[Congressional Record: May 26, 2011 (Senate)]
[Page S3367-S3372]


	[Senate Colloquy on Secret Law}


  Mr. WYDEN. Mr. President, I ask unanimous consent that I be permitted
to engage in a colloquy between Senators Udall, Feinstein, and Merkley.
  The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
  Mr. WYDEN. Mr. President, I am going to talk for just a couple of
minutes about the issue of secret law that Senator Udall and I, as we
are both members of the Intelligence Committee, have been working on
for quite some time. Then I am going to yield to our friend, the
distinguished chairwoman of the Intelligence Committee, Senator
Feinstein, for a colloquy.
  What this issue is all about is this: I believe there are two PATRIOT
Acts in America. The first is the text of the law itself, and the
second is the government's secret interpretation of what they believe
the law means.
  As an example, several years ago Americans woke up to learn that the
Bush administration had been secretly claiming for years that
warrantless wiretapping was legal. This disclosure greatly undermined
the public's trust in the Department of Justice and our national
intelligence agencies, and it took Congress and the executive branch
years to sort out the situation.
  I believe the American people will also be extremely surprised when
they learn how the PATRIOT Act is secretly being interpreted, and I
believe one consequence will be an erosion of public confidence that
makes it more difficult for our critically important national
intelligence agencies to function effectively. As someone who served on
the Intelligence Committee for 10 years, sitting right next to Senator
Feinstein, I don't want to see that happen.
  Let me yield now to Senator Udall. He will also have brief remarks,
and any colleagues who want to speak, and then Senator Feinstein will
lead us in the discussion of how we will be moving forward. So I yield
to Senator Udall who has been an invaluable member on the Intelligence
Committee. He and I have worked on this since the day he joined our
committee, and I am so appreciative of his involvement.
  Mr. UDALL of Colorado. Mr. President, I thank the Senator from Oregon
for his kind words. I also wish to echo his remarks about the
leadership of the chairwoman of the Intelligence Committee and her
focus on keeping our country safe and our citizens protected.
  I also wish to make the point that, as my colleague from Oregon, I
also oppose reauthorization of the expiring provisions in the PATRIOT
Act without significant reforms. I believe it is critical that the
administration make public its interpretation of the PATRIOT Act so
Members of Congress and the public are not kept in the dark.
  Mrs. FEINSTEIN. Mr. President, I wish to thank both Senator Wyden and
Senator Udall for their comments. We did have a meeting last night. We
did discuss this thoroughly. The decision was that we would enter into
this colloquy, so I will begin it, if I may.
  These Senators and I, along with the junior Senator from Oregon, Mr.
Merkley, the Senator from Colorado, Mr. Mark Udall, and the Senator
from Rhode Island, Mr. Whitehouse met last night to discuss this
amendment, the legal interpretation of the Foreign Intelligence
Surveillance Act provisions and how these provisions are implemented.
  I very much appreciate the strong views Senator Wyden and Senator
Udall have in this area, and I believe they are raising a serious and
important point as to how exactly these authorities are carried out. I
believe we are also all in agreement that these are important
counterterrorism authorities and have contributed to the security of
our Nation.
  Mr. WYDEN. Mr. President, I have enormous respect for my special
friend from California, the distinguished chairwoman of the
Intelligence Committee. I have literally sat next to her for more than
a decade. We agree on virtually all of these issues, but this is an
area where we have had a difference of opinion.
  I have said I wouldn't support a long-term reauthorization of the
PATRIOT Act without significant reforms, particularly in this area. I
am especially troubled by the fact that the U.S. Government's official
interpretation of the PATRIOT Act is secret, and I believe a
significant gap has developed now between what the public thinks the
law says and what the government secretly claims it says. That is why I
and my colleagues from Oregon and Colorado and New Mexico have proposed
an amendment that would make these legal interpretations public.
  Mr. UDALL of Colorado. Mr. President, let me say once again, as does
my colleague from Oregon, I oppose reauthorization of the existing
provisions of the PATRIOT Act that we have been debating on the Senate
floor without significant reforms. I also have to say I believe it is
critical that the administration make public its interpretation of the
PATRIOT Act so Members of Congress and our public are not kept in the
dark. That is the important work we have in front of us, and we have a
real opportunity to accomplish those goals.
  Mrs. FEINSTEIN. Mr. President, if I may respond, I have agreed that
these are important issues and that the Intelligence Committee, which
is charged with carrying out oversight over the 16 various intelligence
agencies of what is called the intelligence community, should be
carried out forthrightly. I also believe the place to do it is in the
Intelligence Committee itself. I have said to these distinguished
Senators that it would be my intention to call together a hearing as
soon as we come back from the Memorial Day break with the intelligence
community agencies, the senior policymakers, and the Department of
Justice to make sure the committee is comfortable with the FISA
programs and to make changes if changes are needed. We will do that.
  So it would be my intention to have these hearings completed before
the committee considers the fiscal year 2012 intelligence authorization
bill so that any amendments to FISA can be considered at that time.
  The fact is, we do not usually have amendments to the intelligence
authorization bill, but I believe the majority leader will do his best
to secure a future commitment if such is needed for a vote on any
amendment. I have not agreed to support any amendment because at this
stage it is hypothetical, and we need to look very deeply into what
these Senators have said and pointed out last night with specificity
and get the response to it from the intelligence committee, have both
sides hear it, and then make a decision that is based not only on civil
liberties but also on the necessity to keep our country safe. I believe
we can do that.
  I am very appreciative of their agreement to enter this colloquy.
  Mr. WYDEN. Mr. President, I thank the distinguished chairwoman of the
Intelligence Committee for proposing this course of action for
addressing the secret law issue. Obviously, colleagues would like more
information on that, and they are going to be in a position to know
that the Intelligence Committee is going to be examining it closely. I
will just describe the next steps from there.
  Senator Udall and I have discussed this issue with Senator Reid.
Senator Reid indicated to the chairwoman and myself and Senator Udall
that we would have an opportunity through these hearings--and, of
course, any amendments to the bill would be discussed on the
intelligence authorization legislation, which is a matter that
obviously has to be classified--but if we were not satisfied, if we
were not satisfied through that process, we would have the ability to
offer an amendment such as our original one on the Senate floor.
  Of course, the chairwoman would still retain full rights to oppose
it, but we would make sure if this issue of secret law wasn't fixed and
there wasn't an improved process to make more transparent and more open
the interpretation of the law--not what are called sources and methods
which are so important to protect our people--we would have an
opportunity, if it wasn't corrected in the intelligence community, to
come to the floor.

[[Page S3370]]

  Senator Reid has just indicated to all of us that he would focus on
giving us a vote if we believed it was needed on another bill--not the
intelligence authorization--before September 30. So there is a plan to
actually get this fixed, and that is what is key.

  At this time I yield to the Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, as we begin to end this
important colloquy, I wish to acknowledge the leadership of Senator
Wyden on this important matter. I also wish to acknowledge the
involvement of the Senator from New Mexico, who is presiding at this
moment in time, and the Senator from Oregon, Mr. Merkley, and the
Senator from Rhode Island, Mr. Whitehouse, who has been very involved
in bringing this case to the attention of all of us. I wish to also
thank my good friend from California, the chairwoman of the committee.
She has shown a great willingness to work with everybody and to listen.
  I have to say I expect that once the committee examines this issue
more closely, I think many more of our colleagues will want to join us
in reforming the law in this area. I think this is important. I do
think we can find the right balance between protecting civil liberties
and protecting the health and welfare of the American citizens.
  Mr. WYDEN. Mr. President, let me just make one last comment. I also
wish to express my appreciation to Senator Merkley, who has been an
extraordinarily outspoken advocate of our civil liberties and our
privacy in striking a good balance between fighting terror and
protecting the rights of our people, and I have so appreciated his
leadership on this issue.
  Let me sum up. First, I am very grateful to our chairwoman and
pleased with this agreement. The chairwoman has indicated she believes
those of us who want to reform secret law have raised a serious and
important issue. Those are her words. We are grateful for that because
we obviously believe very strongly about it. The chairwoman has said we
will hold hearings promptly to examine the secret law issue, give
serious consideration to looking at reforms in the fiscal year 2012
intelligence authorization bill, and then, per our conversations with
the majority leader, if Senator Udall and I believed it had not been
corrected on the intelligence authorization bill, we would have the
right to offer--and certainly the chairwoman could oppose it--an
amendment on the floor of the Senate on an unrelated bill. Senator
Reid, to his great credit, in an effort to try to resolve this and move
it along, said to the three of us that he would be working to do that.
  Again, our thanks to the chairwoman and all of my colleagues on the
floor, including Senator Merkley, who is not a member of the committee
and knows an incredible amount about it and certainly showed that last
night in our discussions and was very helpful. I wish to yield to him.
  So with the cooperation the chairwoman has shown all of us who are
trying to change this and the efforts of Senator Reid to make sure if
we didn't work it out we could come back to the floor again, I withdraw
the Wyden-Udall amendment for the time being. It ought to be clear to
everybody in the Senate that we are going to continue to prosecute the
cause of making more open and accountable the way the government
interprets this law in making sure that the American people have the
confidence that the way it is being interpreted is in line with the
text of the legislation.
  I withdraw at this time the Wyden-Udall amendment, and I yield the
floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I am deeply appreciative of the dialogue
that has just taken place. It was William Pitt in England who commented
that the wind and the rain can enter my house, but the King cannot.
  It captured the spirit and understanding of the balance between
personal privacy, personal freedoms, and issues of the Crown regarding
maintenance of security. It was this foundation that came in for our
fourth amendment of our Constitution that lays out clear standards for
the protection of privacy and freedoms.
  So as we have wrestled with the standard set out in the PATRIOT Act,
a standard that says the government may have access to records that are
relevant to an investigation--now, that term is, on its face, quite
broad and expansive, quite a low standard, if you will. But what
happens when it is interpreted out of the sight of this Chamber, out of
the sight of the American people? That is the issue my colleague has
raised, and it is a very important issue.
  I applaud the chair of the Intelligence Committee for laying out a
process whereby we all can wrestle with this issue in an appropriate
venue and have a path for amendments in the committee or possibly here
on the floor of the Senate because I do think it is our constitutional
responsibility to make sure the fourth amendment of the Constitution is
protected, the privacy and freedoms of citizens are protected.
  I say thank you to the Senator from Colorado; my senior colleague,
who has led this effort from Oregon; my colleague from New Mexico, who
is the Acting President pro tempore; and the chairwoman from
California.
  Mrs. FEINSTEIN. Mr. President, I thank my colleagues very much. I
believe this concludes our colloquy.
  I thank the Acting President pro tempore, and we yield the floor.

[...]