December 16, 2005

Statement of Senator Hillary Rodham Clinton on the USA Patriot Act Reauthorization Conference Report

In the wake of the September 11th terrorist attacks, this body came together – Republicans and Democrats alike – around the shared goal of preventing a similar tragedy from ever occurring again on our soil. Towards this end, Congress worked in a bipartisan manner to pass the provisions of the USA PATRIOT Act, legislation that expanded many of our laws, providing our government and law enforcement with the tools needed to ably combat these threats. We understood then, as we do now, that these tools are important in our fight against terrorism. And because there is no greater responsibility that we bear as members of this body than ensuring the safety of our citizens, I voted in favor of the USA PATRIOT Act in 2001 and supported its reauthorization when the Senate considered its bill earlier this year.

But even in the immediate aftermath of the September 11th tragedy, Congress recognized that in its haste to give law enforcement these expanded powers, there was a risk that this new authority was coming at the expense of constitutionally guaranteed rights and liberties. And so in the wisdom of both Republican and Democratic legislators, several provisions of the Patriot Act included four-year sunsets, allowing Congress the opportunity to revisit whether the Patriot Act strikes the proper balance between securing our safety and ensuring our freedom.

I have very serious concerns that the current Patriot Act Reauthorization conference report, which was negotiated largely without the input of Democrats, does not do enough to strike this proper balance. I believe that we can be both safe and free. The conference report falls well short of achieving that goal. I am hopeful that bipartisan negotiations can result in a compromise bill like the one agreed to in the Senate in July, a bill which did a far better job of protecting our civil liberties.

The current conference report fails in many respects.

Section 215 of the Patriot Act gives law enforcement in domestic intelligence investigations nearly limitless power to obtain all types of personal records, including business, library, and medical records. Under current law, the government merely needs to demonstrate that the records it seeks are “sought for” a terrorism investigation. Upon such a showing, a secret court is required to issue the order. This is an extremely lenient standard, one that for the first time gives the government almost unchecked access to the sensitive personal information of innocent Americans. To compound matters, the third parties – business, libraries, hospitals, and the like – who are recipients of these orders are subject to an automatic gag order. They cannot tell anyone that they have been asked for these records, including the person whose documents the government is seeking.

Given its broad scope, this provision has tremendous potential for abuse. Innocent Americans should not be subjected to these possible intrusions when adequate safeguards can be written into the law, ones that would not sacrifice the utility of these orders as a law enforcement tool. Americans should not have to hope that the government will demonstrate self-restraint in its exercise of this power, nor should they fear that their personal records will be part of a government fishing expedition.

The Senate bill, which I supported, not only required the government to meet a higher standard before issuing these orders, it also gave recipients of a FISA order an explicit and meaningful right to challenge these orders and their accompanying gag orders in court. The conference report sadly retains a variation of the current law’s exceptionally lenient standard of review, a standard that effectively turns the courts into little more than a rubber stamp. Further, the conference report does not give the recipient of a FISA order any express right at all to seek meaningful judicial review of its gag order. Quite simply, the conference report places inadequate checks on these orders.

Another failure of the conference report was exposed in an article appearing in the Sunday, November 6, 2005 edition of The Washington Post, which brought to light a very troubling practice by the FBI that underscores the importance of adopting proper safeguards.

National Security Letters (NSLs) are administrative subpoenas that allow the FBI to obtain sensitive information about ordinary Americans in national security cases. NSLs are issued by FBI agents without the authorization or approval of a judge, grand jury or prosecutor. While the FBI has long employed NSLs, the Patriot Act greatly expanded their scope, significantly lowering the standard for their issuance. The result has been, according to The Washington Post, a “hundredfold increase” in their use, with the FBI annually issuing thousands of NSLs demanding private information about ordinary Americans not necessarily suspected of any crime. These records include financial, library, credit card, telephone, internet service provider, and email records as well as customer transaction information. These NSLs are governed by strict gag orders that prevent companies from telling their customers that their records were given to the FBI.

As this description suggests, NSLs are very similar to Section 215 FISA orders, but with one very critical difference – NSLs do not require the government to get any court approval whatsoever. While NSLs can be an important tool in our fight against terrorism, their unfettered and unchecked use makes them susceptible to abuse that infringes upon the privacy of innocent people. The Senate version of the Patriot Act Reauthorization bill created important checks on the power to issue and enforce NSLs – protections absent from the conference report – without hindering the effectiveness of this law enforcement tool.

Other sections of the conference report give rise to additional concerns. The conference report would give law enforcement the free-wheeling power to impose roving “John Doe” wiretaps without the safeguards needed to protect innocent Americans from unnecessary surveillance, casting aside important checks on this power that were included in the Senate bill. The report would also give the FBI the right to enter and search a home or business without providing notice to the owner of the residence of business for a month or longer after the search. And the conference report contains a provision that seriously curtails the habeas corpus rights of prisoners to challenge their convictions in court. This provision was in neither the House nor Senate bills, and there has been practically no debate on the merits of this change.

Apart from the serious civil liberties concerns, perhaps the greatest shortcoming of the conference report is its failure to incorporate a threat and risk-based formula for the allocation of critical homeland security funds to our local communities, states, and first responders. This deficiency was emphasized just last week by the former 9/11 Commission, who issued a blistering indictment of our Homeland Security failures.

As I said earlier, I have long maintained that protecting the security of our citizens and our Homeland is the most important responsibility I bear as a U.S. Senator. To that end, I believe that to truly make America safe, we need to carefully allocate our Homeland Security resources. We need to make sure that the money gets to where it is needed, that our American cities and states living under the greatest threat receive the funding they need to protect themselves. Unfortunately, up until now, a substantial portion of our Homeland Security money has been allocated according to congressionally-mandated formulas that bear little relation to need and risk.

Our resources should be dedicated to addressing our most glaring weaknesses. During their negotiations, I encouraged my House and Senate colleagues considering the Patriot Act reauthorization bill to account for this reality in our Homeland Security funding. I have maintained – as the former 9/11 Commission reiterated in its report last week – that lawmakers should cease playing politics with the allocation of our limited resources by promoting distribution formulas that ignore risk and threat. The Commission’s report card was a condemnation of this Administration and the Congress, both of whom have demonstrated far too little urgency in enacting the reforms needed to properly secure our Homeland and fight the War on Terror.

The former 9/11 Commission sent a clear, discernable message to the entire nation last week – reform is needed at all levels of government. The failure to incorporate in the Patriot Act conference report a much-needed threat-based formula for the allocation of Homeland Security funds is a major shortcoming and needs to be corrected.

As I noted at the outset, apart from these concerns, the Patriot Act contains provisions that provide law enforcement with important tools in the War on Terror. Because we cannot afford to be without these tools, I am supporting bipartisan legislation that will extend the sunsetting provisions of the Patriot Act by three months. Just because we are coming up against the end of the year does not mean we should have to compromise the rights of law-abiding Americans. This extension will preserve the current state of the law on a temporary basis, giving those working on the bill the opportunity to craft a compromise that both safeguards our liberty and gives our law enforcement the capabilities they need to effectively combat and investigate terrorist threats. I am also hopeful that during this three-month extension, those working on the reauthorization bill will heed the call of the former 9/11 Commission and include provisions that mandate the distribution of Homeland Security funds on the basis of threat and risk.

While we all recognize the importance of equipping our law enforcement with the tools they need to effectively combat terrorism, we also must ensure that those tools are administered in a manner that does not unnecessarily restrict the freedom and liberty that are the hallmark of American life. Like all Americans, I am troubled by recent reports that the President signed an order in 2002 that authorized the National Security Agency to conduct domestic spying on U.S. citizens and foreign nationals in the United States, despite legal prohibitions against such activity. Likewise, I am disturbed by recent reports that the Department of Defense is maintaining a database in order to monitor the activity of peaceful anti-war groups. The balance between the urgent goal of combating terrorism and the safeguarding of our most fundamental constitutional freedoms is not always an easy one to draw. However, they are not incompatible and unbridled and unchecked executive power is not the answer.

I believe the conference report falls short of this goal, and I am hopeful that with more time, those negotiating these provisions will find the proper balance.


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