JK's full Senate statement, from Congressional Record (LONG)

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THE PATRIOT ACT AND DEFENSE APPROPRIATIONS ACT -- (Senate - December 19, 2005)

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--- Mr. KERRY. Mr. President, I listened carefully, as others have, to the distinguished Senator from Arizona. I guess we certainly all agree with his last statement about dealing with the evil of terrorism. We are all united in that effort, and all of us are pledged to do so according to the resolution we passed in the aftermath of 9/11, giving the President extraordinary power and authority to respond to those attacks. We are united in our efforts to deal with terrorism.

What we are not evidently as united on is our efforts to protect the Constitution of the United States of America, to protect the rights of individual Americans. On that there is a division between the House and the Senate.

I remind my colleague from Arizona, I think it was a couple of hours ago when he was talking about this subject, that he talked about how we don't want to see the PATRIOT Act further degraded; in other words, somehow implying that if we go back to what we passed in the Senate unanimously, we would somehow be degrading the PATRIOT Act. We were admonished not to ``hide behind the filibuster,'' that somehow people are hiding behind the filibuster which is the same thing as voting against the PATRIOT Act.

With all due respect, I never heard a more absurd or insulting argument to the rules of the Senate and to the nature of the Senate. In the 21 years I have been here, I have seen Jesse Helms and countless others stand up on the other side, in the minority or otherwise, and employ the rules of the Senate which allow the Senate to take a little bit longer to consider issues. That is always what has

separated us from the House and, indeed, which has provided a measure of safety with respect to the legislation we pass for the country.

The fact is that what he has termed degrading the PATRIOT Act for many of us is protecting the PATRIOT Act, protecting the Constitution, protecting the country, protecting individual citizens. The fact is the Senate unanimously passed a PATRIOT Act that went over to the House with adequate, better protections for the citizens of our country.

Let me be more specific about that for a minute, if I may, and I didn't intend to speak about the PATRIOT Act. I intended to talk about this morass we find ourselves in with respect to the Defense appropriations bill and the Arctic National Wildlife Refuge, and I will talk about that in a minute. But I want to talk about the PATRIOT Act for a minute.

Every single one of us in the Senate joined together a few months ago--in July, I think, precisely--to unanimously allow the PATRIOT Act to be passed. We supported the PATRIOT Act, and we supported it because we know we need to give the President the tools to fight terror and it would be irresponsible not to do certain things in the current threat we face to respond appropriately. But we also have an obligation to protect the privacy rights of Americans.

Americans all across this country increasingly are concerned about medical records that find their way into the public sector, financial records that are lost, banking records that turn up in public, about the theft of identity, Social Security numbers that are stolen. The constant invasion on the privacy of Americans is something that ought to concern all of us, and there ought to be a balance as we fight terror.

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Sure, we all want to take the maximum steps possible in order to prevent another act of terrorism. Who here in their right mind isn't going to do what is reasonable to prevent another 9/11? This is almost an absurd argument. It is the traditional sort of let's create a wedge, drive a big wedge between the American people and pretend to the American people the argument is about something that it isn't, pretend to the American people that everybody from this line in the United States over doesn't care about the security of our country and pretend that the only people who do are over there. It is ridiculous on its face. It is an insult to the American people.

We ought to be doing everything in our power to guarantee we don't engage in those kinds of silly arguments, particularly when we are stuck here 5 days before Christmas Eve struggling over reasonableness and then we have a whole bunch of unreasonably, classically political wedge-driving issues.

If the same PATRIOT bill was on the floor today that we sent off the floor, every Senator would vote for it. But it is not, and we are being told that somehow we have to rush to judgment and give away rights a lot of people here think are important and worth fighting for because the House insists they have a couple of provisions that were not in our bill.

Look at those provisions. The fact is the 215 section the Senator from Arizona was talking about--here is what it allows. It allows the Government to obtain library, medical, gun records, and other sensitive personal information on a mere showing that those records are relevant to an authorized intelligence investigation. That is it. That is all it requires.

In the Senate bill, we passed an additional test.

We said it has to be relevant, but in addition to being relevant we specifically put in the word ``and.'' It has to be relevant, and one of the three following things has to be shown: It has to pertain to a foreign power or agent of a foreign power, it has to be relevant to the activities of a suspected agent of a foreign power, or it has to be pertinent to a particular effort that is taken against a foreign power. Those are the three tests which we added to the relevancy test. We did that specifically because we thought we ought to protect the rights of Americans.

The fact is that requiring it to be pertaining to an individual who is in contact with a foreign government is a specific test that requires either to go further than mere relevancy. It requires the Government to have a cause that is legitimate to be able to go in and invade those kinds of rights.

Every Member of the Senate decided that was a worthy test and, unfortunately, that test was dropped. So that small change will actually allow the potential invasion of the privacy of American citizens who may have no connection at all to a suspected terrorist or spy. We think that is an important restriction. That is what we are fighting about. We are not fighting about not having a PATRIOT Act; we are fighting about having the rights of Americans protected.

In addition, unlike the Senate bill, the conference report provides absolutely no mechanism for the recipient of a 215 order. In other words, if someone has received a 215 order and it is sent to them notifying them with respect to the request for that information, there is no way for them to challenge an automatic gag order on that particular requirement.

So the Foreign Intelligence Surveillance Act's court review is not sufficient. We do not think it provides adequate protection to an American. The court only has the power to review the underlying order; that is, to say whether the order was appropriately issued. They do not have the right to review whether that person has a right to challenge it, a right to speak about it. They do not have the power to make an individualized determination about whether there ought to be a gag order with respect to it. So the recipient of a 215 order is automatically silenced under any circumstances. How is that fair? How is that consistent with American democratic principles?

The conference report also does not provide judicial review of national security letters. The Senate bill did provide a judicial review. We believe judicial review is important. So what we are fighting for is not whether to have a PATRIOT Act; what we are fighting over is whether to have a PATRIOT Act that keeps faith with the Constitution that we all swore to uphold and with our interpretation of the legitimate limits of intrusion on the rights of Americans. That is what we are fighting for.

I would also mention that there are sneak-and-peek search warrants in the conference report. Unlike the Senate bill, the conference report does not include any protections against those warrants. So rather than requiring the Government to notify the target of those warrants within 7 days, as the Senate bill did, the conference report requires notification within 30 days. Now, that is a long time to go--even 7 days is a long time to go, but 30 days is a really long time to go before one is notified of a Government search.

Those are just a few of the problems.

Let us repeat--because again it is part of the game that is played--it is not a good game. A lot of folks on the other side of the aisle are trying to suggest, Well, America, there are a bunch of folks who are strong on defense and people who are weak; there are a bunch of folks who want to protect the Constitution and those who do not.

Let me say something. This is not about that. If it were, we would have passed the 3-month extension of the PATRIOT Act right away. On several different occasions, Senator Reid has asked the Senate to proceed. We do not have to waste 1 day, not 1 hour, not 1 minute without a PATRIOT Act. We could extend the PATRIOT Act for 3 months right away, do it this afternoon, this evening, and then we could actually sit down and work out the differences in a reasonable way so that we provide the protections which people think are worth fighting for.

So this whole debate is just part of a larger breakdown in the Senate. The shame of what is happening with the Defense appropriations bill is that this entire debate is unnecessary, and it is also inappropriate. The fact is that the Arctic Wildlife Refuge drilling was put on the budget bill by breaking the budget rules. Everybody here knows that. The budget rules were changed so that drilling could be put on the bill because they were unable to muster enough votes to do it under the normal procedures of the Senate.

Then some courageous Republicans in the House stood up and said: This is wrong; we are not going to go along with this. All of a sudden, the first breaking-of-the-rules route was found to be unacceptable. So what is the response? To accept the rules of the Congress, to go along

with the will of the Congress? Oh, no, not that. We have to go find another way to break the rules. We have to go find another way to reinterpret it. So when the Parliamentarian rules that something is not legitimately within the scope of the bill, as the rules of the Senate say it ought to be, they are going to go ahead and try to vote and say: Oh, yes, it is, we overrule the Chair, change the rules. If one does not like the rules the way they are, they change them. How many kids in American schools are taught that is the way to play? How many families teach their kids in America that what one does is break the rules if they do not like them? How many institutions in this country would get along if that is the way it is played?

The example we set is bigger than what happens on this floor or what happens to Alaska and to the oil drilling. The fact is that what is happening is, make no mistake about it, right on the Senate floor, Republicans are putting oil companies ahead of troops. They are putting oil companies ahead of the Defense bill. They are trying to hold a whole bunch of Senators hostage to the very arguments we are hearing about whether one is for defense or against defense.

My colleague, Senator Lieberman, who earlier joined us at a press conference, made it very clear there is nobody with a stronger defense record in the Senate, but he is not going to stand up and be pushed around that way and be put in a corner that suggests that he does not stand for defense, and nor should any other Senator. This is wrong. It is wrong for the Senate. It is wrong for the country. It is the wrong example.

The fact is that this Defense bill could have been passed months ago.

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But who held it up? Do my colleagues know what held it up? What held it up was a President and a Vice President of the United States who were lobbying for torture. For months, they wanted to have the right to be able to finesse the rules and say that torture is permitted under certain circumstances. It took a Republican Senator, Mr. McCain, to stand up and say that is wrong, that is not in the interest of our troops, and that is not in the interest of our country. So the Defense bill was held up for almost 3 months because folks on the other side thought we ought to torture. Now here we are holding it up because they have attached to it drilling in the Arctic Wildlife Refuge.
I will state what the Military Officers Association thinks of that: There is a possibility that negotiators might try to include a provision allowing oil drilling in the Alaska National Wildlife Refuge in the bill. We are concerned--that is, the Military Officers Association of America is concerned that insertion of any divisive nondefense-related issues at the last minute could further delay enactment of this crucial legislation. Both defense bills are urgently needed to support our military efforts. Congress is already 3 months late passing them and needs to get off the dime.

We do need to get off the dime, but it is not just the Military Officers Association that has weighed in. Yesterday, a group of five high-profile military officials sent the following letter to the Senate, which I ask unanimous consent to have printed in the RECORD.

There being no objection, the material was ordered to be printed in the Record, as follows:


DEAR SENATOR FRIST AND SENATOR REID: We are very concerned that the FY2006 Defense Appropriations Bill may be further delayed by attaching a controversial non-defense legislative provision to the defense appropriations conference report.

We know that you share our overarching concern for the welfare and needs of our troops. With 160,000 troops fighting in Iraq, another 18,000 in Aghanistan, and tens of thousands more around the world defending this country, Congress must finish its work and provide them the resources they need to do their job.

We believe that any effort to attach controversial legislative language authorizing drilling in the Arctic National Wildlife Refuge (ANWR) to the defense appropriations conference report will jeopardize Congress' ability to provide our troops and their families the resources they need in a timely fashion.

The passion and energy of the debate about drilling in ANWR is well known, and a testament to vibrant debate in our democracy. But it is not helpful to attach such a controversial non-defense legislative issue to a defense appropriations bill. It only invites delay for our troops as Congress debates an important but controversial non-defense issue on a vital bill providing critical funding for our nation's security.

We urge you to keep ANWR off the defense appropriations bill.

Sincerely,


Joseph P. Hoar,
General, U.S. Marine Corps (Ret.).

Claudia J. Kennedy,
Lieutenant General, U.S. Army (Ret.).


Anthony C. Zinni,
General, U.S. Marine Corps (Ret.).


Lee F. Gunn,
Vice Admiral, U.S. Navy (Ret.).


Stephen A. Cheney,
Brigadier General, U.S. Marine Corps (Ret.)

Mr. KERRY. Mr. President, we have debated for years, all the years that I have been here, the Arctic Wildlife Refuge. It is stunning that an issue as controversial, as divisive as that would be put on a bill that needs to pass by unanimous consent. I know Senator Stevens and others have said we have had bills on which we have put a number of different items, such as the omnibus bill back in the days of President Clinton where we put seven or eight items on it--I forget exactly how many. But the difference is we did it with unanimity. We did not have a divided Senate over that issue. We did not have a vote. We all agreed all of those items ought to go into the bill.

What is different here is the disagreement, is the division over this issue. The fact is, many of us are very passionate about this issue, so much so that the Senate has been divided by one vote. A one-vote division is being disrespected in this effort because they know the rules of the Senate would prohibit them from doing it without changing and breaking those rules.

The fact is, ANWR, the Arctic National Wildlife Refuge, according to any definition I have ever seen, ceases to be a refuge. All the efforts to gloss over it do exactly that, they simply gloss over it. The fact is, we have heard arguments that you can somehow drill in the Arctic National Wildlife Refuge in an environmentally friendly manner. We have heard that drilling in the refuge is going to reduce our dependence on foreign oil. We have heard it is going to bring down gas prices at the pump. We have even heard that it belongs in the national budget because of the revenues that are going to come from the lease sales.

Every single one of those arguments fails before legitimate, honest scrutiny. First of all, by definition, an industrial zone and a wilderness cannot occupy the same space--can't do it. You can't have a wilderness and have an industrial zone. So the minute you declare ``industrial zone,'' gone is the wilderness. What has been set aside all these years since President Eisenhower, is eradicated, gone--gone for all time.

In 1960, the Eisenhower administration first recognized the value of that area, and it was established to be a unique wildlife and landscape. Drilling proponents keep claiming we are only going to drill on 2,000 acres--the oil corporations. But the fact is, when you look at the plans and you examine how they go at it, in fact, the entire 1.5 million acres, the 102 area is going to be open to testing, to leasing, and exploration, and it does not happen in one compact area. That is because, as with the North Slope oilfields west of the Arctic refuge, you have the development sprawling over a very large area stretching across the Coastal Plain.

According to the U.S. Geological Survey, the potential oil under the Coastal Plain is not concentrated in one large reservoir. It is put in many small deposits all across the plain. So to produce oil from this vast area, you have to create a network of pipelines and a network of roads, and all of those change the habitat of the entire Coastal Plain.

I will acknowledge that new drilling technology is more efficient, and we have done wonders in many ways. It is less harmful to the environment. But the advantages with respect to this particular area have been greatly exaggerated. Even the new technology, such as directional drilling, does irrevocable damage. You have to have permanent gravel roads. You have to have busy airports for access. You have production wells that are scattered throughout the area, across more than a million acres of Coastal Plain, and you are going to have the connection of pipelines. And the entire complex is going to produce more air pollution than the city of Washington, DC.

No matter how well it is done, oil development has a lasting impact on the environment. The industry itself has told us that. None other than British Petroleum said, ``We can't develop fields and keep wilderness.'' That is the oil company speaking for itself.

If the facts and the frank admission of an oil company are not enough, then people ought to take a look at what the National Academy of Sciences said, and the Department of Interior, and a host of others who have come to the same conclusion.

We also hear about the dependence on foreign oil. If the Arctic Wildlife Refuge produces the maximum amount of oil they say it might be able to produce, if 20 years from now it is at maximum pumping--which does nothing, obviously, to affect prices and supply today--it is possible that at best you could reduce oil imports from 62 percent to 60 percent. That is it--62 percent to 60 percent. It is not enough to affect the price of oil. It will not affect the global supply. It will not affect our dependence on the Middle East. But it will destroy the Arctic National Wildlife Refuge and provide some profits to the companies that take it out in the meantime.

So everybody ought to understand that in its peak year for a single year, somewhere around 2020, drilling might reduce your dependency by about 2 percent. The price of oil will not drop, the price of energy will not drop, the price of gasoline will not drop, and our vulnerability to world oil prices and to world unrest and to dangerous regimes will not change. After that single year,

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the flow of oil from the refuge is going to start to decline as the reserves are depleted.
Also, this is a phony argument that we need to somehow be doing this now. It has nothing to do with the immediate security of our country. The fact is, 95 percent of the Alaska oil shelf is open for drilling/leasing today--95 percent of it. There are vast areas of that shelf that are open that are still not leased, still not producing. In addition, we have the largest oilfield in the world that is unexploited, which is in the Gulf of Mexico, the deepwater drilling of the Gulf of Mexico. Those leases have already been granted. They have already been environmentally permitted, but they are not being drilled. Why? Because the price differential thus far has not brought people to do that.

If we want to do something for immediate American help, provide a subsidy, provide some assistance, do something that provides an incentive so that drilling takes place now. That would have far more effect than what is happening in this Alaska argument.

The bottom line: I said it again and again everywhere I went over the course of the last 2 years during the Presidential race. Every time I had a chance, I talked about how we only have 3 percent of the world's oil reserves. That is all we have in America--3 percent. The Saudis have 46 percent. The Middle East has 65 percent. There is absolutely nothing the United States of America can do to drill our way out of our predicament--our dependence on oil. We have to invent our way out of it, and inventing our way out of it means moving to alternative fuels, means pushing the curve of discovery, doing what America has always done in terms of creation of new jobs and new technologies. That is why it is a phony argument. That is the bottom line of why we don't have to be here pushing to do this on a defense bill which is important to our troops and to our country.

My hope is that in the next hours perhaps we can get a measure of reasonableness. But the bottom line still remains the same. There are people who believe deeply in drilling. I understand that. I respect that, and they can talk about that belief. That it not what this vote is about.

What this vote is about, in the end, is whether this effort to open the Arctic National Wildlife Refuge ought to be allowed to circumvent the rules of the Senate and whether this is the message we want to send about the rules and how the Senate works; that nothing means anything around here as long as you can change it whenever you want.

We have to remember that what goes around comes around. I don't think it is good for the Senate. I don't think this is good for this institution. I don't think it is good for a majority or a minority, one of which may be the other any day in the future, and regret this kind of this kind of effort.

When we stand up for the rules, we stand up for history, we stand up for the Constitution, and we stand up for what this Constitution gives to us as an individual responsibility--each and every one of us. And when we break the rules, we send a damaging, dangerous message to the rest of our country that looks to this place--ostensibly used to look here anyway--for leadership.

When you read the polls today about where the Congress is and the esteem of the American people, you ought to think twice about whether this is the way to proceed.

I yield the floor.