One of the improvements Congress should make is to repair a constitutional infirmity in the current law. Three years ago, in Doe v. Mukasey, the U.S. Court of Appeals for the Second Circuit found that the nondisclosure provision of the statute authorizing issuance of national security letters was constitutionally defective. If we do not make a change, that constitutionally defective part of the national security letter provision would remain. As part of the comprehensive set of reforms in the bill reported favorably by the Judiciary Committee, I proposed a simple statutory fix that would enable the FBI to obtain the information it needs, while addressing the constitutional concerns. In fact, this proposal has never been controversial. In fact, during the last Congress, Senator Sessions and Senator Bond, the ranking Republicans on the Senate Judiciary and Intelligence Committees, cosponsored a bill incorporating the very legislative remedy I proposed. This is a straightforward matter that needs to be fixed. The underlying bill does not fix the problem; our amendment would. I trust Senators would not want to proceed to vote on an unconstitutional law, one that violates our fundamental charter as a nation and, of course, the liberty of all Americans. No one who claims to honor the Constitution should proceed in so cavalier a manner. If we are to restore the constitutional underpinning of the NSL authority, the Senate should adopt this needed improvement.…
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