Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would like to share some thoughts about the PATRIOT Act and its importance to the security of this country, its reasonableness, the careful way in which it has been crafted and adopted, the full debate to which it has been subjected, and I urge our colleagues not to allow this bill to expire, not to allow the wall to return so that our foreign intelligence agencies cannot share with our domestic intelligence agencies information that may be directly relevant to an attack on the people of the United States. That is exactly what was taking place on 9/11. It is precisely why we have had a failure to share important information. And many people believe that the PATRIOT Act possibly could have prevented the 9/11 attacks. It is easy to contemplate situations where other information not shared could have resulted in the lives of Americans being placed at risk or being lost. That is why we passed this bill. We have had a full debate about it. This past reauthorization came out of the Senate Judiciary Committee 18 to 0. Senator Feingold supported it. It came out of the Senate floor by unanimous consent. It went to a conference committee with the House. They had some different provisions in their version, as they always do, and the conference committee hammered out the differences. As Senator Specter, a civil libertarian himself, and chairman of the Judiciary Committee, who was involved in that process said, about 80 percent of what was disputed was decided in favor of the Senate bill. Now we are faced with a filibuster, an effort to block an up-or-down vote on the PATRIOT Act. It is really an extraordinary thing. In fact, some of the provisions put in by the conference committee strengthened the bill, from a civil liberties point of view, more than the Senate bill that left this body. I want to just say, first of all, that the provisions in the PATRIOT Act are in no way extreme, in no way novel, in no way contradictory to the principles of the constitutional law this country has operated under since its founding. I mean that very sincerely. I would say that everything here, in any fundamental way that results in a method by which law enforcement can investigate terrorist activity--those procedures, those techniques, those abilities are clarified in this bill. These are standards that they must comply with, and that have been approved by the Supreme Court of the United States. I remember at one of the hearings I asked witnesses this question: Do you think any of the provisions in this act are going to be found to be unconstitutional by the Supreme Court as required to protect our liberties and enforce the constitutional protections that we as Americans have been given? Every one of them said no. They said that because there is nothing in here that is going to be found unconstitutional. All of these principles and techniques that are provided with clarity, and standards in this act are consistent with what we have already approved in America. But we find that many of the investigatory techniques available to an IRS agent who is investigating somebody for a nonviolent crime involving taxes, or a drug enforcement agent that may be investigating someone for cocaine or marijuana, and many of those procedures that have been approved under the Constitution by the Supreme Court, are not available to investigators investigating terrorists who would kill us. Everybody knows that it is a different matter when dealing with international entities, people who operate outside the laws of our country, who represent foreign powers, who represent international terrorist groups or other groups that are hostile to the interests of the United States. We have always understood that there are spies and we need a counterspy system in our country which will protect our Nation from those who would destroy it. We have always had principles that deal with that. For example, there have been complaints about the national security letters and section 215. Many of these complaints and those who oppose these provisions worry and suggest that something in the PATRIOT Act is novel, unusual, or unprecedented. But it is not so. I think we have had people who are utterly misinformed or sometimes maybe even deliberately failing to accurately articulate what is important and what is correct. The national security letters that have been referred to by some of those who oppose this legislation were not created by the PATRIOT Act of 2001. This tactic, this procedure has been available since the 1980's. All the original PATRIOT Act did was add credit reports to the list of things you could get with a national security letter during the course of an investigation involving terrorism. Sometimes you might need a credit report to determine something about an individual, like where he is moving his money, and that kind of thing. That is all that was really added with regard to national security letters. Use of national security letters is limited to six very specific items: telephone toll records, bank records, credit reports, and things of that nature. These are all things that a drug enforcement agent can get with an administrative subpoena this very day to investigate someone for a drug crime. Yet we don't have similar provisions for the FBI agent who is investigating a terrorist? What kind of idiotic principle of investigation is that? So the bill allows us to do that with national security letters. It has been the law for some time--over 20 years. So we added to the original PATRIOT Act the ability to use a national security letter to get credit reporting records of suspected terrorists--a big change that won't be used much. The conference report more than adequately addresses concerns about the national security letters by setting an extremely high requirement for nondisclosure. Under the report, in order for the recipient to be precluded from telling others that they received a national security letter, a high Government official must certify that doing so would ``endanger the national security of the United States or interfere with diplomatic relations.'' That is an extremely high standard. In fact, I think it is too high. I think that in a terrorist or national security case, the disclosure is not such an important principle that needs this type of protection. In my view, the standard of certification is high because we may not always be able to make such certification. An investigator may not be able to certify to every one of those things and therefore may be denied the right to obtain a record and not have the business notify the person about it. By the way, I will repeat, we are talking about obtaining by national security letter from a third party, records that belong to the third party, not to the defendant or terrorist. You are not going into their house or their automobile or their desk in order to obtain their personal records. These are records being held at a bank, records to which everybody in the bank has access. These records are being held at a telephone company, and show the telephone toll records that you get on your monthly statements. They are not in your control. They are in the telephone company's control. What used to happen was people would subpoena the toll records and ask the telephone company not to tell the customer, if it was a sensitive investigation. That has been done by every district attorney in America. They issue thousands of these subpoenas. Tens of thousands, I suggest, literally every month are issued for bank records, toll records every day. You have some expectation of privacy, but you don't have an expectation that those records will be secretly maintained by the bank or the telephone company when they are requested by a law enforcement officer for a law enforcement purpose, and relevant to an ongoing criminal investigation. That is the law, and it has been that way forever. So now, when asking for these records during the course of an investigation into terrorism, we have to certify that if the recipient discloses to the terrorist that we are investigating their records, it would endanger the national security of the United States or interfere with diplomatic relations. Those are extremely high standards. I know my colleague--and I respect him--Senator Feingold voted for the less restrictive certification requirements that unanimously passed the Senate Judiciary Committee. He was one of the 18 who voted for it. I don't understand an objection now to the conference report that has a higher certification standard. The conference report makes clear that a recipient of an NSL, such as a bank, can consult with their attorney about the NSL without worrying that the consultation would be an unlawful disclosure. The conference report makes clear that the bank can also file a motion to quash the NSL if it does not want to give the government the information requested, and it makes it clear that the bank could ask the court to quash the nondisclosure requirement and allow them to share that information with the customer. So really, the provisions in this conference report only improve the situation from the perspective of civil libertarians, if we reject the conference report these extra protections will not become law. Let's be frank about this. I am telling you how it works in the real world. I have been there. The banks simply want to be protected. If it is lawful for them to turn over the documents they have on a customer to a law enforcement agency without notifying their customers, they are perfectly willing to do so. But if they are told that in the law, their lawyers are now telling them to protect themselves by notifying customers that they gave their records, and they routinely do so to protect themselves today. They didn't used to do that 25 years ago, but it is because of the threat of being sued that they do that routinely now. So it is critical that they not disclose because when you are looking at a terrorist organization, a cell that may be plotting to bomb someone but you are not sure who is in it and what it is about, and you are trying to find out about it, maybe you want their bank records, maybe you want motel records, maybe you want telephone toll records. They can provide incredibly valuable information to an investigator. This can prove whether the person being investigated is connected to terrorists. If you get their toll records and there are 25 phone calls to Yemen to somebody who has been identified by foreign intelligence as being connected to al-Qaida, then you have something. So that is very important. You may not be prepared at that moment to arrest the person. There may not be enough evidence to arrest them, but now you have a series of phone calls from a person who is a suspect in some city or State in this country calling a known terrorist in some other part of the world. You want to proceed with this investigation, but you don't want them to know you are on to them. That is so basic. Talk to investigators. This is what it is all about. It is not academic. This is life and death. We can't ask too much of our investigators. We can not tie their hands by demanding they prove these things beyond a reasonable doubt, and certify all these facts that they are looking for as true before they do an investigation. How do you get the facts? How do you get them? You have to gather the facts. But if we are not able to gather the facts in a terrorism prosecution with reasonable investigative tools, then how can we ever investigate a case and make a good case? I feel strongly that this is an incredibly important provision and, in fact, is more civil liberties protective now as it has come out of conference than it was when it went to conference. With regard to several other matters, I find the debate to be out of sync with reality. Let's talk about the delayed notice search warrants, the so-called sneak and peek. This provisions is dealing with an everyday, regular search warrant. These are the type of warrants you need a court to approve if you are going to search someone's private house or office. This is not the same as going to the bank and getting a record on third parties. This is a search warrant to get somebody's own property. You can't take that property without a search warrant approved by a judge, and if it is a Federal case, such as a terrorist case, it will be a Federal judge. To get that warrant, you must prove to that Federal judge through an affidavit by real witnesses that there is probable cause to believe that person possesses evidence relevant to an important criminal investigation. Senator Feingold is correct, when you get a warrant approved on probable cause and then conduct the search, you should do it and give the return on the warrant to the individual whose property has been searched. If for some reason they are not there, you usually tack it on the door so they will know you have come, and that is the traditional way search warrants are done. In the course of these kinds of investigations, I have had the personal experience on rare occasion to seek delayed notification, and I have heard of it on other occasions, I have read about situations where delayed notice is needed. Courts have approved through the common law process search warrants which they approve delaying notification to the person being searched. There can be many reasons, as one can imagine, why this delayed notice could be good. It had been done for a long time, long before the PATRIOT Act was passed. The U.S. Supreme Court has approved the procedure for delaying notice of a search. All the delayed notification language does in the PATRIOT Act is set forth standards about how delayed notice procedure should be done. The Senate bill, when it came out of our committee and voted on the floor, said you have to either to notify the defendant in 7 days that you did the search or come back to the judge within 7 days and ask the judge for more time before you notify them and set forth a reason for needing more time. The House passed bill said you could delay notification for up to 180 days before you had to go back to the judge and ask for more time as a reason to delay the notification. Maybe you have gone in there and found they are putting material together to make a bomb, or you may find information that bad guys are coming into town and you need to wait on them, those kinds of things might justify further delaying notification. There may be a very delicate investigation of the most critical national importance. That is why delayed notice has been around for decades and that is why the PATRIOT Act sought to provide a national standard for delayed notice. So, the House was at 180 days, and the Senate was at 7 days, and we had a conference. We reached an agreement on 30 days. Well, you would think this is the end of the world if you believed some of my colleagues. If you are going to have delayed notification, how long should it be? Seven days is not a disaster for an investigator, although it is pretty tight deadline that could cause a good bit of problem. Thirty is much healthier, in my view. But whether it is 20 days, 40 days, whatever, this search has to be approved by a judge before it can be conducted. And if the defendant is not notified immediately, then they have to go back and establish to the court through evidence and proof that the delay should continue beyond the time period set. It is not a big deal. To suggest that 7 days or 30 days is a difference that invokes some sort of huge constitutional principle that we should block this bill over and not even give it an up-or-down vote because of is beyond my comprehension. It is not a critical difference to our liberties whether it is 7 or 30 days. Some might have a different opinion. We had to reach a compromise. We rejected the 180 days. We took the 30 days, which is a lot closer to 7 than 180. In my view, the Senate already won on this issue. There are a lot of other issues of the same import. I believe we have gone beyond the pale in criticizing this bill. It has been in effect for 4 years. None of it has been found to be unconstitutional. It is now going to be extended. It is already being curtailed by this conference report in a number of different ways to make the act even more friendly to civil liberties than it was when we first passed it. Nothing in the first bill, frankly, represented any reduction in any of our liberties, the claim that it did is simply untrue. This conference report has the full support of Chairman Specter and former Chairman Hatch. Senator Leahy voted for the reauthorization bill before. He voted for it in committee and then did not object to it moving by unanimous consent off the floor this year in the Senate. So now we have some that are making objections to some of the modest changes that were made in conference. I, frankly, think these changes were very minor. Our colleagues should not do that. To jeopardize the continuation of the tremendously valuable principles of the PATRIOT Act by filibustering this bill--and it will extinguish, critical parts of it will end soon if we do not break this filibuster and pass the reauthorization this week--is unthinkable to me. So I encourage my colleagues, please do not get upset about the conference report by believing the misinformation that is out there, please read and think carefully about what is in this bill. If they do so, they will find that all the provisions in it are consistent with sound constitutional law. All of these actions and provisions will be affirmed by the Supreme Court, many of them already have been, and it will be a tremendous advantage to our investigators who are working their hearts out this very day, this night, some places in this country today, investigating those who would do us harm. I will probably share some more thoughts on some of the other provisions tomorrow but at this time would yield the floor and in a moment would, on behalf of the majority leader, do a wrap-up before we conclude. So therefore I will not put us in a quorum call at this time.

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, if other matters come up, I would be pleased to conclude my remarks and yield to others who may be speaking relative to the reconciliation matter. But I want to talk at this time about the PATRIOT Act, and I want to go straight to the heart of the complaint that we have had against it by first observing that most of the complaints that we have heard, from my perspective, are emotive. They are not specific. Generally, they boil down to say we can't allow our liberties to be eroded out of fear that the terrorists would win-- words to that effect. Certainly, that is true. There is no doubt about that. Some contend that we have rushed into the PATRIOT Act, that all facts were not considered, that the bill was moved rapidly, and they suggest that provisions dangerous to our liberties were placed in the PATRIOT Act as a result of the emotions that arose after 9/11. But that is not true. I was on the Judiciary Committee when all of this occurred. I remember the debate that occurred. This legislation was carefully drafted. The best minds in our country participated. The Judiciary chairman, Orrin Hatch, and his ranking member, Senator Patrick Leahy, deserve great credit for that. The U.S. Department of Justice was engaged, groups from the left and the right, civil liberties groups, the American Civil Liberties Union. All of those groups knew what was being considered. They had an opportunity to and did comment on the language. The Senate gave it careful attention, and the legislation moved. But it took some time for it to move. We spent a great deal of time considering the language. Anything that raised the slightest possibility of being abused, or even some theoretical fear that it could somehow be abused, was considered carefully. Every line was examined. Every word was examined. Words and lines and provisions were altered continually to address the concerns and fears some people had. Law enforcement procedures long used and long approved by the Supreme Court were attacked during this process as somehow violating the fundamental liberties of Americans. It was breathtaking to me as a prosecutor of over 15 years to hear some of the charges being raised against practices that amount to nothing more than standard police procedure which are done in every State and every county in America. It was attacked as something that was somehow going to destroy the liberties that this country takes so seriously. It is OK, I would say. That is good debate. It is a free country, and maybe it is good that our watchdogs are ever ready to point out any error. And perhaps some of the changes we made were better as a result of complaints that were raised. I don't dispute that. Some changes, however, I think were probably not good. But at any rate, great efforts were made to allay the fears and concerns and make sure this bill did not go too far. Yes, it is good to have watchdogs, but you don't want the watchdogs biting the house owner. I want to have a bill that protects the owner of the house. We discussed these issues and addressed them line by line. Senator Leahy, ranking member, civil libertarian for sure, made certain that the process was open. So did Senator Hatch. Even the most arcane fears were addressed. It was a good process. We left out things in this legislation that I would liked to have seen. But those things eroded some support, and people were concerned about it, and we left that out. But surely we have not forgotten that this debate just occurred 4 years ago. It was full and vigorous, and the legislation we passed was certainly not something that was rushed through without consideration. Most importantly, we took down the wall that prohibited our Central Intelligence Agency and Defense agencies to gather intelligence around the world that might be relevant to attacks on our homeland. This wall--this legal barrier--prevented them from sharing that information with the investigative forces in the United States, the FBI, and the local police, so that they could use it to protect the citizens of America. There was a wall created by the Church committee-- an overreaction, frankly, to the Watergate problems that arose during that period of time. And they created this wall. So the data and the information couldn't be shared with the FBI, and the FBI couldn't share information with them. This wall perhaps even prevented the FBI from finding more information that would validate information they already had, and therefore left us less able to defend America and to effectively utilize information about criminal elements that would be important to us. This was an unbelievable situation. But it was the law of the United States. Some people say surely the agents are not going to do that. Surely, if Defense agencies or the CIA found information that a terrorist organization may be threatening America, they would pass it to the FBI. No. They were not. It was against the law that Congress passed. I think there were bits of evidence proved that indicated that had that wall not be there we might possibly have stopped 9/11. But it is easy to see after the fact that there are circumstances in which that wall would have allowed another 9/11 to happen when, and if it had not existed, we could have stopped it. There is no doubt about that. It is easy to see scenarios where that would happen. So that is one of the most important things that was part of this act. It was important. This bill is expiring. If we don't extend it now, that wall will go back up. I say to my colleagues, this legislation is critical to national security. It is extremely critical to our national security. We are thankful and most pleased that we have gone now 4 years since 9/11 without another major attack on our homeland. It is something that I would not have thought possible. I can tell you that one reason it has not occurred and that we have not had another attack is our local law enforcement, our FBI, and our intelligence agencies which are working together effectively, and with a focus we have never had before on these kind of issues. It is remarkable what they are doing. They have given their heart and soul to it. Frankly, it amazes me to hear people on the floor of the Senate and outside of the Senate often suggesting that the FBI and our investigative agencies are threats to us. There is a paranoia that is not helpful. I was a Federal prosecutor. I worked with the FBI for many years. These individuals are patriots. They are working night and day to protect our country. We have created many hurdles for them that are difficult for them to overcome and which can actually impair their ability to identify and prosecute terrorist cells that may be operating in our country today. It is not a theoretical matter. This is a matter of tremendous importance. We need to focus on it. I will go straight to the areas raised as concerns and that have formed the basis of objections from many of our colleagues--some of our colleagues, not many--and from outside groups. I recall the Senate PATRIOT Act bill cleared the Senate Judiciary Committee 18 to 0. It passed the Senate unanimously by unanimous consent. The legislation then went to conference committee. Much discussion and debate went on with regard to the House version and the Senate version. Frankly, they were not that much apart. Compromises were reached. The Senate bill did rather well as these things go in terms of our side prevailing. We came out with a pretty good bill. I was excited about it. I am disappointed now we have Members of this Senate filibustering the PATRIOT Act, alleging that there is some sort of big change that has occurred that threatens the liberties of Americans and that we do not need to extend it. It is beyond my comprehension. Let's talk about some of the issues. I will do it the best I can, fairly and objectively. I will try to say what I think the provisions mean. I will try to give a historical context for these provisions and make some comments with regard to why they are important tools for our law enforcement. Our investigators are American heroes. They are working in every community. Before September 11, we had, I believe in Arizona, people learning to fly an airplane. They did not want to learn how to land it; they just wanted to learn how to fly it. In Wisconsin, Minnesota, we had other information that came up which was not properly assimilated and not properly evaluated. We had information from Florida that a number of terrorist groups had been stopped for speeding and other activities. The dots were not connected at that time. We know those stories. We were not as focused at that time as we are today post- September 11. We are more focused today. Some of the problems we had at that time were a result of inadequate laws and procedures that made it even more difficult for investigators to investigate national security threats and terrorist threats, than it is to investigate dope dealers and tax evaders--unbelievable, but it is so. There has also been a lot of discussion about national security letters, what they are and how they operate. I would like to have seen terrorist investigators given administrative subpoena power. That is something other agencies have. The Drug Enforcement Administration can issue subpoenas for financial records, telephone toll records, motel records, and bank records. They just issue a subpoena, and they give them a record. The IRS can get records like that in the same way. The Customs Service and many other agencies have the ability to obtain records administratively. But people were concerned about this and said this would be abused. We worked and worked on it. This is what we came up with. It is a very modest proposal. It is a proposal and a legislative enactment which is fair, which is restrained, which is consistent with our history as a nation and consistent with approved criminal justice procedures by the Supreme Court of the United States. For example, the national security letter is a procedure by which the Federal investigative agent can request information from a third party to obtain financial records, telephone toll records, credit reporting records, and a limited number of records like that. You cannot get medical records. You cannot get library records with a national security letter. But these are the routine things often critical to investigating a terrorist organization. It is extremely important. These cases can move very fast. If you have to have a court order to get it and you need the information on Friday night but cannot get a judge somewhere, death can result. It can be a matter of life and death. It can be a matter of whether an investigation breaks your way and you get the key information necessary to penetrate a terrorist cell or not. This is absolutely consistent with what other agencies have as a matter of their legitimate power. We ought to be able to do that in terrorist investigations, for heavens' sake. There is no doubt about that. This is extremely important. Looking at the perspective, it is very important--and I know the Presiding Officer is a lawyer--to understand the principles of privacy and search and seizures that are at stake. These subpoenas are not subpoenas to an individual's personal, private records; these are subpoenas issued to third parties. A defendant does not own the telephone toll records. If he does not want the telephone company to know whom he has called, he should not use the phone company. Everyone in the phone company can access the phone numbers he calls--not the contents of the conversation--and can find out whom that person has called. When you go to the bank and use it, the bank maintains records on your account. Those are not your records; they are the bank's records. If you have a credit reporting agency that has collected public data on your payments, they can examine it; why can't an investigator investigating a terrorist have access to that, pray tell? In these areas, there is not the same expectation of privacy. The U.S. Supreme Court has said repeatedly for the last 100 years or more that you do not have the same expectation of privacy you have in those records because they are not yours. They are somebody else's records. You have an expectation of privacy and the search and seizure laws and search warrants apply to matters in your house, matters in your car, matters at your office desk, any location in which you have exclusive control and dominion. If it is yours, you have a right to it, and the Government cannot come into your house, cannot come into your business and take those kinds of records without a search warrant approved by a Federal judge based on probable cause. They have to file affidavits under oath stating what facts are there to justify the entry into an individual's home or business to obtain those personal records. This national security letter has nothing to do with the records people own. It in no way changes that historic right that your private property cannot be taken or searched without a warrant approved by a Federal judge in a Federal case. These are records belonging to third parties, and they are subpoenaed every day. Every district attorney in America can subpoena your telephone toll records if he believes they are relevant to an ongoing criminal investigation. That is the standard. That is the standard for Federal prosecutors. The U.S. attorney--which I was for 12 years--issued tens of thousands of subpoenas for those kinds of records routinely on the simple test of whether it is relevant to an ongoing criminal investigation. If you are investigating a drug dealer, a drug deal goes down, and the dealer says, I don't know John Jones, and you subpoena his telephone toll records and see that he made 8 phone calls or 25 phone calls to John Jones in the hours leading up to the dope deal, you have pretty good proof to use at trial. That is the way you make cases. That is the way investigations are done. If they say, I didn't make any money off that, you check his bank record, and see that he deposited $10,000 in cash. That is proof that goes toward whether this person was engaged in selling dope for cash. That is the way you prove cases every day. This is the way you have to prove cases against terrorists. I make that big point. I have heard people on national television say they can go into your house and search your house without a warrant. Absolutely not true. The great protections to your home and property were changed not one whit by the PATRIOT Act. It simply allowed the Federal investigators in terrorist investigations to have a much improved ability to timely obtain records. I am telling you, when you are investigating one of these groups and you get a call, a tip, from someone who says, there is a group over here that is pretty dangerous, and we just heard one of the terrorists is coming in from out of the country to meet with them, and you need to check their telephone toll records or check the motel to see if they have been at this motel, to verify whether this occurred, subpoenas can be issued like that. But you do not need to have to go to the FISA court, a Federal court, to get approval any more than a local district attorney would have to do that. As I have indicated, other agencies have these requirements, have these abilities today. It is no big deal, in my view. Now, what else did we require here? We required that the individual issuing this national security letter, the Federal agency that approves it, certify that it is a national security matter. That is an important certification. They have to do that under oath. Some people may think: Well, they may not comply with that. They could go and break in your house without any warrant. But that is not the way Federal agencies operate. I have worked with them for the biggest part of my career. They do not violate the law. They do not violate this wall between the CIA and the FBI. We have seen that to be true. They do what they are told according to the law. Congress makes these laws, and we need to make sure that laws make sense and do not undermine the ability of those out there working every day to be successful in their work. So it has to be certified, and if an agent lies about that, he or she can lose his or her job, trust me. They also have to certify that it is a matter that endangers the national security. I think that is too high a burden, frankly. Maybe you do not have that much proof right now that it actually endangers national security, but it is a terrorist organization that you need to dig into and watch more closely. But we have to certify to that. That was part of what it took to get the bill passed, and we just have to live with that. It is something I am not happy with. Remember, the recipients of these national security letters are third parties who have records--the phone company, the bank, and those kinds of agencies. They can object. They said: Well, they can't object. Yes, they can object. They can file a motion to quash under this bill if there is any abusiveness there, and they can object to the secrecy requirement, and it then requires, if they object, the Attorney General of the United States or one designee of his--the Deputy Attorney General probably--to personally certify that this is a need in which the national security is implicated. That is what you can do. Let me just pause for a second. Nothing is more important in this act than the fact that we have a system by which our investigators, in terrorist cases, can obtain information from entities that have records relating to these terrorist organizations without those entities telling the terrorists we are investigating them. The last thing you want them to know is that you are onto them. That is so basic in law enforcement. I have been there. I have seen the investigations of drug organizations and things of that kind. You do not want them to know you are onto them. Once they know that, they will scatter like a covey of quail and not be around. They will regroup somewhere else to carry on their evil deeds. Now, you can do that today, but let me tell you the history of it. When I became an assistant U.S. attorney in the 1970s, if you subpoenaed bank records, you would ask the bank or their agents not to report it to the customer, and they would not do it. But in the years that have gone by, the banks have been sued, so they have gotten lawyers and feel they have an obligation to their customers. Almost all of them have a policy that if a customer's records are subpoenaed, they notify the customer. So that has been a change in policy, and it can be devastating. Sometimes, you desperately need some of those records, but you do not need to tip off the organization you are investigating them. Most of the time, these companies have no real objection, because this eliminates their legal responsibility that lawyers say they may have, and this allows them to reveal it. They are satisfied. You get the records, and they do not tell the terrorist that you are getting them. That is one of the most important things in this whole legislation. So, as I said, they can object. They can object to the fundamentals through a motion to quash a national security letter, and they can object to the secrecy requirement and require the Attorney General of the United States to certify that it is appropriate to be maintained secret. Further, the bill says the Department must issue an annual public report to the Nation on how many of these have been issued and under what category. Also, as part of the conference, we dropped legislation that made it a misdemeanor, with up to 1 year in jail, for a business to violate the court order and reveal the subpoena to the terrorist. I am amazed we did that. But people objected, and to make people happy, we removed the criminal misdemeanor penalty for somebody who tips off the terrorist that the Government has obtained information on them. I think that is terrible, but it is part of it, so it is one of the things I have to accept. If some of my colleagues have concern on the other side, they have to realize no bill is perfect, and we take what we can get. I see our Budget Committee chairman, Senator Gregg. I was prepared to talk about some of the issues relating to section 215. We can do that later at another time, and I would be pleased to yield to Chairman Gregg if he has some matters he wishes to discuss at this time.

Mr. SESSIONS. Madam President, I think the Senator is fundamentally correct. Sometimes investigators need to know which books have you checked out. I prosecuted an individual one time who was a doctor. They made a TV movie out of it. He had a book, a death dealer's manual in his possession and another one on deadly poisons. But when you are trying to prosecute a case, the fact is that this covers even book sales, for example. Any district attorney in America today can subpoena the book store and find out what you or I bought, if it is relevant to a criminal investigation. In this case, not only must it be relevant to any investigation, it must be relevant to a national security investigation in which the issuer of the subpoena must certify that it endangers the United States. It is a very rare occurrence. The only difference is that there is an automatic ability for the Government to request that it not be revealed to the person investigated on an immediate basis. These records are available today. The library association, in my view, has misunderstood the principle of law enforcement. Yes, you do not want people willy-nilly probing library records to see what people are reading. Of course, that is not legitimate. But when you certify it is a national security investigation, important to the safety of the United States, when you issue one of these subpoenas, I can't imagine anybody would object to that. It is certainly consistent with the generalized principle of subpoenaing records. I thank the Senator for raising that. I do believe this is out of sync with reality and the complaints are not justified. If we were to find out that people, agents were probing, going around the country willy-nilly inspecting people's reading habits, this Congress would react just like that, and we would pass laws to stop it. We would get people fired if they were doing those kinds of things. That is in violation of Department of Justice procedures and policies. Anybody caught doing that would be fired on the spot. That is absolutely improper. But when you are investigating a terrorist organization, this is a modest proposal that requires the Government to have a high standard of proof, to support how they have done it, and is otherwise constrained in a way that the Senate Judiciary Committee agreed to by unanimous vote of 18 to nothing. I would like a little later to talk about section 215 which requires a higher standard, and library records are part of that. With regard to library records in particular, along with medical records, you must present that to a Federal court, a FISA court, and get an approval in advance before you can get library records. It requires advance approval. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table.

Mr. SESSIONS. I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 332, which was submitted earlier today.

Mr. SESSIONS

Mr. SESSIONS. As in executive session, I ask unanimous consent that the following committees be discharged from further consideration of the nominations mentioned and that they be placed on the calendar.

Mr. SESSIONS. From the Foreign Relations Committee, Marilyn Ware, PN 1015; from the HELP Committee, Stephanie Monroe, PN 651; from the Homeland Security Committee, Donald Gambatesa, PN 870.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 333 submitted earlier today.

Mr. SESSIONS. I ask unanimous consent that the resolution and preamble be agreed to en bloc, the motion to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record, without intervening action or debate.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that at a time to be determined by the majority leader, in consultation with the Democratic leader, the Senate proceed to the consideration of the conference report to accompany H.R. 3010, the Labor-HHS appropriations bill. I further ask consent that there be 90 minutes of debate under the control of Senator Harkin, 30 minutes under the control of Senator Specter, and 10 minutes for Senator Coburn; further, that following that time, it be temporarily set aside with the vote to occur on the conference report at a time to be determined by the majority leader, after consultation with the Democratic leader, with no intervening action or debate.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I further ask unanimous consent that the first 90 minutes be under the control of Senator Harkin. I further ask unanimous consent that following the use or yielding back of that time, the conference report be set aside, the Senate resume consideration of the PATRIOT conference report, and that the next 2 hours be equally divided between the two leaders or their designees; provided further that following that 2-hour time period, the Senate stand in recess until 2:15 for the policy lunch to meet. I also ask unanimous consent that the time from 2:15 to 3:30 be equally divided between the two leaders or their designees; provided further that at 3:30 the Senate resume consideration of the House message to accompany S. 1932, with all time having been considered used, and the Senate proceed to a series of votes in relation to the remaining motions in the order offered; that the order of motions would be DeWine, Kohl, Kennedy, and Reed; and finally, I ask unanimous consent there be 2 minutes equally divided between each of those votes.

Mr. SESSIONS. Mr. President, on behalf of the majority leader, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9 a.m. on Thursday, December 15. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and the Senate then proceed to the conference report to accompany the Labor-HHS bill, as under the order.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, tomorrow we will be considering several measures throughout the day. We will begin the day with debate on the Labor-HHS appropriations conference report. We will resume debate on the PATRIOT Act conference report. At 3:30 we will begin the final series of votes with respect to the remaining motions to instruct on the deficit reduction bill. We also expect to stack the Labor-HHS conference report in that series of votes. Other votes may occur as we work on either executive items or on other legislative issues.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the bill be read a third time and passed, the motion to reconsider be laid upon the table, and that any statements related to the bill be printed in the record.

Mr. SESSIONS. Mr. President, I ask unanimous consent the Senate proceed to the immediate consideration of H.R. 327, which was received from the House.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 182, S. 449.

Mr. SESSIONS. I ask unanimous consent the bill be read a third time and passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the Record.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent to speak as in morning business.

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

Mr. SESSIONS. I suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. That was before 78 Members of this body--a majority of the Democratic Members along with a majority and maybe all of the Republicans--voted to authorize hostilities in Iraq.

Mr. SESSIONS. I hope every Senator was listening to Senator Kyl's explanation of the important issues that have been raised. I hope the American people are listening. He served on the Intelligence Committee. He has been through these debates from the very beginning. He is a man of integrity, and he will be responsible in summarizing the matters that came before us. He indicated that we hear allegations that things were black and white, when those of us who heard the briefings didn't hear them that way. They weren't black and white. The aluminum tubes--I ask the Senator from Arizona, regardless of the detail of it, whether he heard from those who debriefed us and got various opinions about that issue, and we were not misled. We were told there were various ways to interpret that evidence, were we not?

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 Friday, November 18, 2005, immediately following a vote on the Senate Floor (tentatively scheduled to occur at 9:30 a.m.), in the President's Room, S-216 of the Capitol, to consider favorably reporting S. 2027, the U.S.-Bahrain Free Trade Agreement Implementation Act.

Mr. SESSIONS

Mr. SESSIONS. I thank the Senator from Kentucky for his remarks. So many of the Senators whom I have talked to feel the same way. Many have come by, Chairman Specter, Senator Domenici, and others to speak to William. He will be here a few more weeks, but we will be out most of that time so this is probably our last time to get together. Let me keep reading what William's colleagues have told me about him. Wendy Fleming, legislative counsel to Senator David Vitter, says this: William Smith is truly a great American. He has a tremendous respect for the Constitution and the courage to stand-up for his core values. It was an honor to work for him. William Henderson, counsel for Senator Jim Bunning, says this: Three of the things Americans cherish the most are God, country, and family. That is as true for William as anyone. Every day he lives his Christian faith. He works with a love of this country and defends the Constitution. Now he is leaving to start a family. William has been a great friend and teacher to me, and I am better for knowing him. Chris Jaarda, legislative assistant for Senator John Ensign, says this: Every American should know the name William Smith and the character that he possesses while working on their behalf. His commitment to principle and respect for the rule of law, is unquestioned. Were William your lawyer, you would be served by a skilled advocate, committed to the highest standard of ethics and professionalism. Were William your judge, you would observe someone with the utmost respect for the Constitution and our laws. Were William your friend, as he is mine and countless others who serve in the Senate, you would be blessed; better for knowing him. Chad Groover, counsel to Senator Chuck Grassley, says this: William and I came to the Senate Judiciary Committee the same day, April 16, 2001. From that day on, William has been a close friend, mentor, and encourager. His strong Christian faith and unwavering commitment to conservative principles have been an example to me. The American people are truly better off because of William's service. He took to heart the adage that ``the government is best that governs least'' and, consequently, never let a bad bill go unchallenged. William represents the best there is in public service. I'll miss working with him on the Judiciary Committee, but I know that in Alabama he will continue to serve his Country and his Savior with the utmost distinction and fervor. Drew Ryan, director of Government Affairs for The American Center for Law and Justice, says this; William Smith is a man of character, a man of vision, and best of all, a man strong in his faith. Tim Chapman, senior congressional liaison and national political writer for Townhall.com, says this: William Smith's steadfast adherence to conservative principle has been an inspiration to me both personally and professionally. He is a man of character who our organization could always count on to put principle ahead of politics. His absence from the United States Senate and from the Judiciary Committee in particular, will not to without notice. It is clear that William has influenced a great number of his colleagues and leaves behind a committed group of friends dedicated to advancing this great Republic's founding principles of federalism, liberty, and democracy. He will undoubtedly be missed by them, as he will be missed by me. He has served me and our State faithfully and tirelessly and in doing so has served our great Nation immeasurably. Let me say I am already looking forward to working with him again after he goes back to the great State of Alabama. I have no doubt that he will continue to work toward the greater cause of service to his fellow man. William, we appreciate you. No one has given more to this country. From the time you get up in the morning until the time you go to bed at night, you are committed to doing the right thing for this country. I love you for it. Your friends love you for it. God bless you in your future endeavors.