Cloture Motion on PATRIOT Act Extension Bill Defeated in Senate

December 17, 2005. The Senate rejected a motion to invoke cloture on the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", by a vote of 52-47, on Friday, December 16, 2005.

Invoking cloture is the only method for terminating a filibuster. Pursuant to Senate Rule XXII, a cloture motion requires a three fifths majority for passage. See, Senate memorandum titled "Filibusters and Cloture in the Senate"

It was an almost straight party line vote. Republicans voted 50-4. Democrats voted 2-44. See, Roll Call No. 358.

The Republicans who voted against the motion were Sen. Larry Craig (R-ID), Sen. John Sununu (R-NH), Sen. Lisa Murkowski (R-AK), and Sen. Bill Frist (R-TN). However, Sen. Frist, the Senate Majority Leader, favored approval of the motion, but switched his vote to no at the last moment, to preserve his ability to bring a motion to reconsider.

The Democrats who voted for the motion were Sen. Tim Johnson (SD) and Sen. Ben Nelson (D-NE). Sen. Chris Dodd (D-CT) did not vote. TLJ categorizes Sen. Jim Jeffords (VT) as a Democrat.

The House approved the conference report on December 14, 2005, by a vote of 251-174. See, story "House Approves Conference Report on PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, December 15, 2005.

The 107th Congress enacted the PATRIOT Act quickly after the terrorist attacks of September 11, 2001. It was HR 3162. It became Public Law 107-56 on October 26, 2001. Much of Title II of the PATRIOT Act pertains to electronic surveillance affecting new technologies. § 224 of the PATRIOT Act provides that many of the provisions of Title II sunset at the end of 2005, unless extended. Both the House and Senate versions of the HR 3199 approved last summer permanently extended almost all of the sunsetted provisions.

16 sections of the PATRIOT Act are scheduled to expire on December 31, 2005, if not extended. The conference report on HR 3199 permanently extends 14 sections, provides for a limited sunsetting of two sections, and contains numerous amendments. It also contains much that is unrelated to extending the expiring provisions of the PATRIOT Act.

The conference report [219 pages in PDF] maintains a qualified four year sunset for § 206 (regarding roving surveillance authority under the Foreign Intelligence Surveillance Act, or FISA) and § 215 (which pertains to access to business records, including library records, under the FISA).

During debate in the Senate on December 16, Sen. Frist (at left) stated that "In the days following 9/11, we learned that the enemy had been able to elude law enforcement, in part because our agencies were not able to share key investigative information. Once we understood this awful reality, we swiftly took action. Within 6 weeks of the attacks on America, the Congress passed the USA PATRIOT Act with overwhelming bipartisan support. The Senate vote was near unanimous, with 98 Senators voting in favor. The PATRIOT Act went to work tearing down the information wall between agencies and allowed the intelligence community and law enforcement to work more closely in pursuit of terrorist suspects."

He continued that "Since then, it has been highly effective in tracking down terrorists and making our country safer. Because of the PATRIOT Act, the United States has charged over 400 suspected terrorists. More than half of them have already been convicted. Because of the PATRIOT Act, law enforcement has broken up terrorist cells all across the country, from New York to California, Oregon, Virginia, and Florida."

He argued that "The conference report to reauthorize the PATRIOT Act includes all of these provisions and goes further to strengthen and improve America's security. It enhances vital safeguards to protect our civil liberties and privacy, and it contains new provisions to combat terrorist financing and money laundering, to protect our mass transportation systems and railways from attacks such as the ones on the London subway last summer, secure our seaports, and fight methamphetamine drug abuse, America's No. 1 drug problem.

"The clock is ticking. We do need to take action now. In just 15 days", said Sen. Frist, the sunsets will take effect.

Senate Democrats criticized the conference report. Sen.Harry Reid (D-NV), the Senate Minority Leader, stated that "The final bill was written by Republican-only conferees working behind closed doors with Justice Department lawyers."

Sen. Reid (at right) stated that "I supported the passage of the original PATRIOT Act in 2001. This was enacted in the days immediately following the vicious attacks on September 11, 2001. I do not regret my vote. Much of the original act consisted of noncontroversial efforts to update and strengthen basic law enforcement authorities. More than 90 percent of the 2001 act is already part of permanent law and will not expire at the end of this year."

"We are currently considering renewal of these provisions that were considered so expansive and so vulnerable to abuse that Congress wisely decided to subject them to 4-year sunsets, meaning that after 4 years they had to be renewed or they would fall. The authors of the act wanted Congress to reassess these in a more deliberative manner with the benefit of experience."

He argued that "Now, more than 4 years later, we are presented with the opportunity to do it right. While the conference report before us makes certain improvements over the original PATRIOT Act, it still does not strike the right balance. We can provide the Government with the powers it needs to investigate potential terrorists and terrorist activity and at the same time protect the freedom of innocent Americans. Liberty and security are not contradictory. Additional congressional and judicial oversight of the Government's surveillance and investigative authorities need not hamper the Government's ability to fight terrorism."

Sen. Reid, citing the Washington Post, stated that "the FBI issues more than 30,000 national security letters a year -- 30,000.  These letters go to businesses." He discussed the widespread use of these to compel the Las Vegas casino industry business to give customer data to the Department of Homeland Security (DHS).

He continued that "I am disturbed the conference report provides neither meaningful judicial review nor a sunset provision for those provisions regarding national security letters. Instead of protections, this conference report effectively turns these NSLs, as they are referred to, national security letters, into administrative subpoenas. For the first time, the report authorizes the Government to seek a court order to compel compliance with one of these letters. Recipients who do not comply could be found in contempt, fined, or even sent to jail."

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, spoke after the vote on the cloture motion. See, statement. He said that "The sunset provisions -- the very reason we are having this debate and this re-evaluation of the PATRIOT Act -- are in there because Dick Armey and I fought for them and included them in the final bill."

He said that "Our goal has been to mend the PATRIOT Act, not to end it. The best solution is to just fix the bill. We can do that before we adjourn next week, if they’ll let us. I am ready at this moment, and as long as it takes, to work to make this a better bill, and a consensus bill."

Attorney General Alberto Gonzales (at left) released a statement after the vote. He wrote that "These provisions of the USA PATRIOT Act are essential to our efforts in the war on terrorism and their loss will damage our ability to prevent terrorist attacks. Our Nation cannot afford to let these important counterterrorism tools lapse. The House of Representatives has already acted, through a bipartisan vote that renewed the PATRIOT Act's sunsetted provisions while strengthening the Act's significant civil liberties protections. After 23 congressional hearings, testimony from more than 60 different witnesses, and months of deliberations, it is now time for the Senate to act. National security should not be compromised with procedural delaying tactics. The PATRIOT Act has clear bipartisan majority support, and the Senate should be allowed to vote up or down on the conference report. The American people deserve no less."

President Bush discussed the PATRIOT Act on Saturday, December 17, in his weekly radio address. He said that the Senate's failure to approve the cloture motion "is irresponsible, and it endangers the lives of our citizens".

He stated that "One of the first actions we took to protect America after our nation was attacked was to ask Congress to pass the Patriot Act. The Patriot Act tore down the legal and bureaucratic wall that kept law enforcement and intelligence authorities from sharing vital information about terrorist threats. And the Patriot Act allowed federal investigators to pursue terrorists with tools they already used against other criminals."

"Since then," said Bush, "America's law enforcement personnel have used this critical law to prosecute terrorist operatives and supporters, and to break up terrorist cells in New York, Oregon, Virginia, California, Texas and Ohio. The Patriot Act has accomplished exactly what it was designed to do: it has protected American liberty and saved American lives."

"Yet key provisions of this law are set to expire in two weeks. The terrorist threat to our country will not expire in two weeks. The terrorists want to attack America again, and inflict even greater damage than they did on September the 11th. Congress has a responsibility to ensure that law enforcement and intelligence officials have the tools they need to protect the American people."

He concluded, "Yet a minority of senators filibustered to block the renewal of the Patriot Act when it came up for a vote yesterday. That decision is irresponsible, and it endangers the lives of our citizens. The senators who are filibustering must stop their delaying tactics, and the Senate must vote to reauthorize the Patriot Act. In the war on terror, we cannot afford to be without this law for a single moment."