Mr./Ma’dam President, our intelligence community should never be forced to question whether our priority is protecting Americans’ safety or protecting the privacy of terrorists.  This bill makes clear to our intelligence professionals that keeping our nation safe is their highest responsibility and ensures they have the tools needed to get the job done.

 

Which is why I rise today in support of the USA PATRIOT Reauthorization Act of 2009, a bill which I am proud to cosponsor along with two of my colleagues, the Chairman of the Homeland Security Committee, Senator Lieberman, and the Ranking Member of the Judiciary Committee, Senator Sessions.  At the end of this year, three FISA provisions—the lone wolf, roving wiretap, and Section 215 business records authorities—will expire unless Congress acts to reauthorize them.      

 

The legislation we have introduced today reauthorizes, without change, these vital national security tools for four more years.  While I believe each one of these tools should be made permanent and that Congress plays a dangerous game with our national security every time we impose arbitrary sunsets on necessary authorities, it is essential that the Intelligence Community’s ability to collect life-saving foreign intelligence information continue unimpeded. 

 

Our bill also makes conforming changes to the disclosure requirements for national security letters in light of the Second Circuit’s decision last year in Doe v. Mukasey.  These changes are essentially identical to those that were included in the PATRIOT Act reauthorization bill recently reported by the Senate Judiciary Committee. 

 

These issues are so critical and urgent to our well-being and security as a nation – nothing else will matter – even the current health care debate – if we fail in national security.  I have spoken before on this floor about the need for President Obama to make a decision about Afghanistan and I will not repeat those points today.  But as our military, intelligence, and law enforcement professionals defend the United States and its allies against terrorism, here in Washington, there is an effort afoot to make this fight much harder than it needs to be. 

 

The USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act were passed overwhelmingly by Congress in the aftermath of the September 11^th terrorist attacks on our nation as we confronted the harsh reality that our laws were too restrictive to fight the type of enemy we now face. 

 

For years, terrorism was treated as a law enforcement matter.  Our nation responded to terrorist attack after terrorist attack, to the deaths of our servicemembers and Embassy personnel, with indictments and arrest warrants.  As Congress failed to give our intelligence operators the tools they needed to act quickly, our terrorist enemies became more emboldened and more determined to strike our Homeland.  September 11^th finally woke us up.  Our driving mission appropriately became the prevention and disruption of terrorist attacks at home, against our troops overseas, and against our allies.  The USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act provided the tools necessary to carry out this vital mission.

 

In 2005, the USA PATRIOT Act was reauthorized with minor changes, but three important FISA provisions remained subject to sunset.  Today, with the introduction of the USA PATRIOT Reauthorization Act of 2009, the Senate has the opportunity to affirm that these three provisions are vital to our national security and should be extended without revision.

 

 There is little disagreement that these provisions should and must be reauthorized.  FBI Director Robert Mueller testified before the Senate Judiciary Committee that each one of these provisions is important to the FBI’s work in both national security and criminal investigations.  But their importance does not end there.  Because of enhanced information sharing rules and procedures, other Intelligence Community entities like the National Counterterrorism Center and the National Counter-proliferation Center are often dependent upon the information collected under these authorities.  The loss of these authorities would adversely impact the ability of the Intelligence Community to analyze and share this important national intelligence information.

 

For example, if the FBI obtains a court order under FISA for a roving wiretap targeting a terrorist subject in New York, foreign intelligence information obtained from that wiretap may be shared with the CIA, enabling them, in turn, to target associates overseas.    

 

Events over the past month underscore the importance of giving the FBI and our other intelligence and law enforcement agencies all the tools and authorities they need to stay ahead of terrorists.  From the disrupted terror plots in New York and Colorado to those in Illinois, Texas, and North Carolina, we have seen firsthand why the FBI must have the flexibility to get the information they need as quickly as possible to prevent attacks here at home. The benefit of our intelligence collection authorities, however, does not inure just to our own citizens.  Just as overseas threats may impact our own safety, threats posed by some within our own country do not always have their end here.  Just this week, we learned of two men in Chicago conspiring with associates overseas to commit terrorist attacks in Denmark.  This case is a good example of how these FISA authorities can be used to save lives in other countries.  We simply cannot afford to relax our vigilance at home or abroad. 

 

There is a belief among some that as long as the Intelligence Community eventually gets the information it needs, time is not of the essence.  But in each one of these disrupted plots, timing was everything—whether it was introducing an undercover agent to a target at exactly the right moment of vulnerability, or conducting surveillance at exactly the right time.  I have never heard an intelligence collector say that they would rather get the same information three weeks from now than today.   

 

While I cannot comment on the specific tools that were used in foiling all of these plots, we know both from public and classified testimony and information that the tools and authorities provided under the USA PATRIOT Act, including two of the three expiring provisions, have been invaluable to our efforts to stay ahead of our terrorist enemies. 

 

As I mentioned earlier, the FBI’s ability to obtain a roving wiretap under FISA will cease at the end of this year unless Congress acts.  According to Director Mueller, the FBI has used roving wiretap authority 140 times over the past five years.  The ability to track terrorists even when they repeatedly use and dump their cell phones to avoid interception is, as Director Mueller testified, quote tremendously important unquote. 

Director Mueller noted that, with all the new technology, it is nothing for a target to buy four or five cell phones and then use them in quick succession.  I couldn’t agree more.  Our enemies, I have found, often know our own laws better than we do.  They understand the hoops and hurdles the government must clear to catch up to or stay ahead of them.  Roving wiretap authority sends the clear message to these terrorists that the time-honored trick of frequently changing a cell phone won’t work like it used to. 

 

Obtaining a roving wiretap requires, first and foremost, that the FBI establish probable cause to believe that the target is an agent of a foreign power.  Some critics of this provision claim that it allows the FBI to avoid meeting this standard as surveillance moves from phone to phone.  That is simply not accurate.  Each wiretap application is approved by a FISA Court judge.  If a target changes his cell phone and the FBI moves to surveil the new phone, the Court is notified.  All of the protections for U.S. person information that apply to any other FISA wiretap also apply to roving wiretaps.  In short, while this authority is a tremendous asset for the FBI, it poses no additional civil liberties concerns and it should be renewed without delay.   

 

Over the past several years, the rallying cry against the PATRIOT Act from some on the left has centered on Section 215 FISA Business Records authority.  This authority allows the FBI to obtain business records, such as hotel information or travel records, upon a showing of the requisite burden of proof to a FISA Court judge. 

 

Now we have heard time and again about how the FBI is using this authority to spy on people’s reading habits at the local library.  This is simply high-charged rhetoric, unsupported by the facts.  While the FBI has used Section 215 authority more than 250 times in the past five years, no library records have been obtained.  But we do know that terrorists and their associates have used library internet access to communicate with each other, and in the appropriate case, the FBI must have the ability to obtain any relevant records relating to that usage. 

 

Congress should not pass any legislation that would allow terrorists to use libraries or any other revered public facility as a safe haven for their illegal activities.

 

The Inspector General from the Department of Justice conducted several audits of the FBI’s use of Section 215 orders and found no abuses of this authority.  These audits also considered the time it takes for the FBI to obtain a Section 215 order.  Director Mueller testified that the business records sought by the FBI in terrorism investigations are: quote absolutely essential to identifying other persons who may be involved in terrorist activities unquote. 

The records obtained under this authority are no different than what the FBI could obtain in a criminal investigation using grand jury subpoena authority.  There is rarely any delay in obtaining a grand jury subpoena.  DOJ should strive to ensure that Section 215 court orders are obtained in a timely and expedient manner.  Given the vital information that can be obtained through this authority, I have asked the Department of Justice to take whatever steps are necessary to minimize future delays.  As with roving wiretap authority, I believe Section 215 has adequate measures already built in to ensure that the privacy interests of U.S. persons are protected.  I have not heard any reasonable critique of this authority and believe it should be reauthorized, without any changes, and without delay. 

 

The sole expiring provision that has not been used by the FBI is the lone wolf definition of an agent of a foreign power, prompting some critics to demand its repeal.  Under this definition, the FBI can obtain a Foreign Intelligence Surveillance Act search or electronic surveillance order against a non-U.S. person who is not readily identifiable with a particular foreign power.      

 

We are all familiar with the story of Zacarias Moussaoui, the 9/11 coconspirator who was identified prior to the 9/11 attacks, but the FBI could not connect him with a particular terrorist organization; and, therefore, did not submit a formal request for a FISA search order.  Moussaoui was ultimately convicted in the Eastern District of Virginia and is now serving a life sentence for his part in the 9/11 conspiracy.  We now know that if FISA had included a lone wolf provision, the FBI could have searched Moussaoui’s belongings and possibly gained advance intelligence about the 9/11 plot. 

 

Director Mueller was emphatic in his recent testimony that the FBI must retain the ability to target an individual who cannot be specifically tied to a particular foreign power.  Director Mueller specifically cited the Moussaoui case as the prime example for retaining this authority.  We should never again take the risk that another Zacarias Moussaoui will be identified by the FBI but escape the level of scrutiny necessary to prevent an attack simply because he couldn’t be tied to a specific terrorist organization. 

 

I see the lone wolf provision as a necessary tool that will only need to be used in limited circumstances.  It’s kind of like those “in case of emergency break glass” boxes that cover certain fire alarms and equipment.  We need to keep this tool available for those rare situations when it will be needed by the Intelligence Community.

 

Senate Judiciary Bill 

As I mentioned earlier, the Senate Judiciary Committee reported a PATRIOT Act reauthorization bill that makes a number of changes to Section 215 authorities and other national security tools.  I believe that S. 1692, the Judiciary Committee’s bill, is deeply flawed and I cannot support it.  There will be ample time down the road to lay out in detail all of my objections to S. 1692, but let me just make a few key points. 

 

I disagree strongly that there should be a first-time-ever sunset for national security letters.  It is irresponsible to risk letting the law revert back to pre-9/11 status where NSLs were largely underutilized because the burden of proof and approval levels were too high for this basic investigative tool. 

 

The so-called “abuses” that are so often cited to support further restrictions were related to something called “exigent letters.”  Exigent letters are essentially a request to third-parties, usually phone companies or internet service providers, for immediate access to records contingent upon a promise to provide a grand jury subpoena or a national security letter in the very near future. 

 

It is important to understand that these exigent letters are not national security letters or grand jury subpoenas.  While there is statutory authority for carriers to voluntarily provide the FBI with the contents of a communication if the carrier has a good faith belief that an emergency involving death or serious physical injury requires disclosure of the communication without delay (See 18 U.S.C. 2702(b)(8)), the DOJ IG found that these exigent letter requests were issued on a routine, rather than an exigent, basis. 

Interestingly, the people relying on the now corrected exigent letter problem to justify their proposed restrictions on NSLs are not calling for similar restrictions to be placed on grand jury subpoenas.  They know better than to try that, because there would be immediate and overwhelming objections from the Department of Justice and nearly every United States Attorney in the country.  We cannot go back to the pre-9/11 days when national security investigative techniques were significantly more difficult to use than ordinary criminal investigative techniques. 

 

Setting aside the problems with these exigent letters, I have said time and again that the errors identified by the DOJ IG were almost exclusively administrative.  The FBI has acted quickly to correct those errors and we shouldn’t respond by hamstringing their investigations.   

 

I also disagree with requiring minimization procedures for both pen registers/trap and trace devices and NSLs.  The FBI has been clear about the operational harm that will likely result if minimization procedures are required for the type of preliminary data (such as telephone toll records) obtained by these tools. 

 

Aside from the basic problem of how the FBI would even go about minimizing this type of information, I just don’t see why it is necessary.  We certainly would never impose these types of restrictions on grand jury subpoenas or other types of administrative subpoenas. 

 

Supporters claim we need minimization procedures to protect U.S. persons, but they conveniently overlook the fact that the records we are talking about here are in the hands of third parties and are not entitled to the same Constitutional protections afforded when more intrusive techniques like electronic surveillance and physical searches are used by the Government.  In Smith v. Maryland, the Supreme Court held that we simply do not have a reasonable expectation of privacy with respect to these sorts of third-party records. 

 

Ironically, because the FBI cannot tell from the type of information obtained by these tools if someone is a U.S. person, they will actually will have to do more investigation—and be more intrusive—before figuring out whether information should be minimized. 

 

Finally, I have significant concerns about the change the Judiciary Committee bill makes to the notification period for sneak and peek search warrants—down from 30 to 7 days.  These warrants, which are approved by a court upon a finding of probable cause, are an important tool in drug and certain terrorism cases.  We know from the FBI—and I am sure if we asked the Drug Enforcement Administration, they would agree—that 7 days is not enough time before giving a target notice of a search.  In a terrorism investigation, likely involving many overseas associates and evidence, it is unreasonable to have to disclose the investigation within a week.

 

Depending on the type of information recovered from a search, testing and analysis may not even be done within 7 days.  Are we going to risk blowing these investigations because of a random conclusion that 30 days is too long?  I understand the government can ask for more time after the 7 days, but we do not have unlimited resources.  We should not make our law enforcement agencies jump through more hoops when a court has already found that a search is proper in the first place. 

 

I have other concerns about this bill, including the wisdom of a separate standard for library records, which I view as an even greater invitation for terrorists to use libraries to communicate with each other, and new reporting and auditing requirements.  I have to wonder what additional administrative burdens these requirements will put on the FBI at the same time they are trying to focus on preventing and disrupting further attacks on our nation. 

 

Because of the significant operational concerns raised by the Judiciary Committee’s bill, I believe that it should not be considered by the full Senate until the Intelligence Committee—as a whole—has had the opportunity to consider its implications for our national security, after hearing from Director Mueller about the impact of this entire bill on FBI operations. 

 

There are many issues about S. 1692, both classified and unclassified, that need to be addressed and the best venue in which to do that is within the Intelligence Committee.  Don’t forget that three of the five cross-over members from the Intelligence Committee voted against the Judiciary Committee bill.  I would hardly call that a ringing endorsement.  I believe that full consideration by all fifteen members of the Committee would greatly improve S. 1692.

 

Unfortunately, my efforts to give the Intelligence Committee the opportunity to weigh in as a Committee on the Judiciary Committee bill have thus far been unsuccessful.  At the same time, we cannot risk letting these crucial authorities lapse.  For this reason, I have no alternative but to cosponsor the legislation we have introduced today.  Unlike S. 1692, I can categorically state that our bill contains no provision that will have an adverse impact on Intelligence Community activities or operations.

 

It is not insignificant, in my opinion, that the bill we have introduced today is cosponsored by the Chairman of the Homeland Security Committee, the Ranking Member of the Judiciary Committee, and the Vice Chairman of the Intelligence Committee. 

 

Each one of these Committees has a role to play in safeguarding our domestic security.  Chairman Lieberman, Ranking Member Sessions, and I all understand that the stakes in failing to reauthorize the expiring provisions are high; the stakes in adding new and flawed provisions or creating unreasonable burdens are just as high.  It serves no legitimate purpose to give the FBI, or any other law enforcement or intelligence agency, tools that are rendered ineffective because Congress imposed arbitrary conditions without full appreciation of their ramifications.

 

The sponsorship of this legislation is also noteworthy because it sends the loud and clear message that giving our law enforcement and intelligence professionals the authorities and tools they need to keep this country safe is not, and should not, be a partisan issue. 

 

In the last Congress, we saw firsthand the negative impact of partisanship and pandering to extreme special interests.  The FISA Amendments Act was reported by a strong bipartisan margin out of the Senate Intelligence Committee.  Unfortunately, as the bill wound its way through the Senate and eventually the House, it became a political football.  As a result, we came too close for comfort to losing the intelligence collection authorities that we had worked hard as a Congress to preserve in the Protect America Act. 

 

I am hopeful that we can avoid allowing similar partisanship and political interests to take over what should be a straightforward legislative process.  The surest way of doing that is to reauthorize without change each of the three expiring PATRIOT Act provisions.

 

Conclusion 

For years, we have hammered away at the notion that there should be walls between criminal and national security investigations.  We have embraced the idea that the same tools that are used to capture drug dealers and child molesters should be available to track terrorists and spies.  While the idea has been generally accepted, the execution has been lacking.  Our laws still impose unnecessary divisions between administrative and grand jury subpoena authority and national security letters.  Those divisions are exacerbated by the Judiciary Committee’s bill which imposes new unheard of requirements on national security letters and FISA pen register/trap and trace information.  

 

Over the past eight years, Congress has placed heavy demands on the FBI to become a full and active participant in the Intelligence Community.  While the transformation has not been without some hiccups, they have come a long way since the days leading up to 9/11 when the word “FISA” was foreign to much of the rank and file FBI. 

 

Now is not the time to saddle them with unnecessary administrative burdens or to impose such conditions on the use of certain tools that they become useless.    With so many current and clear cut examples of domestic terrorist threats before our own eyes, I have to wonder why anyone thinks this is a good time to be experimenting with the vital authorities used to keep us safe.   

 

The legislation we have introduced today will ensure that our intelligence and law enforcement professionals can continue doing what they do best, without any additional restrictions.  Our nation has been fortunate to have not suffered a sequel to the 9/11 attacks—some may call it luck, much of the credit goes to the dedicated work of our intelligence and law enforcement professionals. 

 

We owe them our thanks.  We also owe them the recognition that their jobs are difficult as it is, and we should not be taking any steps that will make their profound responsibility to protect this country any more difficult.

 

I yield the floor.