[Congressional Record: May 24, 2011 (Senate)]
[Page S3247-S3262]
PATRIOT SUNSETS EXTENSION ACT OF 2011--Motion to Proceed
[...]
Mr. WYDEN. Would my colleague yield for a question?
Mr. UDALL of Colorado. Yes.
Mr. WYDEN. It seems to me the Senator has laid out the case for why
there needs to be a thoughtful debate about the PATRIOT Act and what is
necessary to strike the key balance between fighting terrorism
ferociously and protecting our liberties.
I am interested in what my colleague thinks about the proposition of
how you have a thoughtful debate on these issues, when there is secret
law where, in effect, the interpretation of the law, as it stands
today, is kept secret. So here we are, Senators on the floor, and we
have colleagues of both political parties wanting to participate.
Certainly, if you are an American, you are in Oregon or Colorado, you
are listening in, you want to be part of this discussion. But yet the
executive branch keeps secret how they are interpreting the law.
What is the Senator's sense about how we have a thoughtful debate if
that continues?
Mr. UDALL of Colorado. The Senator from Oregon has put his finger on
why it is so important to have a debate on the floor and not rush these
provisions to the House because of a deadline that I think we can push
back. We can, as you know, extend the PATRIOT Act in its present form a
number of other days or a number of weeks in order to get this right.
But the Senator from Oregon makes the powerful point that the law
should not be classified--as far as its interpretation goes. Of course,
we can protect sources and methods and operations, as we well should.
Both of us serve on the Intelligence Committee. We are privy to some
information that should be classified. But we have come to the floor to
make this case because of what we have learned on the Intelligence
Committee.
[...]
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, before my colleague leaves the Chamber, I
wished to tell him what a welcome addition he has been to the
Intelligence Committee. I have served on that committee for 10 years.
We have had excellent chairs--first, Senator Roberts, then Senator
Rockefeller, Senator Feinstein.
So we continue to try to look for bipartisan support for trying to
strike that balance between collective security and individual liberty.
I am struck both by the clarity of your statement and the fact that
those who are going to vote on these amendments and the American people
who are listening in tonight ought to be able to get, in a
straightforward, easy-to-access fashion, how the executive branch is
currently interpreting the PATRIOT Act.
The fact is, law professors give assignments to their students to
write analyses of the PATRIOT Act. The Congressional Research Service
actually has an analysis out. But it is not possible to get the
official interpretation of how the U.S. Government frames this law as
far as the operations are so essential for our country. The Senator has
laid it out very well. It is a pleasure to serve with him on the
Intelligence Committee.
Mr. President, let me sum up with what this issue has come down to,
to me.
These are dangerous times. If you go into the Intelligence Committee
several times a week, as Senator Udall and I do, you come away with the
indisputable judgment that there are threats to the well-being of this
country, that there are people who do not wish our citizens well. In
these dangerous times, the sources and methods of our antiterror
operations absolutely must be kept secret. That is fundamental to the
work of the intelligence community--keeping the sources and methods of
those who serve us so gallantly secret and ensuring that they are as
safe as possible.
But while we protect those sources and methods, the laws that
authorize them should not be kept secret from the American people. That
is what this is all about--whether the laws that authorize the
operations that are so essential, which have been passed by the
Congress--that their interpretation should be kept secret from the
American people. I call it ``secret law.'' I want to say to this body,
yes, we need secret operations, but secret law is bad for our
democracy. It will undermine the confidence the American people have in
our intelligence operations.
You might recall that it was only a few years ago, during the Bush
administration, that they secretly reinterpreted the warrantless
wiretapping statutes to say that it was possible to wiretap our people
without a warrant. When it came out, it took years to sort that out,
with the executive branch and the Congress working together. I don't
want to see that happen again. So that is why I have joined Senator
Udall in these amendments, and we hope we can get bipartisan support
for what we are trying to do and especially ensure that the official
interpretation of the PATRIOT Act, an important intelligent statute, is
made public to the American people, and I think it can be done in a way
without jeopardizing our sources and methods.
One of the reasons Senator Udall, I, and others feel so strongly
about this is--and Senator Udall touched on this--that this is a time
when Congress should finally say we are not just going to keep kicking
the can down the road. That is what has been done again and again over
the last decade. The PATRIOT Act was passed a decade ago, during a
period of understandable fear, having suffered in our Nation the
greatest terrorist attack in our history. So the PATRIOT Act was born
out of those great fears.
It seems to me that now is the time to revisit that and ensure that a
better job is done of striking the balance between fighting terror and
protecting individual liberty. Unfortunately, every time over the last
decade there has been an effort to do just that--revisit this and
strike a better balance--we have had the same pattern; we have said we
just have to get it done quickly and we really don't have any time to
consider, for example, the thoughtful ideas Senator Udall has
mentioned. I just don't think it is time now to once again put off a
real debate on the PATRIOT Act for yet another always-distant day.
There is an irony about what this is all about, and that is that
Senators are going to want to consider the amendments of Senator
Udall--and I believe Senator Paul is here, and others who care strongly
about this. It is awfully hard to have a thoughtful debate on these
specific amendments, whether it is the Leahy amendment, the Paul
amendment, the Udall amendment, or the ones we have together, if, in
fact, you cannot figure out how the executive branch is interpreting
the law.
An open and informed debate on the PATRIOT Act requires that we get
beyond the fact that the executive branch relies on the secret legal
interpretations to support their work, and Members of the Senate try to
figure out what those interpretations are.
Here are the rules. If a U.S. Senator wants to go to the Intelligence
Committee--and I think Senator Udall touched on this--the Senator can
go there and get a briefing. Many Members of Congress, however, don't
have staff members who are cleared for those kinds of briefings. Under
Senate rules, it is not possible for Senators to come down here and
discuss what they may have picked up in one of those classified
briefings.
I just don't think, with respect to the legal interpretation, that is
what the American people believe we ought to be doing. The American
people want secret operations protected. They understand what sources
and methods are all about and that we have to have secrecy, for
example, for those in the intelligence community to get the information
we need about sleeper cells and terrorist groups and threats we learn
about in the Intelligence Committee. But that is very different from
keeping these legal interpretations secret.
In my view, the current situation is simply unacceptable. The
American people recognize that their government can better protect
national security if it sometimes is allowed to operate in secrecy.
They certainly don't expect the executive branch to publish every
detail about how intelligence is collected. Certainly, Americans never
expected George Washington to tell them about his plans for observing
troop movement at Yorktown. But Americans have always expected their
government to operate within the boundaries of publicly understood law.
As voters, they certainly have a right to know how the law is being
interpreted so that the American people can ratify or reject decisions
made on their behalf. To put it another way, Americans know their
government will sometimes conduct secret operations, but they
[[Page S3260]]
don't believe the government ought to be writing secret law.
The reason we have felt so strongly about this issue of secret law is
that it violates the trust Americans place in their government and it
undermines public confidence in government agencies and institutions,
making it harder to operate effectively. I was on the Intelligence
Committee, before Senator Udall joined us, when Americans were pretty
much stunned to learn the Bush administration had been secretly
claiming for years that warrantless wiretapping was legal. My own view
was that disclosure significantly undermined the public trust in the
Department of Justice and our national intelligence agencies. Our
phones were ringing off the hook for days when the American people
learned about it. The Congress and executive branch had to retrench and
figure out how to sort it out.
I certainly believe the public will be surprised again when they
learn about some of the interpretations of the PATRIOT Act. Government
officials cannot hope to indefinitely prevent the American people from
learning the truth. This is going to come out, colleagues. It is going
to come out at some point, just as it came out during the Bush
administration about warrantless wiretapping. It is going to come out.
It is not going to be helpful to the kind of dialog we want to have
with the American people, an open and honest dialog, to just continue
this practice of secret law.
The reason I am offering or seeking to offer this amendment with
Senator Udall, Senator Merkley, and other colleagues with respect to
changing the practice of secret law is that we have raised this issue
numerous times--on the Senate floor, in correspondence, in meetings
with senior administration officials--and I have been joined in the
past by other Senators, and we talked about it with respect to the
problem in the news media. But the problem persists and the gap between
the public's understanding of the PATRIOT Act and the government's
secret interpretation of it remains today. Once information has been
labeled ``secret,'' there is a strong bureaucratic tendency--it almost
gets in the bureaucratic chromosomes to keep it secret and not revisit
the original decision.
So what Senator Udall and I and colleagues seek to do is correct this
problem. We seek to offer an amendment that states that it is entirely
appropriate for particular intelligence collection techniques to be
kept secret but that the laws that authorize these techniques should
not be kept secret and should instead be transparent to the public. We
seek to offer an amendment that states that U.S. Government officials
should not secretly reinterpret public laws and statutes in a manner
that is inconsistent with the public's understanding of these laws or
describe the execution of these laws in a way that misinforms or
misleads the public.
So under this proposal, the Attorney General and Director of National
Intelligence would--and we note this--provide a classified report to
the congressional intelligence committees. It makes it clear that
intelligence collection continues to go forward, and our amendment
would simply require the Attorney General to publicly lay out the legal
basis for the intelligence activities described in the report. The
amendment specifically directs the Attorney General not to describe
specific collection, programs, or activities, but simply to fully
describe the legal interpretations and analyses necessary to understand
the government's official interpretation of the law.
Let me close--I see colleagues waiting to speak--and say that we can
have honest and legitimate disagreements about exactly how broad
intelligence collection authorities ought to be, and members of the
public do not expect to know all of the details about how those
authorities are used, but I hope each Senator would agree that the law
itself should not be kept secret and that the government should always
be open and honest with the American people about what the law means.
All that Senator Udall and I seek to do, along with other colleagues,
is to restore some of that openness and honesty in an area where it is
now needed. I hope colleagues on the floor of the Senate and in the
Obama administration will join in that effort.
[...]
__________________________
[Congressional Record: May 24, 2011 (Senate)]
[Page S3281-S3286]
AMENDMENTS SUBMITTED AND PROPOSED
SA 339. Mr. WYDEN (for himself, Mr. Udall of Colorado, Mr. Merkley,
and Mr. Udall of New Mexico) submitted an amendment intended to be
proposed by him to the bill S. 1038, to extend the expiring provisions
of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the
Intelligence Reform and Terrorism Prevention Act of 2004 until June 1,
2015, and for other purposes; which was ordered to lie on the table; as
follows:
At the end, add the following:
SEC. 3. REPORT ON INTELLIGENCE COLLECTION ACTIVITIES.
(a) Sense of Congress.--It is the sense of Congress that--
(1) in democratic societies, citizens rightly expect that
their government will not arbitrarily keep information secret
from the public but instead will act with secrecy only in
certain limited circumstances;
(2) the United States Government has an inherent
responsibility to protect American citizens from foreign
threats and sometimes relies on clandestine methods to learn
information about foreign adversaries, and these intelligence
collection methods are often most effective when they remain
secret;
(3) American citizens recognize that their government may
rely on secret intelligence sources and collection methods to
ensure national security and public safety, and American
citizens also expect intelligence activities to be conducted
within the boundaries of publicly understood law;
(4) it is essential for the American public to have access
to enough information to determine how government officials
are interpreting the law, so that voters can ratify or reject
decisions that elected officials make on their behalf;
(5) it is essential that Congress have informed and open
debates about the meaning of existing laws, so that members
of Congress are able to consider whether laws are written
appropriately, and so that members of Congress may be held
accountable by their constituents;
(6) United States Government officials should not secretly
reinterpret public laws and statutes in a manner that is
inconsistent with the public's understanding of these laws,
and should not describe the execution of these laws in a way
that misinforms or misleads the public;
(7) On February 2, 2011, the congressional intelligence
committees received a secret report from the Attorney General
and the Director of National Intelligence that has been
publicly described as pertaining to intelligence collection
authorities that are subject to expiration under section 224
of the USA PATRIOT Act (Public Law 107-56; 115 Stat. 295);
and
(8) while it is entirely appropriate for particular
intelligence collection techniques to be kept secret, the
laws that authorize such techniques, and the United States
Government's official interpretation of these laws, should
not be kept secret but should instead be transparent to the
public, so that these laws can be the subject of informed
public debate and consideration.
(b) Report.--Not later than 60 days after the date of the
enactment of this Act, the Attorney General shall publish in
the Federal Register a report--
(1) that details the legal basis for the intelligence
collection activities described in the February 2, 2011,
report to the congressional intelligence committees; and
(2) that does not describe specific intelligence collection
programs or activities, but that fully describes the legal
interpretations and analysis necessary to understand the
United States Government's official interpretation of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.).
______
