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USA Patriot Act Debate

Congress remains divided over renewing sections of the controversial Patriot Act, a bill that allows access to personal records in terrorism cases but critics say infringes on civil liberties. Two senators discuss their differing views of the Patriot Act.

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    Signed by President Bush just weeks after the Sept. 11 attacks, the Patriot Act gave federal law enforcement officials expanded search and surveillance authority to help prevent future attacks.

    But Congress also tacked expiration dates onto 16 Patriot Act provisions, including ones governing electronic and Internet surveillance.

    Now, four years later, they're about to expire. The looming Dec. 31 deadline, and votes scheduled for tomorrow to extend the laws, have prompted a frenzied round of political jockeying.

    Attorney General Alberto Gonzales argued that the laws are still needed to fight terrorism.


    I would urge all members of Congress, Republican and Democrats, to support this bill, which if — when passed, I believe will be a win for the American people in that it will result in continued security for the United States and also continued protection of civil liberties for all Americans.


    While the House of Representatives is expected to approve extending the Patriot Act provisions, Democrats and a handful of Republicans in the Senate are trying to put on the brakes.

    New Hampshire's John Sununu wants to amend the laws before extending them. He specifically criticizes section 215, which allows the FBI to search "books, records, papers, documents, and other items for an investigation to obtain foreign intelligence."


    As a legal standard, that means that records could be subpoenaed that have no direct connection to a particular suspect. And as a result, the records of many innocent Americans, or the burdens placed on businesses to continually produce records under this provision, is going to be far too onerous.


    Sununu and Vermont Democrat Patrick Leahy have introduced a bill calling for a temporary, three-month renewal of the Patriot Act, allowing more negotiations.


    And we're joined by two members of the Senate who are on opposite sides in the Patriot Act debate: Republican Jeff Sessions of Alabama and Democrat Russ Feingold of Wisconsin.

    Sen. Feingold, are you trying to stop extension, ratification of this act and bring it down altogether or just make modifications in the act that is waiting to go forward?


    Of course I'm not trying to stop the renewal of the act. I've said this all along, even from the time four years ago when I voted against the original version.

    It's just that it has serious problems. There are provisions that allow the government to go after the library records of law-abiding citizens, extended sneak-and-peek searches of people's houses without notice that I think they should get under the Fourth Amendment.

    So, as Sen. Sununu just said in the clip on your program, we're just trying to fix this. And I assure you that there's no member of the Senate who does not want this renewed. We just want it fixed, and so that everybody in the country can feel that we're fighting terrorism but not going after law-abiding Americans.


    Well, at one point a settlement had been announced which indicated that they had reached agreement, House and Senate conferees, on extending some of the most problematic and most heavily debated parts of the Patriot Act rather than making them permanent. Why didn't that go forward?


    Well, this was an agreement basically between the Republican conferees. When this conference report came out, it was not signed by the Democratic members, and in fact they didn't feel they had been included.

    The sad thing is that all members of the Senate including my friend, Sen. Sessions here, we all voted for a version of this bill earlier this year that actually took care of these problems, so all we have to do here is accept the unanimous Senate version and we will all vote for it.


    Sen. Sessions, do you have none of the concerns that your colleague Sen. Feingold has about civil liberties and parts of the Patriot Act?


    Well, you know, I was a prosecutor for 15 years and I find some of the concerns here just so off base and so misconstruing the reality of law enforcement that it is shocking to me.

    Every district attorney in America can subpoena your library records; they can subpoena your telephone toll records. These are not records in your home. They're not records in your automobile or in your desk at your office where you have dominion over them.

    These are records belonging to some third party. This has been done since the founding of the republic. So I don't find anything in here that's extraordinary or outside the traditions of law enforcement.

    Electronic surveillance, the issue of subpoenas, the national security letters are all well within the traditions of law enforcement in America. They are absolutely crucial, however, to investigating terrorist cells where you need some secrecy here, some ability which you can do today really by asking a court to do so but in national security cases you go to the FISA court or to the national security letter and you can obtain this information without the entity notifying the terrorist group that you're investigating them.

    This can be a life-and-death matter. It can be done today but this act provides a mechanism to do it in a correct and appropriate way, so I'm really pleased about what it does. I think it's taken down the wall that has prohibited the sharing information. It's one of the reasons we've gone now four years without another attack on our homeland.


    Sen. Feingold, go ahead.


    Sen. Sununu wouldn't support this if what Sen. Sessions just said happened to be true. The difference here is what Sen. Sessions said. This isn't a secret court.

    When you have a situation where somebody can go after your library records under normal criminal proceeding there's a grand jury. You can challenge the order in the grand jury. You can talk about it to your lawyer.

    In this secret court, the Federal Intelligence Surveillance Court, you can't challenge it at all. You can't talk about it. A librarian can't tell anyone that this has been requested. And the most important thing, there is no requirement in this secret court of proof that there's a connection between these records and terrorism or espionage. In other words, it's a way to dodge the very protections that the Bill of Rights provides.


    Let me just respond in this way.


    Go ahead.


    Today a prosecutor can issue these subpoenas with no proof to any court whatsoever, but the Foreign Intelligence Surveillance Law creates a court that is supposed to review these things so they get prior approval.

    And they have to show facts that the evidence being sought is relevant to an investigation involving national security. That's far more — a far higher standard than we have today.


    Sen. Sessions, you're satisfied with the transparency of the process? There have been some complaints over the four years that you haven't been able to look at how the act has really operated since its passage so some of these questions about civil liberties, about sneak-and-peek have not been able to be fully debated because you don't know how it's been working so far.


    Well, that's a fair concern. But let me first say with regard to what Sen. Sessions said when a prosecutor issues a subpoena, a person defending the subject of it can ask that it be quashed. And they can talk to a lawyer about it. You can't do that in this secret court; it's a scary deal.


    Listen, these are subpoenas issued to a bank or a telephone company. They're not issued to the person to take his personal, private records.

    These are third-party records, and they can make objections. They can make objections in several different ways. They can move to quash and take other steps that would challenge this subpoena.

    As to the sneak-and-peek, those have been done and approved by the United States Supreme Court. That is an approved tactic. And in this set of circumstances, if you do a search warrant, it's not like a subpoena of someone's house. You have to state probable cause and file an affidavit with the judge that sets forth detailed facts before you can do a search.

    And all you're doing in a sneak-and-peek is just not notifying the person whose records are being examined or whose house is being searched immediately.

    So we had a provision, the House had a provision that you would have to be notified, go to court within 180 days if you — before you could continue to fail to notify the person who has been searched.

    But we've agreed now I think on seven days. And that is a big victory — or 30 days —


    That would be my point. You tell people back in Wisconsin that the government can come rummage around in your house for 30 days without giving you notice and we're supposed to accept that as normal? That's not normal.

    What is normal is the protection under the Fourth Amendment against unreasonable searches into your home and your person. And I'll tell you something. That's been the law of this country forever.

    The idea that there is some permission for sneak-and-peek searches is not something that we who oppose this bill dispute. We just think that if you're going to do it there ought to be a seven-day period and the judge can renew it indefinitely, so we're not trying to stop them; we just don't think a person should have a whole month where they get no notice unless the judge —


    A week, seven days. We came out with 30 days. That's what the compromise was on notice.

    There's nothing wrong with a properly sought and approved search warrant to delay notification of the person's search. Let me tell you — this can be life and death.

    You may want to find out, as we've done many times in America, that there's dope in a house. And you may want to substitute something in exchange for it.

    You may want to find out if these people actually have a bomb capable of killing hundreds of American citizens. That's why you do this with delayed notification and it gives a requirement. It sets forth a standard. And it is not any historic alteration of the great civil liberties that we have in America.


    Sen. Feingold, let me jump in there.


    Tell me, Sen. Feingold –


    It's different because you're saying it takes 30 days to figure out there's a bomb in somebody's house? It seems to me that you can do that within seven days. And if you need more time to figure that out, you can get another extension.

    The idea that the government can just roam around in your house when you're out of town for 30 days without getting any renewal after a week to me is a scary departure from the very freedoms that we've always fought for in this country.


    Seven days, thirty days – it's all —


    It matters in my state, seven to 30 days; I think it would matter in Alabama too.


    I think it could be very critical to the investigation.


    Sen. Sessions, is there some difficulty in harmonizing with the House version of this bill because the House has put into its version of the measure things that aren't directly concerned with terrorism — the search for missing and exploited children, prosecuting tobacco smuggling across interstate lines, busting meth labs and things of that kind?


    I think we've just pretty much agreed to go along with those provisions. And most of them are pretty good. No one has some real objection.

    I think the objections are down to what Sen. Feingold and I have been talking about — these civil liberties areas. I just disagree — I respect Sen. Feingold's commitment to civil liberties.

    Let me just say this: Arlen Specter, our committee chairman who has written a detailed letter going over each and every one of these, is a champion of civil liberties. And he and Sen. Feingold debated the issue today on the floor.

    Sen. Specter is not going to promote a bill he believes erodes historical principles of civil liberties, and neither would I. This bill does not do that. But it is a tremendous asset to investigators who are trying to protect American citizens from those who would do us harm. We cannot weaken it. And we need to reauthorize it.


    Well, Sen. Feingold, at several junctures in the last few minutes your colleague, Sen. Sessions, has brought up points at which time was of the essence in the course of a terrorist investigation.

    Is the principle you're defending so important that it's worth burdening investigators with the use of a little more time in order to run these requests for search and interrogation through judicial procedure?


    Judicial review is necessary in these kinds of circumstances. And of course we're not saying you couldn't have the seven-day period. It's just if they need more time, they have just got to come back and renew it. That's a seven-day period; it's not a few hours.

    And I'm puzzled by this because both Sen. Specter and Sen. Sessions voted for the Senate bill which included every one of the provisions and changes that I've described today. They already voted for every single thing I've advocated for.

    They voted for the seven-day period. They voted for the tougher provision in Section 215. So I don't really understand how upset they can be about it. They already voted for it.


    Well, the senator is correct. We voted for seven days. And he voted for seven days. It came out the Judiciary Committee eighteen to nothing. And the whole bill passed the Senate unanimously without objection.

    The House was at 180 days. And we agreed on 30 days. It's, frankly, not a big deal.


    We're close to the end of our time, senators. We're close to the end of our time.

    Sen. Feingold, are you prepared to filibuster this bill?


    We believe that there may be enough votes to prevent the obtaining of cloture, the cutting off debate on this bill.

    And our hope would be that if we're able to prevail on that vote, that the people in the Senate and the House would get together and come back to the Senate bill, which Sen. Sessions voted for and I voted for. It was a reachable compromise.

    We want to get this done by the end of the year. So, in that sense, trying to show enough votes that this one isn't going to make it through is what we're going to try to do.


    And, Sen. Sessions, do you think you can find enough Democrats to pull over to your side of the aisle to block a filibuster?


    I think so. This bill was unanimously reported out of the Senate. It had overwhelming House support; it was unanimously supported out of Judiciary Committee.

    There were only a few changes — a few that Sen. Feingold would disagree with. But nothing is perfect even from his perspective.

    And you have got to ask yourself: Has anything been changed in the bill that we passed unanimously that undermines liberties in America? I submit absolutely not. And I think the votes will be there to pass it.


    Gentlemen, thanks for joining us.


    Thank you.

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