appropriate time to arrest the people involved. That happened a lot. Maybe it is less important in a drug case than in a terrorism case where people may have poisonous gas or biological weapons hidden in their apartment, but in a drug case this is what you come down to. The law allowed and has always allowed, to my knowledge, a warrant with specific stated facts. It could be approved, but that warrant has to be based upon the same factual proof we have always had, but you would want to ask the court to allow a search to be conducted of a house. Instead of immediately telling the person whose house or business or automobile is being searched that you searched it, you delay notifying them. You still have protected them from an unlawful search because you have gotten a lawful court order based on facts proven to a Federal judge. In the case of terrorism and these cases I dealt with, proof had to be submitted. And then you could ask the court to allow you to delay notifying the person who is searched for a period of time. This is important because otherwise you tip off the whole group, and they will scatter like a covey of quail. They will be gone. If you do not have everybody there at the time you do that search, then they have the ability to notify one another and scram, and the whole thing can go down in a hurry. So dealing with that complex issue is an important thing. So with regard to the delayed notice warrants, I just want to say to my colleagues and friends, I cannot tell you how important this is to our investigators, who may be out there this very moment surveilling some sleeper cells of terrorist groups and who need to obtain information that could be critically important to identifying a major organization. Maybe the individual they have information about, and for which they have probable cause sufficient to conduct a search warrant of their house, is the only name they really have, but maybe they have good evidence this individual is talking to a number of other persons, and that they may even be planning to bring a chemical or biological weapon or some other explosive device into the country or into that house, and they want to search that house, and they have proof sufficient to allow that to occur by presenting it to a Federal judge to get approval. But they do not need to tell them right then because you are trying to penetrate the organization and get all of them, not just one or two. Maybe there are 20 or 30, and maybe you only know of 1 or 2 of them, so you conduct these warrants, and you delay notification. So I want to point out that what the big difference fundamentally was is this: The Senate bill said the investigators who go out and conduct that warrant have to report back to the judge--in all of our legislation, they have to report back to the judge--to see what they did and how they did it and make an official report; they just don't tell the person whose house is searched. So the Senate bill said they should have an initial period of delay of 7 days. The House bill said they would have an initial period of delay of up to 180 days. So we went to conference, and the House said: Well, we think 180 is appropriate under these circumstances. These are groups, terrorist groups, whatever. It might be really necessary to have more time. We were at 7. And then you could come back and ask the judge to extend it under either one of the bills. So we hammered around and worked around, and we agreed on 30 days--much closer to the Senate bill's version, our version, than the House bill's version. So how is this some big deal? So we have Senators down here saying: Well, I think it is all right to have a delayed warrant for 7 days. I just don't want to have it for 30 days. So I think we need to get our act together here and try to reach some agreements and get this bill passed. But I will say this: For those of us who believe strongly this act is important, it should not just be seen that we are now going to come back and water down this bill and erode the provisions that are in it and not have delayed warrants, not have section 215 authority, to eliminate national security letters that have been part of the law for 25 years. We cannot take these things out. Mr. President, I urge my colleagues to study this legislation carefully. Talk to the Department of Justice attorneys, call the FBI, if you need to. They will go over it step by step, word by word, line by line. As you go through that and consider the history of law enforcement, what is allowed to be done now, how this all occurs, you are going to feel so much better about it and not just react to this unfair choice that is presented: civil liberties or protection. We gave greater protection while protecting civil liberties.

Mr. SESSIONS. Mr. President, we just go back to trying to comprehend the enormity of what has happened as Senator Reid, the Democratic leader in the Senate, had a big press conference to declare victory. He said: We killed the PATRIOT Act. It is not something I think is worthy of a leader of any great party in the Senate. It is the equivalent of the Democratic leader saying we have no way to win in Iraq. These are the kind of statements that are really contrary to what this Nation needs to do right now. The PATRIOT Act is an act that we passed with one dissenting vote 4 years ago and that we passed out of this Senate unanimously and out of the Judiciary Committee unanimously just a few weeks ago and which has now come back as only a modestly modified conference report. It ought to be unanimously affirmed again. We have ended up with a filibuster led by the Democratic leader. I am disappointed at that. I can't comprehend why it occurred and why this would happen. There were a lot of contests, let me say, in the conference committee; a lot of hard work over every single word in the bill. But our version, the one we supported in a bipartisan way, was overwhelmingly the version that was adopted. We brought it back with everyone thinking we would have a great opportunity to pass it. In fact, some of us thought we went too far and that we had weakened law enforcement in ways that were not necessary. We tried to resist, but in the end, at the request of Senator Specter, in a bipartisan effort to move the bill quickly through the Senate, we dropped our objections and went along with that provision. Lo and behold, we end up with another obstructing tactic to block one of the most important pieces of legislation we have passed in a long time. At many of the hearings I mentioned before, the witnesses testified unequivocally that this act had made America a safer place. I mentioned earlier the sunsets. We have differences of agreement on the sunsets. The Senate version was totally adopted on the roving wiretaps. By far, the Senate version was adopted on the delayed notice search warrants. I have explained how important and critical they are. Just ask an FBI agent or talk to a Federal prosecutor who has worked on one of these cases how critically important it can be to have this delayed notification. The Senate version of the bill was 7 days, the House version 180 days, and we agreed on 30. One would have thought that would be the case. With regard to the business records, the Senate bill had a very troubling part to it. It had a three-part relevancy test. This test required the FBI, before they could obtain these records--and these are not records in the personal dominion of a potential defendant; these are records they don't control but are in the control of a bank or telephone company. They are not the words one says in a telephone message, but the telephone toll records. These are part of the records and have always been subject to a subpoena by law enforcement. Any county attorney in America can subpoena these records. Because we wanted to go an extra mile and deal with the question of immediate notification of the person whose records are being sought, we enhanced the requirements. So instead of issuing a subpoena, such as an IRS agent, without going to a U.S. attorney or without going to any court--an IRS agent can issue a subpoena for your income tax records to see if you paid your taxes. A DEA agent can get your bank records to determine whether a person made money selling dope. For white collar crime, Customs agents, there are about 200 or 300 provisions that allow for these kinds of records to be obtained by administrative subpoena. But we don't have that under section 215. They have to get a prior approval, and the agent has to certify it is related to a national security investigation. Only then are they able to get library records or your bookstore records. I don't know why they think that is just so big. Pardon me if I am amused a bit. A county attorney in Illinois or Idaho can issue a subpoena right now to the library for somebody's records. What is this deal? But the association raised a ruckus, so we gave them all kinds of enhanced protections under this bill. Again, the conference report went further than the Senate bill in many areas in the direction of civil liberties. We did have private briefings, secret briefings from Federal investigative agencies, and we learned why there were defects in the three-part relevancy test. By the way, the average district attorney in America and, I think, the Federal attorneys, when they issue subpoenas for records, it only has to be relevant to an investigation. For a U.S. attorney, it has to be relevant to a Federal investigation. But, oh, here we go much further. You have to have a three-part test to what relevancy is in addition to certifying it is important to national security. So we dealt with that problem. I thought we had reached an agreement in language that did not leave serious gaps in the need for records and ability to obtain records that law enforcement was concerned with. We were concerned about that, and we tried to change it, fix it. I thought we reached an agreement on it. I thought we went too far, but I agreed to sign it because we needed to do this bill. That is why I agreed to sign the conference report. Civil liberties that were not passed by the Senate or the House were added to the conference report at the request of Senate conferees, mostly Democratic conferees. So we added some items in addition. Under the report, the Attorney General must adopt minimization procedures within 180 days of enactment of the legislation; that is, he must create procedures that minimize any likelihood that civil liberties could be adversely affected. And he must submit an annual report to Congress which enumerates the total number of applications made under the act, the number granted, the number modified, the number denied so we can have oversight over this issue. Who is overseeing the county attorney? Who is overseeing the U.S. attorney who may be investigating a Member of Congress or the Senate or a Governor for tax fraud or something such as that? They are issuing subpoenas every day. This is a very responsible, fully debated, intensely discussed piece of legislation. It is important to the safety of our country. It is important that we pass it and extend this act and reauthorize it. As of January 1, the wall will go back up that would deny the right of the CIA to share foreign intelligence with the FBI that may have domestic intelligence and, therefore, be able to put the pieces together in a puzzle that will identify a criminal gang that may be intent on destroying large parts of our country. I believe that every effort has been made to assure that all the provisions of this act are consistent with established constitutional procedures. I believe not one line of it is going to be found to be unconstitutional. I believe it has all the protections and details that are necessary for good legislation. There are some things in it that I think hamper law enforcement more than necessary that have little or no relevancy to real civil liberties issues, but they are in there because people were concerned. People are concerned so we dealt with the concerns, but we do not need to weaken this act any more. It is time for us to pass this legislation, to reauthorize this act and not allow it to expire as of the end of this year. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet in open Executive Session during the session on Monday, December 19, 2005, immediately following the next vote on the Senate Floor, in the President's Room, S-216 of the Capitol, to consider favorably reporting the nomination of Vincent J. Ventimiglia, Jr., to be Assistant Secretary of Health and Human Services for Legislation, U.S. Department of Health and Human Services, Washington, DC.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, will the Senator yield just 1 second on that point?

Mr. SESSIONS. I urge him to examine the legislation and to examine the changes that are made. I know some have said they are significant. With the Senator's legal skills and ability to analyze, I think he will find they are not nearly as significant as some say. As a matter of fact, most are very small. I believe he will feel comfortable in the end once again voting for this legislation. I thank the Chair and yield the floor.

Mr. SESSIONS. Mr. President, I ask unanimous consent that I may have 2 additional minutes.

Mr. SESSIONS. I thank Senator Cornyn for his discussion of this important issue. If the people of America were to hear what he said and consider those issues thoughtfully, their fears would be greatly relieved. I am convinced there is nothing in this legislation that in any way jeopardizes the liberties we have. The Senator from Texas served as attorney general for the State of Texas. He served on the Supreme Court of the State of Texas. He brings good judgment and legal understanding to the Senate. I urge my colleagues to listen to him. Senator Specter, chairman of the Judiciary Committee and certainly a person who has been a champion of civil liberties all his career, has said that the bill we passed in this body by unanimous consent which went to conference in order to work out differences with the House, came back with 80 percent the provisions contained in the Senate bill untouched, and very few changes in favor of the House version. I ask the Senator from Texas, the bill we passed here by unanimous consent, is that not the same bill he and I worked on in the Judiciary Committee and that came out of the committee unanimously by an 18-to-0 vote after full discussion about those issues?

Mr. SESSIONS. Mr. President, will the Senator yield for a question?

Mr. SESSIONS. I thank the Senator. That is such a good question. I worked very closely on a daily basis with FBI agents for 15 years as a Federal prosecutor. Some of those agents remain good friends of mine. They are people of high integrity and discipline. They follow the rules. Sometimes they shake their heads in wonderment at the regulations we place on them as they are out trying to protect America. But they comply day after day with whatever rule it is. In fact, I guess some people may have thought when we created a wall between the CIA and the FBI, that if information were important, agents would not pay much attention to that wall, and would share the information anyway. Surely the CIA would tell the FBI if they have information that a dangerous cell may be operating in the U.S.; surely they would tell them. But we prohibited it. There was a wall and this legislation tore it down. Before this wall was torn down, they did not share any information, regardless of how important it may have been. I was on a show with a distinguished Member of this Senate who made the comment that the people of his State didn't want the FBI patrolling near their homes and searching their houses and getting delayed warrants and staying in their houses and all these other things. I talked to the Attorney General Gonzales today. He said two-tenths of 1 percent--2 out of 1,000 warrants issued in this country, are delayed warrants. There probably hasn't been one issued in his State since the act was passed 4 years ago. The last thing the FBI would want to do is violate the law, risk their careers, or waste their resources prowling into the houses of Americans. To get a delayed notice warrant or any warrant of this kind, they have to go to the court in advance. Then they have to have additional proof if they want to delay the notice to the person whose residence has been searched.

Mr. SESSIONS. I thank the Senator from Texas. He is exactly correct. As a former attorney general of Texas, he knows that every county attorney in America can go to a county judge and issue a subpoena for bank records, for medical records, for telephone toll records, for motel records, for library records, and for bookstore records. That is done every day and the standard is simply whether those records are relevant to an investigation that the Attorney General or district attorney in any county in America is conducting. That is the way the system works. People act as if issuance of a subpoena for somebody's records is a violation of a constitutional rights. That is beyond my understanding. So I certainly agree. In fact, with regard to a group of records, the power of the FBI to investigate terrorists, in some ways, is far less than that of a county attorney. A 215 order includes health records, library records, bookstore records--I hate to laugh, but--for which you have to go to a court and get approval before they are issued. The local district attorney issue this type of order if he is investigating somebody for failure to pay county taxes. I want to ask the Senator about this. One distinguished Senator yesterday on the floor of the Senate declared that an FBI agent could write up a warrant and go out to search your house. With regard to the two categories of records I have mentioned, I add for the Record that these are records not in the possession of a potential defendant or terrorist; these are records in the possession of a bank or a telephone company; they are not personal records. But with regards to personal records where the district attorneys in every county and any U.S. Attorney has to get a search warrant and has to have it approved by a judge, and in the case of the FBI, a Federal judge, they have to submit facts under oath to justify the search, and those searches go to a person's home, their automobile, or areas in which they have dominion and control. My question to the Senator is whether he is aware of anything in this legislation that in any way would undermine the standard and burden on investigators before they get a search warrant of somebody's private property?

Mr. SESSIONS. I thank Senator Cornyn from Texas for his steadfast work on this issue. He is an extremely hard-working Senator. He gets these facts right. He is an extremely skilled lawyer and has a great legal mind. I hope the people will listen to his remarks. We have gone through this bill. This bill was carefully drafted the first time we voted on it. It came out of the Senate 4 years ago with only one ``no'' vote. We have had 4 years of experience with it. It is going to expire the end of this calendar year. We passed our version of reauthorization by unanimous consent in this body. Our Senate Judiciary Committee, which has some of the most civil libertarian lawyers in the Senate--in the country, for that matter--passed it out unanimously. I am shocked, surprised, and utterly disappointed that we went to conference--where we maintained position after position on our bill and the House conceded time and time again on their bill, to the extent that about 80 percent of the differing provisions were decided in favor of the Senate--and now have this unbelievable filibuster that blocked a bill which had so much bipartisan support, from coming up and being considered and given a vote. I thank the Chair. I see the distinguished ranking Member of the Senate Armed Services Committee on the floor, Senator Levin. I am delighted to yield to him at this time.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I also say this. I am not aware of a single proponent of the PATRIOT Act who has accused any Member on the other side, or any Member who opposes the PATRIOT Act, of being unpatriotic. Where did that come from? I would like to search the Record. I would like to see that. I do not think it has occurred. I have not heard anybody over here say that. We say: You are wrong. We say you are making a mistake, that you ought to reconsider, you ought to study the act and see that it does not threaten our liberties, that it is consistent with our constitutional protections this great Nation provides. If you do not pass it, I will repeat, this legislation will lapse as of December 31, and it will place our Nation at greater risk. There is no doubt about that. I would repeat, again, it is stunningly surprising to me that we end up, after the bill passed here unanimously in the Senate, unanimously in the Judiciary Committee, and it went to conference with the House of Representatives. At conference, most of the disagreements were resolved in favor of our bill. Who has ever heard of a bill of this size that did not have some changes in conference? They were all minor. Most of the changes resulted in movement toward the Senate bill. Some of the provisions were left to be sunsetted in 4 years by the Senate bill. The House said they should be sunsetted in 10 years, so they would stay in effect for 10 years before they would have a full up-or-down review for reauthorization. We said 4 years. So we went to conference, and we thought agreement had been reached on 7 years. After we signed the conference report--Senator Kyl and others--we thought we had an agreement at 7 years. This is what we normally do in these deals, sort of split the difference when you can. And Senator Leahy and the Democratic members had a fit. No, no, no, it had to be 4 years. It had to be 4 years. And we argued that was not appropriate. Senator Kyl and I, particularly, were involved in those discussions, being members of the conference committee. We thought 7 years was a good compromise. That was the last issue to be decided, and we totally agreed to go to 4. That was the Senate version exactly. They wanted 7 as a compromise. The House wanted 10 in their bill. We ended up totally winning on the Senate position. There was a dispute about delayed notification warrants. The Senate bill that passed unanimously in the Judiciary Committee and on the Senate floor said the warrant that is executed, after prior approval by a U.S. judge who has made a specific additional finding on facts presented to that judge, is justified to delay notification to the person's residence who is being served. In those circumstances, delayed notification is essential because these matters are going to involve tremendous security and are of tremendous importance to an investigation of this kind. In the Senate, we decided that investigators should report back to the judge within 7 days. After 7 days, you could then ask for an additional period of time before you notified the person whose residence had been searched. The House bill set the delayed notification period for 180 days. They said: In a terrorist investigation, you could delay notification to the person whose house was searched for 180 days. So we had a big brouhaha over that. We agreed to 30 days, which is far closer to the Senate version than to the House. Frankly, it didn't make a whole lot of difference because you have to have prior judicial approval to delay notice. And if you want to continue to delay notice, you have to prove that there is an existing continuing threat and danger. It is not a big deal. This bill is about to expire, and those are the kinds of things that they say are such tremendous changes that now we should not even get an up-or-down vote. The fact that we are going to allow this bill to expire and not allow it to become law, will result in the wall going back up between the CIA and the FBI. That makes no sense. Frankly, there are some things in here that worry me. One of the things you have to do to delay notice or to not notify someone under a 215 order is to have an agent certify that not doing would result in a threat to America. It is hard to certify that. Some people think they will just say it anyway. They can't just say it anyway. These are professionals. They know what the standards are. They know that we have to have some proof to justify delayed notice or non-notification. The notification question has to be so significant that they can articulate and have proof that it represents a threat to somebody. I think that is too high a standard in these kinds of rare cases involving national security and the investigation of terrorism. There is a show on one of the cable stations right now called ``Sleeper Cell.'' They have an undercover operative in one of these terrorist cells, and he meets with them. That is something you would love to see. One time I saw it. They had some hypothetical scene in which they said this was the only sleeper cell that they had ever penetrated. I don't know how many sleeper cells are penetrated today, but that is a hard thing to do. It is hard to get somebody in one of these closed, tightknit groups to know what they are doing. But if they do, they can go into the person's house. They can go wherever they are invited to go with the bad guys and record them if they have a recorder. That is perfectly legitimate under the law. But you don't often have that. And so how do you protect America? You have to have records and documents. You have to be able to obtain evidence. Someone says: This individual came into our neighborhood, our community, Mr. FBI Agent. I just heard him talking. It sounded like he was talking about maybe being a terrorist. He sounded like he was involved in terrorist talk. What does that agent need to do? He needs to act quickly. What would be one of the first things he would want to do? He is in contact with other terrorist groups. Is he communicating with terrorists around the world? How would you find that out? You don't need to tap their phones. All you would really need to do is obtain a subpoena for telephone toll records. A local county district attorney can subpoena telephone toll records to investigate an individual on a marijuana charge. Why in the world couldn't an FBI agent be able to get a subpoena for these records if he certifies under oath that it is related to a national security matter? Then if you see a bunch of telephone toll records between that individual and a known terrorist organization somewhere, you know this is not just a tip, this is the real thing. That is what goes on in our investigative agencies today. They are not out there trying to snoop on your or my phone calls. They would be bored stiff listening to my phone calls. This legislation is sound. It has been carefully debated. It came out of the Senate 4 years ago with only one ``no'' vote. It has even more civil liberties protections in it now than it did then. We ought to be passing it. We don't need to allow this legislation to lapse. I am chagrined that the leadership was virtually ambushed. From out of nowhere comes this full-fledged filibuster led by the Democratic side. Yes, there were four Republicans who voted against cloture. But only 2 of the 45 Democrats voted to move the bill forward. It was basically blocked by the Democratic Party. They had the votes to block it. It is disappointing. We need not to allow this to happen. I hope my colleagues will review the bill, that they will think about those agents out there this very day trying to protect us from harm, and that they will consider carefully their votes. Let's move forward. There is some thought that we can just moderate this bill some more, that we will just keep on weakening the bill, and that will be the price to pay for passing it. I don't think this bill needs to be weakened. I don't think it needs to be undermined any more than it is right now. It is a sound piece of legislation, and I will oppose that. I yield the floor.

Mr. SESSIONS. Mr. President, I will ask him to tell us how many years he has been a U.S. Army JAG officer. He has been so familiar with all these issues and has provided much leadership to it with some great ideas in recent weeks on some of the amendments he has offered. I think people need to listen to what he said about the difference between war and criminality. The President said at the beginning that we cannot treat this as crime; this is war. I think the Congress was all for it. We all said ``yes.'' And now these issues arise again. I thank the Senator for sharing that. I had one more question I wanted to raise with him.

Mr. SESSIONS. Will the Senator yield for one more question?

Mr. SESSIONS. I was pleased to be able to join with Senator Graham and Senators Lieberman, Bayh, Brownback, and a number of other Senators, in forming a caucus or a group to treat the energy threats to this country as a national security threat. Now I think it is unfortunate--and it is a complex Senate that we are operating in today--that ANWR legislation will be a part of that bill. I wish it did not have to be, but things boiled down at the end of the session to that way. I would like to have the Senator share some thoughts on the philosophy of that bipartisan group that energy is security for our Nation.

Mr. SESSIONS

Mr. SESSIONS. I ask the distinguished Democratic leader--he is a great and skilled advocate, and I know everybody is a bit frustrated at the end of the session, but I do not think he meant to accuse the distinguished Senator Cochran and the members of the Appropriations Committee, who have reached a little different conclusion than he would, of being corrupt. He used that word twice. Perhaps it is important for us to recognize that there are a lot of disagreements around here.

Mr. SESSIONS. Mr. President, I ask a question of the Senator before he yields the floor.

Mr. SESSIONS. Mr. President, I will follow up on that. I think the House leadership and many on this side do feel the language would be good for the country and it is the right thing to do. And if everybody agrees, a lot of things happen around here. But if Senator Levin and Senator Warner have concluded they do not want to discuss any additional additions, it is not going to happen; it is just not going to happen. Unanimously, if anybody agreed to add something, something that everybody likes, maybe it could occur. Sometimes one side has to push a little harder to make sure the other side understands how strongly they feel about it. But at some point, if Senators Warner and Levin do not agree to this alteration, it is not going to be in the bill. So as a legal principle, I know they used to always say: There ain't no harm in asking. So they have tried. But I am not sure it will work if we are not going to see their support for it.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I will say something about Senator Reid's, the Democratic leader's, reference to Abu Ghraib, suggesting that this bill, the legislation in this Defense bill has been held up perhaps because nobody wants to do anything about what has been going on in Abu Ghraib. Once again, it deeply concerns me. Once again, we are having the suggestion, if not a plain statement, that we need to pass legislation and we need to have congressional hearings to stop things such as what occurred in Abu Ghraib. I was a member of the Armed Services Committee. I am a member of the Judiciary Committee. We have had about 20 hearings on Abu Ghraib. But do you know how we found out about Abu Ghraib? We found out about it at a press briefing in Baghdad by a U.S. Army general or colonel who said they had reports of abuse at Abu Ghraib and they were taking steps to investigate it. And they did so. They found people had violated the law. They prosecuted them. A number of them are in jail this very day. We did not need to pass one single law for that to happen because it was in violation of military standards. In fact, none of the mistreatment of prisoners at Abu Ghraib had to do with trying to interrogate them. These people were not interrogators. They were prison guards, manning the prison at the graveyard shift, who lost their discipline, abused those prisoners, and had no real excuse for it. As one of them said, Smith--I believe he was a sergeant--he said: We all knew there would be hell to pay if anybody found out what we did. It was not approved. We were not ordered to do it. It was not part of our military standard and training. I remember, very vividly, during that time that an African-American colonel in combat, as soldiers were taking hostile fire--they captured someone, one of the terrorists or bad guys--and he fired a gun beside his head to frighten him and to get him to tell some information. There was a life-and-death matter for his troops. They drummed him out of the service. He never touched the guy. He never hurt him. It was a moment of passion and intense feeling and reaction to being in a life-and- death struggle. He is out of the military even though he had a quite distinguished career. Our military does not approve of abusing and torturing prisoners. In fact, we have a statute that defines torture, and they have worked hard to stay within it. People who do not stay within it get prosecuted. Now, we have ideas to go further, and that has been put as a part of this bill, and it is going to become law. I hope it doesn't go too far. But we have never approved of the kinds of things that went on in Abu Ghraib. We have never approved of torture. We have a statute, passed by this Congress, that prohibits torture by the military or anyone else. We do not allow that. It is not part of our standards as a nation. But to say there can never be any stress on prisoners who have great intelligence, and who are threats to America, I don't think has been consistent with the law of warfare. I will note, parenthetically, that it became quite clear, as went through our hearings, that the Geneva Conventions, which protect soldiers in lawful combat--those protections do not apply to these prisoners. They do not wear uniforms. They do not operate on behalf of a state, a legitimate nation state, even a quasi-legitimate nation state. They do not adhere to standards of behavior. They do not carry their guns openly and their weapons openly. They sneak around and murder women and children, innocent civilians, contrary to the laws of warfare. Therefore, they do not gain the protections of the Geneva Conventions. But they are protected against torture, and they are entitled to that protection. They should be granted it. And if anybody violates those standards, they are prosecuted by the U.S. military. I think the military has taken far too much abuse on this. They did a huge study of Guantanamo, Gitmo. I have been there twice. I know the standards those guards operate under. They have a phrase they greet each other with when they see each other on the base, one soldier to another. They say: Honor bound. And when they see you, they say: Honor bound, sir. They have high standards. They found three abuse cases, most minor, that were discovered after a review down there, and disciplinary action was taken concerning those. But they are not being mistreated every day, abused or tortured. I reject that.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise to express my disappointment with the vote. This is a very important piece of legislation. It is important for our country. I wish to say how hard we worked to achieve bipartisan support. This bill came up in the Senate for reauthorization after 4 years and virtually no serious criticism of the workings of any of the provisions in it. There was a generalized view that we should, in fact, extend it. We discussed it in the Judiciary Committee. Some of us who would like to strengthen a few provisions to protect this country from terrorists did not make much headway there, but we did achieve one thing: we achieved a unanimous vote in the Judiciary Committee--18 to nothing--to report this PATRIOT Act to the floor of the Senate. When it came to the floor of the Senate, we discussed it, and it was cleared by this Senate unanimously. It went to conference. The House had a bill. We discussed it in conference. Senator Specter led our conferees. For those who wanted the Senate bill to win in toto, they were not perfectly happy. But as Senator Specter has said, 80 percent of the bill was the Senate bill. Only a few things were given to the House Members out of the differences in the two pieces of legislation. It comes back here to be voted on. It is blocked from an up-or-down vote so it could be passed and made law before it expires at the end of this year. A tremendous amount of effort and work has been placed into making this a piece of legislation we could all unite behind. We thought we did so. We went to conference, and we came out with a bill that is far more like the Senate bill than the House bill. As someone who served in law enforcement for many years, I urge my colleagues to look at the language of the legislation. I don't believe there is a single investigative law enforcement technique in this legislation that is inconsistent with what we have been doing for years. The average county attorney in any city and county in America today can issue a subpoena for library records. The average county attorney can get medical records on one basis--is it relevant to an investigation that office is conducting? They don't have to get prior court approval to issue those subpoenas. It is done every day. So there has been confusion. I urge my colleagues to think about it. With regard to the delayed notice search warrants, this law in not one whit changes the standards for a search warrant. You still have to have all the proof you have to conduct a search of someone's private property or house. You have to have that. It simply says that you could delay notice to the terrorist organization about what is going on. That is law today. As a Federal prosecutor, I have sought approval of a court to delay the notification of a drug dealer. I saw a story recently about a Mafia investigation in the Northeast. They got a delayed notice warrant under basically American common law. There were no legal standards. Whatever the judge said about how long you would delay in notifying the bad guys is what went on in that case. This bill for the first time sets forth statutory standards that must be approved. You must prove to the judge that it is important to the safety of the country or important to the safety of enforcing the law that the notification is delayed. So you don't get that automatically just because you ask it; you have to convince a court in advance of that. The section 215 provisions require FISA court prior judicial approval. They require reports made to the Congress. They allow objections to be raised. I urge my colleagues to go back and think about the vote you just cast in favor of this bill and review and see if there is anything that occurred in conference that in any way significantly alters or erodes the liberties this country has known and loved and is determined to protect. I urge my colleagues to do that. If they do, I believe they will feel very confident that there is nothing here that goes against what we believe is necessary to preserve the liberties with which we are familiar. Please do that. If you do, I think you will feel a lot better about it. I would be glad to discuss any particular point you would raise. As we go forward, I hope people will feel comfortable in casting a positive vote for this legislation. It is critical that we not allow it to expire. We need to do this bill while we are here. But to continue to weaken the legislation, as some have asked, for beyond what we agreed to in conference is a mistake. We don't need to continue to weaken it. If we weaken it so much that it is not effective, then it is not a good idea. I yield the floor.

Mr. SESSIONS. Mr. President, I want to share my thoughts about Jon Corzine. He had a great record at Goldman Sachs. I didn't really know he was a farm boy. That is something Senator Durbin added to the mix. I think I had heard that but had forgotten it. He was successful in the financial world in an extraordinary way. He was a marine. Of course, every marine I have known has been shaped by that, and I believe Senator Zell Miller wrote a book saying that everything he ever needed to know he learned in the Marine Corps, or something to that effect. Jon Corzine has been an active Member of the Senate. I remember the time we spent together in Montgomery, AL, on a civil rights trip. We were at the church that Martin Luther King preached in on Dexter Avenue, the Dexter Avenue Church. We had a discussion at that time about Rosa Parks, whom we have just honored and who recently passed away. At that very site, Martin Luther King led the efforts of the bus boycott that ended the concept that a person must go to the back of the bus because of the color of their skin. Jon Corzine didn't have to go to Montgomery, but he was interested in those issues and he believed strongly in equality and civil rights. Senator Corzine has been a strong advocate for the Democratic Party and its principles, heading its campaign committee. We didn't agree on those issues, but he was always courteous and professional. I cannot remember a single harsh word that we have had. In fact, I cannot remember him having a harsh word with any other Senators. I have enjoyed the opportunity to know Jon Corzine and to gain respect for him. I wish him every success as Governor of the important State of New Jersey. That will be a challenge, but he has the gift and ability necessary to be successful in that job.

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I remain baffled by the failure today to move forward with the PATRIOT Act. That piece of legislation is exceedingly important. We know for an absolute fact, as Senator Kyl and others have pointed out, that terrorist organizations and their movements and activities were not properly discovered by law enforcement because of a failure to share information and other restrictions that fell on those investigators. That has been demonstrated with clarity. In fact, some say had we not had the wall between the CIA and the FBI and they could actually have shared information, we may have even prevented 9/11. I say this to my friends in this country. Federal agents follow the law. The law said the CIA, which is out dealing with international terrorist groups and others who want to harm the United States, and the FBI, which is given the responsibility of homeland protection and crime enforcement in this country, were not allowed to share information. And they did not do so. It was part of a governmental reform. I think the Frank Church committee thought they were doing something good, but they ended up creating a wall that prohibited the sharing of information that made it far more difficult for Federal investigators to do the job we pay them to do. This afternoon, I saw a lady from New York who was touched by 9/11. She wants this bill passed. As a matter of fact, she was shocked that it was not. Why is she shocked? It just passed this Senate a few days ago 100 to 0, by unanimous consent, not a rollcall vote, but unanimous consent, without an objection. It came out of the Senate Judiciary Committee, 18 to 0. We have a host of libertarians on that committee-- civil libertarians and libertarians. Chairman Specter is very proud of his heritage of civil liberties. All of us take it seriously in that committee, and it came out unanimously. The bill went to the House, and they passed this very bill that we just blocked. The House passed it with a 75-vote majority even though, in fact, the House had to recede and give about 80 percent of the differences in the House and Senate bill over to the Senate side. The Senate bill was clearly the bill that was the model for the legislation on which we finally voted. So we go over to the House. They have some provisions and we have some provisions and there is a good bit of discussion over the issues. Finally, a conference report is agreed to. It comes back over here, and all of a sudden we face a filibuster. The PATRIOT Act will sunset December 31. It will be gone. We will not have the provisions that are in it. Those provisions have played a big role in helping us protect this country from another attack. Who would have thought we would have gone over 4 years since 9/11 without another attack on this homeland? I hope no one thinks that success to date-- praise our Creator--has not been driven in large part by effective law enforcement activities by the FBI, the CIA, and other agencies that are charged with these responsibilities. The compromises reached in the conference committee to work out the differences between the House and Senate bill, according to Chairman Arlen Specter, tilted in favor of the Senate on the disputed provisions by about 80 percent. He said there is not a dime's worth of difference in terms of whether civil liberties were enhanced or not enhanced in the bill that we just voted on and the one that came out of committee 18 to 0 and passed the Senate unanimously. So why would this Senate and the great Democratic Party, except for two of its members, vote to block us from an up-or- down vote on this? I don't understand. I think it is a serious matter. There are provisions in the bill that are important. As I have tried to state, as a Federal prosecutor for 15 years nearly, I remain baffled by the concerns over the bill. I remain baffled because of the fact that every provision in the bill has already been a part of Federal law at some point in time and had never been overruled or found unconstitutional. But many of the law enforcement capabilities that the bill delineates and makes clear and actually creates frameworks for already exist in current law. I knew from the beginning that there was nothing in the bill that was going to be held to be unconstitutional and, indeed, it has not because it was written in such a way that we would not violate the Constitution, and it would be within the principles of our commitment to civil liberties. All of us are committed to civil liberties. One of our Senators, Mr. Byrd, said we don't need search warrants written by FBI agents. Absolutely we don't. We don't want an investigator being able to conduct a search of somebody without an independent order of a judge, and there is nothing in this bill that does that. We don't change the great protection that you have to have a court-approved search warrant, for heaven's sake. There is nothing in this bill that comes close to that. But these are the kinds of charges that have been made, upsetting people and making them think there is something strange or overreaching about this legislation. It passed with only one negative vote 4 years ago, 90-something to 1. We need to get our act together on this bill. I urge my colleagues to read the legislation that Senator Specter has so carefully written so that anybody can understand what the complaints are, to consider what the Department of Justice has said, to listen to the debate, and actually read the legislation. I am convinced that if colleagues would take a moment to do so, they will find that all of our great liberties are protected and, in fact, we didn't give to FBI terrorist investigators the same powers an IRS investigator has this very day to subpoena bank records that relate to a person who may not have paid their income tax. IRS agents can do that on a daily basis. I see my colleague. Maybe I have already utilized over 10 minutes. If I have, I will be pleased to wrap up and yield the floor. I am over 10 minutes. I feel strongly about this mainly because I am so concerned that people have allowed this vote to become a vote on whether one believes in civil liberties or whether one believes in law enforcement. The bill was written and came out of committee--Senator Leahy approved it; he monitored its passage from the beginning--so as not to violate the Constitution, not to undermine our liberties, but to make sure that Federal investigators who are trying to keep another 9/11 from happening here have the same powers as IRS agents. And, indeed, we didn't even give them that much power, in many instances. They still have less in some instances. We need to get our act together on this legislation. We need to move this bill. I don't think it needs to be any weaker. If we come back and water it down and pass it, it would be a mistake. I thank the Chair, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent the Senate stand in adjournment under the previous order.