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Udall Says he will Oppose PATRIOT Act Extension

May 24, 2011

Udall Says he will Oppose PATRIOT Act Extension as Senate Leaders Refuse to Allow Critical Changes

Udall Wants Amendments to Improve Law, Ensure Constitutional Freedoms are Protected


Today, Mark Udall objected to a move by the Senate’s leadership to shut down debate on the PATRIOT Act, saying he will vote against the proposed four-year reauthorization of the most controversial sections of the PATRIOT Act later this week unless leaders allow amendments that would ensure the law isn’t being abused by the government.

The PATRIOT Act consists of 16 provisions, 14 of which are permanent. Congress is currently considering an extension of the two remaining provisions as well as an additional related law. The three provisions give the government wide-ranging authority to demand private documents and conduct wiretaps.

A member of the Senate Armed Services and Intelligence committees, Udall has made it clear that while he supports the PATRIOT Act, he wants to offer amendments that will improve the law. Udall had authored three amendments – and co-sponsored a fourth by Senator Ron Wyden of Oregon – that would hold the government accountable without limiting in any way the ability to conduct surveillance and keep Americans safe. Udall has argued that allowing debate would not affect any ongoing investigations, and he underscored that point earlier today in a press conference and a speech on the Senate floor immediately afterward.

Senate Majority Leader Harry Reid made the amendments impossible in a procedural move this evening, which Udall opposed.

“Many Americans have been demanding reforms to these provisions for years. We’ve known for months – years, in fact – that this was on our to-do list this Congress. We’ve been passing short-term extensions in order to give us time to consider a comprehensive overhaul,” Udall said. “Yet we’re now being pushed to approve a four-year straight reauthorization in just a few days. Trust me, we have time and should take that time for a full debate.”

“The PATRIOT Act has kept us safer since 9/11 – but it also allows the government unfettered access to private citizens’ personal information without enough checks and balances,” Udall continued. “Coloradans elected me to fight to protect their privacy and their liberty. Without changes, I cannot support reauthorizing these provisions.”

Udalls amendments include:

S.Amdt.331, Udall-Wyden-Merkley Sec. 215 Business Records This amendment would require the FBI to show a nexus to terrorism when seeking a court order requesting access to business records. This is currently not a requirement, meaning the government may demand access to business records ranging from a cell phone company’s phone records to an individual’s library history.

S.Amdt.332, Udall-Paul-Wyden Sec. 206 Roving Wiretaps This amendment would eliminate the ability of the government to conduct “roving wiretaps” without identifying the person or the phone to be wiretapped. The amendment would also require government agents to ascertain the presence of the target of a roving wiretap before beginning surveillance of a particular phone or email, using the same standard that is already required for criminal roving taps. This would protect innocent Americans from unnecessary surveillance.

S.Amdt.330, Udall-Wyden-Merkley Lone Wolf This amendment would require Congress to be notified before the government begins surveillance of a so-called “lone wolf” – an individual who is not connected to a terrorist group or a foreign government. Currently, such surveillance is allowed without notice.

In addition, Senator Udall co-sponsored a fourth amendment, by Senator Ron Wyden of Oregon, which would require the administration to make public how it is interpreting the various provisions of the PATRIOT Act.

The following are Senator Udalls remarks as prepared for delivery:

Mr. President, I rise today to speak in opposition to the proposed reauthorization of the expiring provisions of the PATRIOT Act incorporated in S.1038. I find reauthorization especially troubling since we have waited until the last minute and are now being told that we must rush this bill through.

While a number of PATRIOT Act provisions are permanent and remain in place to give our intelligence community important tools to fight terrorism, the three controversial provisions we are debating – commonly known as roving wire-tap, lone wolf and business records – are ripe for abuse and threaten Americans’ constitutional freedoms.

At the onset of my remarks, I want to state that I firmly believe that terrorism is a serious threat to the United States…and we must be focused like a laser in seeking to protect the American people. With my seats on the Senate Armed Services Committee and the Senate Intelligence Committee, much of my attention is centered on keeping Americans safe, both here and abroad. I recognize that despite Osama bin Laden’s death, we still live in a world where terrorism is a serious threat to our country, our economy, and to American lives. Our government does need the appropriate surveillance and anti-terrorism tools to achieve these important goals.

Indeed, many of the PATRIOT Act’s provisions – which I support – have made our nation safer since the devastating terrorist attacks on that day we’ll always remember, 9/11. We know that for a fact. But the problem we confront today is that the three provisions we are debating fail to strike the right balance between keeping us safe while protecting the privacy rights of Coloradans and all Americans. Instead, these three provisions are far too susceptible to abuse by the federal government, even in the name of keeping us safe from terrorism. I don’t say this lightly. But my concerns about some of these provisions have only grown since I have been briefed on their interpretation and implementation as a member of the Intelligence Committee.

For example, currently, the intelligence community can (1) place wide-ranging wiretaps on Americans without even identifying the target or location of such surveillance, (2) target individuals who have no connection to terrorist organizations, and (3) collect business records on law-abiding Americans, without any connection to terrorism. We ought to be able to at least agree that the source of an investigation under PATRIOT Act powers should have a terrorist-related focus. If we can’t limit investigations to terrorism, where do they end? Is there no amount of information that our government can collect that should be off limits? I know Coloradans are demanding that we at least place common-sense limits on government investigations and link data collection to terrorist-related activities.

If Congress passes this bill to extend the PATRIOT Act until 2015, it would mean that for four more years, the federal government will continue to have unrestrained access to private information about Americans who have no connection to terrorism – with little to no accountability about how these powers are used. Again, we all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands.

These three controversial provisions can be much better balanced to protect the American people – yet many of my colleagues oppose any changes and even want to make them permanent in order to prevent debate on them ever again. To continue down that path would be to threaten the constitutional and civil liberties that we hold dear in this country. That’s not the right path.

Let me be clear:  I do not oppose the reauthorization of these three provisions of the PATRIOT Act, but I do aim to bring forward some common-sense reforms that will allow us to strike an important balance between keeping our nation safe while also protecting privacy and civil liberties.

Toward that goal, I have worked side-by-side with my colleagues in coming up with common sense fixes that could receive bipartisan support. For example, Senator Wyden from Oregon has filed an amendment, which I have cosponsored, that would require that the Department of Justice disclose to Congress the official legal interpretation of the provisions of the PATRIOT Act. While I believe that our intelligence practices should be kept secret, I do not believe that the government’s official interpretation of these laws should be kept secret.

I have also filed my own amendments to address some of the problems I see with the three expiring provisions.

The first amendment I have filed is bipartisan, with Senator Paul of Kentucky and Senator Wyden as cosponsors. Our amendment would modify the “roving wiretap” authority under Section 206 of the PATRIOT Act. Specifically, our bipartisan amendment would require intelligence agencies to identify either the target or the place to be wiretapped – they currently do not have to. I believe that when seeking to collect intelligence, law enforcement should at least have to identify who is being targeted.

I have also filed an amendment to address the so called “lone wolf” provision which currently allows the government to conduct wiretap surveillance on individuals even when that person has no connection to a government or terrorist organization. My amendment would simply require that should the intelligence community use the “lone-wolf” provision, that Congress simply be notified – again, a safeguard that is not in place. Without safeguards like that, how can we in this body conduct our constitutional duties of oversight?

Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of “business record” materials that can be collected under Section 215 of the PATRIOT Act. This amendment would still allow law enforcement agencies to use the PATRIOT Act to obtain such records, but would require those entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Law enforcement currently can obtain any kind of records. In fact, the PATRIOT Act’s only limitation states that such information has to be related to “any tangible thing.” That’s right – as long as these business records are related to “any tangible thing,” the U.S. government can require businesses to turn over information on all of their customers, whether or not there is any link to terrorism. I don’t think it’s unreasonable to ask our law enforcement agencies to identify a terrorism investigation before seizing the private information of law-abiding American citizens.

These amendments represent but a few of the reform ideas that could be debated. But without further debate on these issues, this or any other administration can abuse the PATRIOT Act and deprive Congress of an opportunity to actually fulfill our oversight responsibilities on behalf of the American people.

Mr. President, I voted against the original passage of the PATRIOT Act in 2001… and plan to vote against the reauthorization of these expiring three provisions this week, unless we implement some reforms that will sensibly restrain these overbroad provisions. Simply put, I believe Congress is granting powers to the executive branch that lead to abuse, and frankly shield the Executive Branch from accountability. In the nearly ten years since Congress passed the PATRIOT Act, there has been very little opportunity to improve this law. And I cannot believe that we are once again being rushed into rubber-stamp policies that threaten the liberty of the American people.

I recently supported short-term extensions of the expiring provisions before us as a bridge to take time and debate and amend the PATRIOT Act and its controversial provisions. Unfortunately, we were notified just a few days ago that we would be voting on a four-year extension of these expiring provisions. This is not the way to ensure Americans that we are diligently considering these important public decisions.

In Federalist 51, James Madison stated, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The bill that is before us today does not live up to that standard, and I believe it seriously risks the constitutional freedoms of our people.

We need to strike a better balance between giving our national security and law enforcement officials the tools necessary to keep us safe, while not damaging the very Constitution we have sworn to support and defend. By passing an un-amended reauthorization we are ensuring that Americans will live with the status quo for four more long years. I believe this bill is a lost opportunity to improve the balance between our security and our civil liberties. That’s not a result that our founding fathers envisioned – and it’s not a result that our constituents want.

For these reasons, if the PATRIOT Act provisions are not amended, I plan to vote NO on the motion to invoke cloture and on passage of S.1038. I yield the floor.

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