[Congressional Record Volume 160, Number 141 (Tuesday, November 18, 2014)]
[Senate]
[Pages S6027-S6029]
FISA
Mr. McCONNELL. Mr. President, the recent beheading of U.S. citizen
Peter Kassig was the latest reminder of the brutal tactics employed by
ISIL, a murderous terrorist organization and insurgency that slaughters
the innocent and routinely employs suicide bombers and IEDs in its
campaign of terror.
The Islamic State of Iraq and the Levant slaughtered Sunni tribe
members in Anbar Province, executed prisoners, and captured key terrain
in cities such as Mosul.
[[Page S6028]]
Americans know ISIL is lethal, but it is also versatile. It has
associates and sympathizers in countries across the West, some self-
radicalized on the Internet, including not only in Europe and Canada
but right here in the United States. The ISIL fighting force continues
to grow more numerous--now numbering at least 20,000 strong--with its
success on the battlefield having drawn more extremists to the fight
from many of the same places, including, again, right here in America.
At its core, ISIL includes many seasoned veterans who once fought
under the banner of Al Qaeda in Iraq and either survived the U.S.
military detention or el uded our military altogether during the years
of Operation Iraqi Freedom. Many of these fighters are familiar with
America's intelligence capabilities, and many are savvy with
communications. These are terrorists who know how to use encryption,
and they know how to change devices frequently. That is part of the
reason I am strongly opposed to legislation offered by the chairman of
the Judiciary Committee that would end one of the Nation's critical
capabilities to gather significant intelligence on terrorist threats.
This is the worst possible time to be tying our hands behind our backs.
The threat from ISIL is real. It is different from what we faced
before. If we are going to overcome it, if our aim is to degrade and
destroy ISIL, as the President has said, then it is going to require
smart policies and firm determination. At a minimum, we should not be
doing anything to make the situation worse. Yet that is what this bill
would do.
Most damagingly, it would hinder the ability of intelligence
community analysts to query a database to determine links between
potential terrorists. Instead, the Leahy bill would have this data be
held by telephone companies. It would make it far harder for records to
be gathered for a specific selection term. Under the Leahy bill, the
telephone companies would face no statutory requirement to even hold
the relevant data.
There is a legitimate debate to be had over the proper balance to
strike in our democracy. We continue to have that debate, and we
should. But the opponents of this collection program have not provided
any examples--no examples--of the National Security Agency
intentionally spying on innocent civilians--no examples of that. In
fact, the NSA, the courts, and the Congress have put in place detailed
oversight procedures to protect both privacy and national security.
Moreover, the only data captured under this program is the telephone
number dialed--the telephone number dialed--the number from which the
call was made, and the length of the call. Under section 215 of the
PATRIOT Act, the content of the call is not captured. So I think the
programs we have in place strike an appropriate balance between
protecting our civil liberties and keeping our Nation safe. I think the
bill before us would upend that delicate balance completely.
What is more, legislation with such far-reaching effects should be
given the closest possible scrutiny, but this bill was never even
considered by the Judiciary Committee or the Intelligence Committee. So
it is unclear why the majority leader is moving to it now rather than
taking up a bipartisan measure such as the FISA Improvements Act that
passed the Intelligence Committee on a strong bipartisan vote of 11 to
4.
With the current law not even expiring until next June, it is unclear
why the majority leader wants to rush this untested bill through in
this lameduck session rather than after a reasonable consideration by
relevant committees and by the newly elected Members who will actually
be responsible for overseeing the program's operation.
The point is that the authorities we enacted after September 11,
2001, which were crafted to ensure that we integrated intelligence
gathered overseas and here in the United States, are acutely relevant
right now. We live in a dangerous world. Threats such as ISIL only make
it more so. At a moment when the United States is conducting a military
campaign to disrupt, dismantle, and defeat ISIL, now is certainly not
the time to be considering legislation that takes away the exact tools
we need to combat ISIL.
Our intelligence community is working to track foreign fighters
returning from fighting in Syria, to prevent others from traveling to
the battlefield, and to keep those within Syria from radicalizing their
friends and families back home. It makes little sense to pass
legislation that hinders our intelligence community--legislation that
has yet to receive any committee consideration.
On that note, today's Wall Street Journal features an excellent
opinion piece offered by former Federal judge and Attorney General
Michael Mukasey and Gen. Michael Hayden, the former Director of the CIA
and the NSA. I recommend their column, ``NSA Reform That Only ISIS
Could Love.'' I ask unanimous consent that a copy be printed in the
Record at this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Nov. 7, 2014]
NSA Reform That Only ISIS Could Love
(By Michael V. Hayden and Michael B. Mukasey)
For those charged with gathering the information our
government needs to keep us safe, the news has been grim.
Following the leaks by Edward Snowden beginning in June last
year of highly classified intelligence gathering techniques,
the former head of the National Counterterrorism Center,
Matthew Olsen, disclosed in September that terrorists tracked
by U.S. intelligence services have started encrypting their
communications in ways that defeat detection, and that the
government has lost track of several.
Meanwhile, Islamic State terrorists continue to rampage
across Syria and Iraq, even as the group, also known as ISIS,
uses sophisticated Internet communications to swell its ranks
with recruits bearing U.S., Canadian or European passports
who can easily slip back into their native countries and
wreak havoc.
In that threat environment, one would think that the last
thing on the ``to do'' list of the 113th Congress would be to
add to the grim news. Yet Senate Majority Leader Harry Reid
has announced that he will bring to the floor the
extravagantly misnamed USA Freedom Act, a major new bill
exquisitely crafted to hobble the gathering of electronic
intelligence.
For starters, the bill ends the National Security Agency's
bulk collection of what is called telephone metadata. This
includes the date, time, duration and telephone numbers for
all calls, but not their content or the identity of the
caller or called, and is information already held by
telephone companies. The bill would substitute a cumbersome
and untried process that would require the NSA, when it seeks
to check on which telephone numbers have called or been
called by a number reasonably associated with terrorist
activity, to obtain a warrant from the Foreign Intelligence
Surveillance Court, or FISA court, and then scurry to each of
the nation's telephone-service providers to comb through the
information that remains in their hands rather than in the
NSA's.
Nothing in the bill requires the telephone companies to
preserve the metadata for any prescribed period. Current
Federal Communications Commission regulations impose an 18-
month retention requirement, but administrative regulations
are subject to change. It isn't hard to envision companies
that wish to offer subscribers the attraction of rapid
destruction of these records, or a complaisant bureaucracy
that lets them do it.
The bill's imposition of the warrant requirement on the NSA
would be more burdensome than what any assistant U.S.
attorney must do to get metadata in a routine criminal case,
which is simply to aver that the information is needed in
connection with a criminal investigation--period.
Proponents say this change is necessary to allay fears that
the NSA could use telephone metadata to construct an
electronic portrait of an American citizen's communications,
and determine whether that person has, say, consulted a
psychiatrist, or called someone else's spouse. However, only
22 people at the NSA are permitted access to metadata, and
only upon a showing of relevance to a national-security
investigation, and they are barred from any data-mining
whatsoever even in connection with such an investigation.
They are overseen by a Madisonian trifecta of the FISA court,
the executive and committees of Congress. Those people and
everyone else at the NSA live in constant dread of failing to
detect a terrorist attack. Nonetheless, the sponsors of the
USA Freedom Act prefer the counsel of hypothetical fears to
the logic of concrete realities.
This sensitivity to abstract concerns doesn't stop at the
water's edge. Under the bill, if the FISA court directs any
change, however technical, in the gathering of information
from foreigners abroad, no information gathered before the
change is implemented could be used before any official body
in this country--agency, grand jury, court, whatever.
Back in the bad old days, as during World War II and the
Cold War, intelligence of all sorts directed at protecting
national security was gathered by the executive without
supervision by judges who, after all, know nothing about the
subject and cannot be held to account for adverse outcomes.
After the Watergate scandal and the resignation of
[[Page S6029]]
President Nixon, the FISA court was established in 1978 to
provide oversight for intelligence gathering, in addition to
that already provided by the executive and by Congress. Now,
there are those who complain that the FISA court accedes too
often to requests for government access to information, and
does not appear to resemble a true court in that there is no
public advocate opposing the government position.
But the nearly uniform success of the government before the
FISA court is due both to the government's careful restraint
in presenting applications, and to pushback from the court
itself--which results in the amendment of applications. Even
when the government applies for wiretaps or search warrants
in ordinary criminal cases there is no advocate opposing the
application.
Nonetheless, this new bill would establish a permanent
advocate appointed by the court to oppose the government's
applications before the FISA court. This provision has
elicited an extraordinary written objection from a former
presiding judge of the FISA court. U.S. District Judge John
D. Bates points out that the presence of such an advocate,
who cannot conceivably be aware of all the facts, would
simply add to the burdens of the court and could wind up
sacrificing both national security and privacy.
This bill redefines the FISA court, which was never meant
to be an adversary tribunal and was imposed simply as an
added safeguard in the 1970s, without regard to its history
or its purpose. Worse, it is a three-headed constitutional
monster: It is a violation of both the separation of powers
principle and the Constitution's appointments clause by
having judges rather than the president appoint the public
advocate, and then it has the advocate litigate against the
Justice Department when both executive offices are supposed
to be controlled by the president.
The bill is not an unrelieved disaster. It rightly allows
for the expansion of metadata gathering to include more calls
made by cellphones.
Not surprisingly, the bill has received the endorsement of
President Obama's attorney general, Eric Holder, and his
director of national intelligence, James Clapper, who in a
Sept. 2 letter to the Senate Judiciary Committee said they
were ``comfortable'' with the bill's provisions--even as they
conceded that the bill may have ``additional impacts that we
will be able to identify only after we start to implement the
new law.''
If that calls to mind the Affordable Care Act and the
suggestion that we should wait and find out what is in the
bill until after it passes, bear in mind that ``additional
impacts'' here may include holes in the ground where
buildings used to stand and empty chairs where people used to
sit.
There is no immediate or emergency need for this piece of
legislation. Current surveillance authorities do not expire
at the end of this year, which is fortunate given the current
threats we face at home and abroad. The USA Freedom Act
should await the attention of the Congress that will actually
oversee it. A change to national-security procedures is not
something to be rushed through in a lame-duck session.
____________________
[Congressional Record Volume 160, Number 141 (Tuesday, November 18, 2014)]
[Senate]
[Pages S6029-S6053]
[...]
SEN. LEAHY [...]
USA Freedom Act
On another matter, while I have the floor, the distinguished
Republican leader spoke against the USA FREEDOM Act earlier this
morning. Unfortunately, he was too busy to respond to a couple of
simple questions, even though he was asked to. But I would note that
last year, Americans learned that section 215 of the USA PATRIOT Act
had been secretly interpreted for years to allow the bulk collection of
telephone records. Unlike the comments made earlier that there were no
hearings on this, the USA FREEDOM Act of 2014 came about after numerous
congressional hearings, including six--six--public hearings in the
Senate Judiciary Committee.
At least two panels of independent experts have concluded that the
bulk collection program has not been essential or even a key part of
keeping our country safe. We now have wide bipartisan agreement in the
Senate and the House that the bulk phone records collection program is
not essential, it violates Americans' privacy, and it has to end. So
the question before Congress is not whether to end the program, but
when and how.
The USA FREEDOM Act of 2014 ends the NSA's bulk collection program,
but does so responsibly. The bill contains key reforms to safeguard
Americans' privacy by prohibiting the indiscriminate collection of
their data. It also provides for greater accountability and
transparency of the government's surveillance programs, and it improves
the FISA Court. The bill also ensures that the intelligence community
has the tools it needs to keep our country safe.
This legislation is the result of several months of intense
discussions and deliberations with the intelligence community and
stakeholders across the political and economic spectrum. It has the
unprecedented support of the Director of National Intelligence, the
Attorney General, American technology companies, and privacy and civil
liberty groups ranging from the ACLU and EEF to the NRA and
TechFreedom, as well as the Director of NSA and lawmakers from all
parts of the political spectrum who support it.
We cannot afford to delay action on these reforms any longer, as the
American people continue to demand stronger protections for their
privacy. Unfortunately, some would rather use scare tactics than
legislate. Some would have us wait while American businesses continue
to lose tens of billions of dollars in the international marketplace.
Or we could even wait until we are facing down the expiration of
Section 215 in a matter of months, thereby creating dangerous
uncertainty and risk for the intelligence community.
The American people have had enough delay; they want action and real
reform. It is time to get back to work, to show leadership, and to
govern this country responsibly. The USA FREEDOM Act of 2014 is an
opportunity to do just that.
Let us get it done now, when it can be done.
Mr. President, I ask unanimous consent to have printed in the Record
several letters and editorials in support of the USA FREEDOM Act of
2014.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Office of the Director of National Intelligence,
Department of Justice,
Washington, DC, September 2, 2014.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Chairman Leahy: Thank you for your letter of August
19, 2014, asking for the views of the Department of Justice
and the Intelligence Community on S. 2685, the USA FREEDOM
Act. We appreciate your extensive efforts to develop a bill
in coordination with the Administration, privacy and civil
liberties advocates, and representatives from the
communications providers that builds upon the good work done
by the House in its bill passed on May 22, 2014. As discussed
below, the Intelligence Community believes that your bill
preserves essential Intelligence Community capabilities; and
the Department of Justice and the Office of the Director of
National Intelligence support your bill and believe that it
is a reasonable compromise that enhances privacy and civil
liberties and increases transparency.
The USA FREEDOM Act bans bulk collection under a variety of
authorities. In particular, the bill permits collection under
Section 215 of the USA PATRIOT Act using a specific selection
term that narrowly limits the scope of the tangible things
sought to the greatest extent reasonably practicable,
consistent with the purposes for seeking the tangible things.
Recognizing that the terms enumerated in the statute may not
always meet operational needs, the bill permits the use of
other terms, provided there are court-approved minimization
procedures that prohibit the dissemination and require the
destruction within a reasonable period of time of any
information that has not been determined to satisfy certain
specific requirements. We believe that this approach will
accommodate operational needs while providing appropriate
privacy protections.
The bill also provides a mechanism to obtain telephone
metadata records in order to identify potential contacts of
suspected terrorists inside the United States. The
Intelligence Community believes that, based on communications
providers' existing practices in retaining metadata, the bill
will retain the essential operational capabilities of the
existing bulk telephone metadata program while eliminating
bulk collection.
The bill also increases transparency by expanding the
amount of information communications providers can disclose
and increasing public reporting by the government. Although
balancing national security and the public's legitimate
interest in additional transparency can be difficult, we are
comfortable with the transparency provisions in this bill
because, among other things, they recognize the technical
limitations on our ability to report certain types of
information.
We note that, consistent with the President's request, the
bill establishes a process for the appointment of an amicus
curiae to assist the FISA Court and FISA Court of Review in
matters that present a novel or significant interpretation of
the law. We believe that the appointment of an amicus in
selected cases, as appropriate, need not interfere with
important aspects of the FISA process, including the process
of ex parte consultation between the Court and the
government. We are also aware of the concerns that the
Administrative Office of the U.S. Courts expressed in a
recent letter, and we look forward to working with you and
your colleagues to address those concerns.
The USA FREEDOM Act represents the result of extensive
discussions and deliberations and has the support of a wide
range of interests. Admittedly, it is possible that there are
additional impacts that we will be able to identify only
after we start to implement the new law. You have our
commitment to notify Congress if we determine that the new
law is impeding the Intelligence Community's ability to
protect national security. Overall, the bill's significant
reforms should provide the public greater confidence in our
programs and the checks and balances in the system.
Sincerely,
Eric H. Holder, Jr.,
Attorney General.
James R. Clapper,
Director of National Intelligence.
____
Reform Government Surveillance
Open Letter to the Senate: The Senate has an opportunity
this week to vote on the bipartisan USA Freedom Act. We urge
you to pass the bill, which both protects national security
and reaffirms America's commitment to the freedoms we all
cherish.
The legislation prevents the bulk collection of Internet
metadata under various authorities. The bill also allows for
transparency about government demands for user information
from technology companies, and assures that the appropriate
oversight and accountability mechanisms are in place.
Since forming the Reform Government Surveillance coalition
last year, our companies have continued to invest in
strengthening the security of our services and increasing
transparency. Now, the Senate has the opportunity to send a
strong message of change to the world and encourage other
countries to adopt similar protections.
Passing the USA Freedom Act, however, does not mean our
work is finished. We will continue to work with Congress, the
Administration, civil liberties groups and governments around
the world to advance essential reforms that we set forth in a
set of principles last year. Such reforms include: preventing
government access to data without proper legal process;
assuring that providers
[[Page S6033]]
are not required to locate infrastructure within a country's
border; promoting the free flow of data across borders; and
avoiding conflicts among nations through robust, principled,
and transparent frameworks that govern lawful requests for
data across jurisdictions.
Now is the time to move forward on meaningful change to our
surveillance programs. We encourage you to support the USA
Freedom Act.
AOL, Apple, Dropbox, Evernote, Facebook, Google,
LinkedIn, Microsoft, Twitter, Yahoo.
____
November 14, 2014.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Charles E. Grassley,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Senators Leahy and Grassley: The USA Freedom Act, now
under consideration in the Senate, is broadly consistent with
the recommendatins we made last year in our report on how to
safeguard both liberty and security in a rapidly changing
world.
Specifically, we note the close similarity of the bill with
our first recommendation, that orders under Section 215
should be issued by the Foreign Intelligence Surveillance
Court about particular individuals and only where there are
reasonable grounds to believe that the particular information
sought is relevant to an authorized investigation.
Sincerely,
Richard Clarke,
Michael Morell,
Cass Sunstein,
Geoffrey Stone,
Peter Swire.
____
[From the Washington Times, Nov. 14, 2014]
Bipartisanship in Defense of the Constitution
Reining in the NSA is something that all Americans can embrace
(By Chris Cox and Laura Murphy)
Washington politicians are squaring off for another round
of confrontation following an election in which millions of
American voters demanded an end to the squabbling and a
commitment to actually solving the many problems facing the
country. There are, of course, issues on which agreement
shouldn't be expected, but there are others on which there
should be broad agreement, regardless of party and ideology.
As representatives of two organizations, the National Rifle
Association (NRA) and the American Civil Liberties Union
(ACLU), with very different perspectives on some issues, we
are joining together today because of our belief in the
constitutional guarantees of free speech and privacy and our
concern that both could be lost unless we rein in
governmental surveillance and monitoring that characterizes
life in this country.
The NRA last year joined the ACLU in court proceedings
aimed at limiting the surveillance of private citizens in the
name of national security. While we agree that government
should have the power it needs to protect the American people
from terrorist threats, those charged with doing so must be
accountable and play by the rules set down by the Founders in
the Constitution and its Bill of Rights.
Our lawsuit involved the National Security Agency's program
to collect what the government likes to call ``metadata,''
including records of phone calls made by every single
American. That data can paint an intimate portrait of
someone's life--who they talk to, the organizations they
support and who their friends are. However, that same
information can be used to target innocent Americans involved
in perfectly legal activities that our government doesn't
happen to like.
For example, by using metadata, the government can identify
and track most gun owners by tracing contacts with gun
ranges, firearms retailers and the like, facilitating the
establishment of the national firearms registry that gun
owners fear and federal law prohibits. It can also be used by
government officials to get information on journalists or any
activists that are critical of government policies.
In our view, current surveillance practices violate the
First and Fourth Amendments and threaten other rights, such
as those guaranteed by the Second Amendment, and they are not
making us any safer. President Obama's own review panel and
the Privacy and Civil Liberties Oversight Board have found
that these call-records programs have not provided any
crucial information in even one terrorism case. Even James R.
Clapper, the nation's director of national intelligence,
supports legislation known as the USA Freedom Act, a modest
reform proposal that brings current practices more in line
with what the Constitution requires.
While there is much the Senate shouldn't or needn't do
during the ``lame-duck'' session, the USA Freedom Act is
badly needed legislation that has bipartisan support and will
protect the rights of all Americans. The NRA and the ACLU,
along with many members of Congress from both parties,
support these reforms and they should be enacted, without
weakening amendments, by the Senate and sent to the White
House as soon as possible.
Public frustration with Congress is heightened when
essential and widely supported legislation such as the USA
Freedom Act languishes and dies for reasons that defy common
sense. It's happened before. After all the rhetoric and after
the case is made, nothing happens. If the Senate can't pass
and the president can't sign a widely supported package of
reforms to protect the basic constitutional rights of the
American people, is it any wonder that Americans of both
parties conclude that Washington is simply dysfunctional?
Every day that the Senate fails to vote on these reforms is
a day in which law-abiding citizens have reason to fear that
the constitutional protections so dear to the Founders and so
crucial to the functioning of a free society no longer apply.
That is a fear the Senate can begin to correct by passing the
USA Freedom Act before the end of this year.
____
[From the Washington Post, Nov. 17, 2014]
The Senate Should Approve a Bipartisan Proposal to Reform the NSA
(Editorial)
The Senate is set to vote Tuesday on the USA Freedom Act,
the most promising National Security Agency reform proposal
before Congress. Neither national security hawks nor civil
libertarians get everything they want from the legislation,
which means it could fail to get the 60 votes it needs to
advance, or it could get pulled too far in one direction or
another during an open amendment process after that. Either
road to demise would be unfortunate: The bill deserves to be
approved, reconciled with a House-approved version and sent
to President Obama.
The headline of the Senate's bill, sponsored by a varied
group of Democrats and Republicans with Sen. Patrick Leahy
(D-Vt.) in the lead, is that it would end the government's
bulk collection of so-called metadata--phone calling records,
for example. In its place, the bill would give the government
authority to demand calling records from phone companies in
specific cases, if the collection is ``narrowly'' limited.
Even then, the government would have to discard information
lacking bona-fide intelligence value, and its metadata
collection operations would be subject to more oversight.
That's fine, but bulk metadata collection is not the most
important issue the bill addresses. The act would bring
change to the Foreign Intelligence Surveillance Court, which
helps oversee the NSA's activities. The court, which
generally hears only the government's side of any issue,
would get balance from a panel of advocates tasked with
arguing for civil liberties when the judges are considering
important questions of law. The proposal also foresees
appeals courts reconsidering more FISA cases, and the bill
would press for major court decisions to be released.
The bill would enable a more orderly and informed debate on
NSA activities as well. It would require the government to
release much more information on how much it is using various
authorities and, crucially, on how many people's information
it has swept up in the process. It also harmonizes the
expiration of many surveillance authorities. Americans, then,
would have more information to assess surveillance activities
and a single date on which surveillance policy will be up for
debate.
Technology companies have come out strongly in favor of the
plan, as have many--though not all--civil liberties
advocates. So, too, has the Obama administration. Though the
intelligence community would have to change its behavior--
significantly in certain programs--it would get clear legal
authorities that it wants and an extended expiration timeline
for some of them. It would also maintain its core, foreign-
focused surveillance authorities without much change. Therein
lies the bill's careful balance. As the Senate works on the
proposal over the coming days, it should preserve that
delicate and authentic compromise.
____
[From the New York Times, Nov. 17, 2014]
A Crucial Vote on the Surveillance Bill
(Editorial)
The Republican Party is so badly fractured that it is
impossible to tell what steps it will take on domestic
surveillance once it assumes control of Congress in January.
Its rising libertarian wing wants to crack down on abuses of
Americans' privacy, but many of its leaders express full
support for any action the intelligence agencies want to
take.
That's why it's important that the Senate break a
filibuster on the USA Freedom Act, which would reduce or end
the bulk collection of telephone records, in a vote scheduled
for Tuesday afternoon. If the bill doesn't pass in the
current lame-duck session of the Senate, still controlled by
Democrats, it may never get past the 60-vote hurdle in the
next session of Congress.
The bill, sponsored by Senator Patrick Leahy, Democrat of
Vermont, would require the National Security Agency to ask
phone companies for the records of a specific person or
address when it is searching for terrorists, instead of
scooping up all the records in an area code or city. It would
force the agency to show why it needs those records, and to
disclose how much data is being collecting.
The bill would also create a panel of advocates to support
privacy rights and civil liberties in arguments before the
Foreign Intelligence Surveillance Court; currently, there is
no one to offer opposition to government requests before the
court. The government would have to issue clear summaries of
the court's most significant rulings.
[[Page S6034]]
Not every potential surveillance abuse is addressed in the
measure. For example, it leaves open the possibility of
``backdoor'' searches of American data that investigators
come across when searching for the communications of
foreigners. It exempts the F.B.I. from transparency on
searches. And it is not clear whether the government believes
there is some other hidden legal authority for bulk
collection other than the one addressed in the USA Freedom
Act.
Nonetheless, the bill is a good way to begin restoring
individual privacy that has been systematically violated by
government spying, revealed through the leaks provided by
Edward Snowden. It has been supported by the American Civil
Liberties Union, the Electronic Frontier Foundation, and
other privacy watchdogs. On Sunday, a group of the biggest
technology companies--including Google, Microsoft, Facebook
and Twitter--endorsed the bill because it allows more
disclosure of the demands for information made of them by the
government.
In addition to Senate Democrats, the bill is supported by
some hard-right Republicans, including Ted Cruz of Texas and
Mike Lee of Utah. But Mitch McConnell of Kentucky, who will
soon be the Senate majority leader, has supported the
N.S.A.'s spying on Americans. That's a good a reason to pass
it before a new Senate can water it down.
Mr. LEAHY. I yield the floor, and I thank the distinguished Senator
from California for giving me this time.
[...]
[Congressional Record Volume 160, Number 141 (Tuesday, November 18, 2014)]
[Senate]
[Pages S6075-S6080]
USA FREEDOM ACT--MOTION TO PROCEED
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 2685, which the
clerk will report.
The assistant bill clerk read as follows:
Motion to proceed to calendar No. 499, S. 2685, a bill to
reform the authorities of the Federal Government to require
the production of certain business records, conduct
electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, criminal purposes,
and for other purposes.
Mr. REID. Madam President, could we have order?
The PRESIDING OFFICER. Order, please.
Mr. REID. Madam President, under the rule that has been initiated
here in the Senate and confirmed, we have 30 minutes of debate on this
matter, and I have been told that it won't take that full 30 minutes.
And, Madam President, the time for debate would be equally divided.
The PRESIDING OFFICER. Under the previous order, there will be 30
minutes for debate between the leaders or their designees.
Who yields time?
Mr. REID. Madam President, I suggest the absence of a quorum, and ask
unanimous consent that the time be equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. LEAHY. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I would ask for order.
[[Page S6076]]
We still don't have order in the Chamber.
The PRESIDING OFFICER. Order in the Senate, please. Senators, please
take your conversations outside the Chamber.
The Senator from Vermont.
Mr. LEAHY. We have confirmed three judges from Georgia and I want to
compliment the two Senators from Georgia for their hard work, both in
the Judiciary Committee and the White House. And in that, I am sorry
they had to wait so long. On this side of the aisle we cleared every
one of those for a voice vote months ago. I am sorry that your side
wanted to delay it, but I see a 100-0 vote, and the voice votes are
accurate. But I compliment the two Senators from Georgia for sticking
with their nominees.
Madam President, I would like to yield to the distinguished Senator
from Utah, Senator Lee, for 4 minutes.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Madam President, in 2013, the country learned that the
government, specifically the NSA, had been collecting and storing
enormous amounts of information about American citizens, and that the
data collection at issue was not limited to those who were actually
suspected of terrorist activity or even necessarily to those who were
connected to those suspected of engaging in terrorist activity. Many
were understandably very concerned about how much and what kind of data
was being collected and whether this information could be or had been
abused by government officials.
Today proponents of the metadata program claim it cannot be used to
identify ordinary American citizens. But earlier this year researchers
at Stanford University proved that the very type of metadata collected
under Section 215 of the PATRIOT Act could be used to uncover a lot of
information, including information about a person's politics, what kind
of medications they might be taking, about where they go to church, and
so on and so forth.
The USA FREEDOM Act is a bipartisan piece of legislation that would
end bulk collection of metadata currently gathered by the NSA, and it
would help address the problem of the American government spying on its
own citizens without cause. It also would improve transparency for the
data that NSA does collect. It has the support of leaders in our
intelligence community, the Department of Justice, civil liberties
groups, the National Rifle Association, and several tech companies.
Opponents of this bill say it will impair our national security. They
say the bill will keep our intelligence community from protecting us.
But what opponents of this bill fail fully to appreciate is that most
Americans are deeply concerned about the collection of their own
personal information. This bill is an opportunity to strike a
reasonable commonsense balance between protecting Americans' privacy
and at the same time protecting our national security.
While I believe there are honest, decent people working in our
intelligence community, and while I think this has been overwhelmingly
the norm, it is important to heed a warning given to us centuries ago
by James Madison. In Federalist 51, Madison wrote:
If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the
government to control the governed; and in the next place
oblige it to control itself.
Congress should address this issue now. The provision of the PATRIOT
Act authorizing this kind of data collection expires just after
Memorial Day this coming year, and it is important to adopt a
compromise well ahead of this deadline that all interested parties can
accept.
The PRESIDING OFFICER (Mr. Donnelly). The Senator from Vermont.
Mr. LEAHY. I thank the junior Senator from Utah who has worked so
hard on this.
It has been more than a year since Americans first learned that the
government had been secretly sweeping up the telephone records of
innocent Americans, regardless of whether there was any connection
whatsoever to terrorism or criminal activity. I introduced the original
USA FREEDOM Act last October with Republican Congressman Jim
Sensenbrenner, and the Senate Judiciary Committee held six public
hearings to address these issues.
During those hearings, we learned that the bulk phone records
collection program had not, as previously advertised, thwarted 54
terrorist plots, or even dozens, or even a few. In fact, we learned
through our public hearings that after all the talk about why we needed
this program, we learned that the number was maybe one. That is an
important fact for these who argue that the NSA's bulk phone records
program is somehow essential to our fight against ISIL or other
terrorists. It did nothing to stop ISIL from starting in the first
place.
Our bill protects Americans. It enhances privacy protections and ends
indiscriminate data collection by the NSA, but also keeps the essential
tools our intelligence community needs to protect our Nation. That is
the simple truth and important to remember. That is why our
intelligence community strongly supports this bill.
As someone who worked in law enforcement, and as a native of Vermont
where the right of privacy is cherished, I know we can have both
liberty and security. The USA FREEDOM Act provides for commonsense
reforms to government surveillance, and promotes greater accountability
and transparency of the government's surveillance programs, and it
improves the FISA Court.
This is a carefully crafted bill that builds on the work of the House
of Representatives. It has the unprecedented support of the Director of
National Intelligence, the Attorney General, the Director of the NSA,
American technology companies, and privacy and civil liberties groups
across the political spectrum, ranging from the ACLU and EFF to the NRA
and TechFreedom. Lawmakers from all parts of the political spectrum,
from the right to left, support the USA FREEDOM Act. They know it is a
reasonable and responsible compromise. There is no reason why we should
not proceed to a debate on this important bill.
I understand that there are some Members who want votes on parts of
it, and that is fine. Let's have the votes. Let's not block this bill
and say: Well, we want something better. That means you don't vote yes,
you don't vote no, you vote maybe. Let's have some relevant amendments,
and let's vote on them. Don't let this get bogged down in procedural
nonsense that the American public hates. Senators should allow us to
get onto this bill and help us reach an agreement on a limited list of
germane amendments to be considered. Let's have germane amendments and
vote them up or down. If we work together, we can finish the bill by
the end of the week.
We cannot afford to delay action on these reforms until next year. As
both the ACLU and the NRA pointed out yesterday in a joint op-ed in the
Washington Times, ``every day that the Senate fails to vote on these
reforms is a day in which law-abiding citizens have reason to fear that
the constitutional protections so dear to the Founders and so crucial
to the functioning of a free society no longer apply.''
I echoed the words we heard from the Senator from Utah. Every day
that we fail to act is another day that American businesses are harmed.
One conservative think tank estimated that the ``mistrust engendered by
the NSA's programs could cost the U.S. technology industry between $35
billion and $180 billion over the next three years.'' That is a
staggering amount.
Senators should listen to the intelligence community professionals
who protect our nation every day, and who are calling for swift passage
of this bill. Ask the Director of National Intelligence. Ask the
Attorney General. They will tell you that it is better for our national
security, and better for our fight against terrorism if we pass the USA
FREEDOM Act.
This is a reasonable compromise that all Senators should support, and
I thank the Majority Leader for bringing this bill to the floor. And I
thank Senators Dean Heller, Mike Lee, Dick Durbin, Al Franken, and
Richard Blumenthal for their steadfast work on this bill.
Our bill is good for privacy and civil liberties, and upholds our
Constitution. It is good for American business. It is
[[Page S6077]]
good for national security. And most importantly, it is the right thing
to do on behalf of Vermonters and the rest of the American people. I
urge all Senators to vote in favor of the cloture motion pending before
us.
I ask unanimous consent that the Statement of Administration Policy
in support of the USA FREEDOM Act be printed in the Record.
There being no objection, the material was orered to be printed in
the Record, as follows:
Statement of Administrtion Policy
S. 2685--USA Freedom Act
(Sen. Leahy, D-VT, and 18 cosponsors, Nov. 17, 2014)
The Administration strongly supports Senate passage of S.
2685, the USA FREEDOM Act. In January, the President called
on Congress to enact important changes to the Foreign
Intelligence Surveillance Act (FISA) that would keep our
Nation safe, while enhancing privacy and better safeguarding
our civil liberties. This past spring, a broad bipartisan
majority of the House passed a bill that answered the
President's call. S. 2685 carefully builds on the good work
done in the House and has won the support of privacy and
civil liberties advocates and the private sector, including
significant members of the technology community. As the
Attorney General and the Director of National Intelligence
stated in a letter dated September 2, 2014, the bill is a
reasonable compromise that enhances privacy and civil
liberties and increases transparency.
The bill strengthens the FISA's privacy and civil liberties
protections, while preserving essential authorities that our
intelligence and law enforcement professionals need. The bill
would prohibit bulk collection through the use of Section
215, FISA pen registers, and National Security Letters while
maintaining critical authorities to conduct more targeted
collection. The Attorney General and the Director of National
Intelligence have indicated that the bill will retain the
essential operational capabilities of the existing bulk
telephone metadata program while eliminating bulk collection,
based on communications providers' existing practices. The
bill also authorizes an independent voice in significant
cases before the Foreign Intelligence Surveillance Court
(FISC)--the Administration is aware of the concerns with
regard to this issue, as outlined in the letter from the
Attorney General and the Director of National Intelligence,
and the Administration anticipates that Congress will address
those concerns. Finally, the bill will enhance transparency
by expanding the amount of information providers can disclose
and increasing public reporting requirements.
In sum, this legislation will help strengthen Americans'
confidence in the Government's use of these important
national security authorities. Without passage of this bill,
critical authorities that are appropriately reformed in this
legislation could expire next summer. The Administration
urges Congress to take action on this legislation now, since
delay may subject these important national security
authorities to brinksmanship and uncertainty. The
Administration urges the Senate to pass the USA FREEDOM Act
and for the House to act expeditiously so that the President
can sign legislation into law this year.
Mr. LEAHY. I yield the floor.
Mr. CHAMBLISS. Mr. President, I yield 3 minutes to the Senator from
Florida, Mr. Rubio.
Mr. RUBIO. I thank the Presiding Officer.
God forbid tomorrow morning we wake up to the news that a member of
ISIL is in the United States and Federal agencies need to determine who
this person is coordinating with to carry out a potential attack within
the homeland. One of the tools they will use is a tool that allows them
to see the people they have been calling and interacting with so we can
disrupt that cell before they carry out a horrifying attack that could
kill millions of American people.
Today we are able to do that because of a program that collects those
records and keeps them--not in the hands of anyone who is looking at
them on a regular basis but keeps them readily available for the
government so the government can access those records and disrupt that
plot. What this bill would do is take that apart. In essence, it would
ask the companies to keep those records--at least in the hopes that
they would. Under this plan, if this were to pass, if suddenly we were
to go target these members of ISIL and find out whom they are
coordinating with, those records may not be there and that plot may
indeed go forward. That would be a horrifying result.
Here is why this doesn't make sense. First of all, we are rushing
this to the floor of the Senate in a lameduck session, on an issue that
doesn't even expire until next year, on a bill that was not listened to
or heard in a committee, and they cannot cite a single example of this
program ever being abused--not one simple example of this specific
program being abused by anybody intentionally. So we are dealing with a
theoretical threat.
The second thing is that even as we speak, law enforcement agencies
investigating a common crime don't even need to go to a court to access
these very same records. They can just issue an administrative subpoena
and get ahold of them. We are actually making it harder to go after a
terrorist than it will be to go after a common criminal.
This is happening at a time when homegrown violent extremism is the
single fastest growing threat to the United States, people here at home
who have been radicalized--even on the Internet--and people who have
traveled to the Middle East and been radicalized in the hopes of
returning and carrying out attacks here.
I hope this body would take more time to study an issue of this
magnitude because this program was specifically designed to address the
intelligence gaps that existed after the 9/11 attacks. I promise you,
if, God forbid, any horrifying event like that were to happen, the
first question we will be asked is why didn't we know about it and why
didn't we prevent it. If this program is gutted, we potentially will
not be able to know about it, and we will not be able to prevent it.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, this program does not gut it; it actually
enhances it.
Secondly, if this was important to stop ISIL, ISIL never would have
started. The fact is that we had this program way beyond anything
anybody is talking about today, and it didn't slow up or eliminate ISIL
one iota. That is a straw man which we should not even have here. It
has no effect on that, and everybody who has read the intelligence
knows that.
I yield 3 minutes to the Senator from Connecticut.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, I wish to begin by thanking our very
esteemed colleague, the chairman of the Judiciary Committee, Senator
Leahy, for his leadership on this issue and my colleagues whom he has
named who have helped in drafting and crafting this very important
piece of legislation.
I also wish to thank my friends and colleagues across the aisle, such
as the Senator from Utah, who have supported and helped to make clear
that this bill advances the cause of safeguarding our Nation without in
any way detracting from its essential operational intelligence
capabilities.
In fact, National Intelligence Director Clapper said:
The bill will retain the essential operational capabilities
of the existing bulk telephone metadata program while
eliminating bulk collection.
This bill increases trust and confidence and credibility of our
intelligence system. It advances that trust and confidence in the
capability of government surveillance to do its job but at the same
time protect our vital privacy interests. It advances the cause of
constitutional liberty and the appearance and perception of trust in
that system. It does so by making the Foreign Intelligence Surveillance
Court look and function like the courts we are accustomed to seeing
issue search warrants in the criminal process and protect essential
liberties. It does it by strengthening and, in fact, installing an
adversarial process so that more than just the government's version of
the facts and law are presented to the Foreign Intelligence
Surveillance Court. It does it by providing for appellate review, just
as we have in normal civilian court. It does it by increasing the
transparency and accountability of the FISA Court system.
Our Founders would have been astonished and appalled to learn that we
permit warrants to be issued by a court that is operating in secret,
issuing secret opinions, and making secret law much like the Star
Chamber did, and that is why this reform is so profoundly and
historically important--because we made the FISA Court one that we can
more aptly and abundantly trust and one that will have credibility and
confidence.
I support this bill.
I thank my colleagues for showing that we can work together in a
bipartisan way to safeguard the essential
[[Page S6078]]
rights of Americans at the same time we protect and preserve our
national security.
I thank the Presiding Officer.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. I thank the Presiding Officer. I wish to speak to
this bill, and I have to say that this is one of the few times that the
vice chairman, the distinguished Senator from Georgia, and I have a
disagreement.
I very much support this 215 metadata program. I think the
Intelligence Committee had approximately 12 hearings on the subject
last year.
Many people believe that the NSA is using this program all the time.
In fact, in the year 2012 there were 288 approved queries, and 12 of
them eventually led the FBI to obtain a probable cause warrant for the
content of the communications. In fact, you cannot obtain content in a
query; a query just searches the phone metadata.
Then the next criticism we have heard has been, well, the government
should not hold the metadata. And that is essentially the big change
this bill makes.
In October 2013, we voted out of our committee--by a vote of 11 to
4--a FISA reform act; however, in my judgment, that bill is not going
to pass in this Congress.
The PRESIDING OFFICER. The Senator's time is up.
Mrs. FEINSTEIN. I ask unanimous consent that my time be extended,
please.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mrs. FEINSTEIN. I thank the Presiding Officer.
I recently talked with Members of the House, and here is what they
told me: If we didn't pass the House bill, there were Members who
wanted to end the whole metadata program. I do not want to end the
program. I am prepared to make this compromise, which is that the
metadata will be kept by the telecom companies.
Senator Chambliss and I wrote a letter to the four big telecoms, and
we asked them if they would hold the data. The answer came back from
two ``yes,'' and the answer that came back from the other two was
inconclusive. Since that time the situation has changed--not in writing
but by personal testament from officials with the two other companies
that they will hold the data for at least 2 years.
Here is the problem: Although there is no mandate to hold the phone
metadata, the fact is that the telecoms have agreed to hold the data
for a sufficient period of time.
The President himself has assured me that he is comfortable with this
bill. And I believe that if we do not pass this bill, the metadata
program is at risk because the 215 program sunsets next year.
Senator Rubio sits on the intelligence committee. I listened to him
with interest. I agree with what he said about ISIL and other terrorist
groups. They will come after us if they can, and the only protection we
have is essentially to disrupt a plot before it becomes a reality in
this country.
The metadata program is not as widely used as the 288 approved
queries in a given year would indicate.
Additionally, in this bill--and I think this should be of
satisfaction to a number of people--the FISA Court would have to
approve a query before that query takes place.
I am prepared to support this bill, and I do so for very practical
reasons because without it, I believe we will not have a metadata
program.
This is hard for me because I have tried to be supportive of the
legislation that comes out of our committee. I have talked to Senator
Leahy. I have said that the one big problem I have with his bill is
that the Foreign Intelligence Surveillance Court is upset with the
language on the special advocate. Senator Leahy said he would change
the language on this part of the bill.
Senator Blumenthal has an amendment--which I assume will pass--which
does change the language on this part of the bill to accommodate the
objections of the FISA court. If that is the case and the telecoms
agree to hold the data, I believe that solves what is a very practical
problem.
In any event, I have agreed to support this legislation.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. How much time on the other side has been used?
The PRESIDING OFFICER. The Senator from Vermont has 30 seconds
remaining.
Mr. CHAMBLISS. How much time do I have remaining?
The PRESIDING OFFICER. Six and a half minutes.
Mr. CHAMBLISS. I only had one speaker and I had 15 minutes. Did he
use 7\1/2\, 8 minutes?
The PRESIDING OFFICER. The Chair was instructed that the Senator from
California spoke on the time of the Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the time
the Senator from California used be added to my time.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. Mr. President, reserving the right to object, I will not
object. I was going to yield the remainder of my time to the Senator
from Texas, Mr. Cruz, and I ask unanimous consent that he be allowed up
to 4 minutes.
Mr. CHAMBLISS. I object to that. He can have your 30 seconds.
Mr. LEAHY. I will not object to the request, and I will yield the
remainder of my time to the Senator from Texas. I am sorry the Senator
from Georgia would not offer me the courtesy.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Georgia.
Mr. CHAMBLISS. I yield to the Senator from Maine for 2 minutes.
Ms. COLLINS. Mr. President, we need reform of the NSA program but not
in this manner. Let's remember why this intelligence tool was put into
place. It was enacted in the wake of the worst terrorist attack in our
country that took the lives of nearly 3,000 people. We have testimony
from the former Director of the FBI and from the former Deputy Director
of the CIA telling us that had this tool been in place, it is likely--
most likely--that the plot that killed nearly 3,000 people would have
been uncovered. Why would we weaken the ability of our intelligence
community at a time when the threats against this country have never
been greater?
Let me address to my colleagues the privacy issue that has been
raised--an issue that all of us care about. These data are far more
safe, far more subject to privacy protections if they are held by the
Federal Government where only 22 vetted and trained government
employees have access to them instead of nearly 150 telecommunications
companies that employ thousands of workers, and the government is going
to have to go to those companies and ask for the data. That greatly
exposes the privacy of individual Americans far more than the current
system.
So for both of those reasons, I urge my colleagues to oppose the bill
of the distinguished Senator from Vermont. It is a mistake. It would
make us less safe, and we have expert testimony telling us that.
Thank you, Mr. President.
Mr. CHAMBLISS. Mr. President, I yield 2 minutes to the Senator from
Indiana.
Mr. COATS. Mr. President, I regret that I just have 2 minutes. It is
unfortunate that a bill with this amount of consequence for Americans
is being debated in such a limited amount of time.
We have 2 bills, one produced by the intelligence community, written
and supported by the chairman, a Democrat from California, and by the
vice chairman, the Republican from Georgia, and it passed on a
bipartisan basis with more than a 3-to-1 ratio. Here we are trying to
go forward, allowing only one vote on one different bill.
Why do we have to rush this through in a lameduck session when it has
such consequences and when the director of the agency that oversees
this, when asked by me what are the ultimate consequences of this, his
answer was: A compromise of our ability to detect terrorist attacks--
and the consequence will be Americans will die. And when that happens,
and when those of us who go everyday to the Intelligence Committee know
what the threat is--the threat is greater than it has ever been--we
need to understand that eventually something will happen here, and
people will turn to us and say: Did you have every possible tool in
place to try to stop this from happening? If you
[[Page S6079]]
didn't, why didn't you? Let's not have a repeat of 9/11 when the
commission then comes to us and says get the tools that you need.
This program has been so mischaracterized in terms of what it does
and doesn't do. Even as I talk to my colleagues, they don't have a full
understanding of what it doesn't do. It has more oversight than any
other Federal program in our committee's jurisdiction. We have enhanced
it through our committee with hours and hours of discussion, and here
we have a bill that wasn't even taken up by the Judiciary Committee and
was just brought here to the floor.
So I urge my colleagues to think this through before we come to a
conclusion we are going to regret.
I thank the vice chairman for the time.
Mr. CHAMBLISS. Mr. President, how much time is remaining?
The PRESIDING OFFICER. The Senator has 5\1/2\ minutes remaining.
Mr. CHAMBLISS. Mr. President, in closing, let me say there are any
number of reasons why the substance of this bill is totally flawed. We
live in a dangerous world today. We all know and understand that. While
the provisions in this bill wouldn't have prohibited ISIL from being
formed--it didn't prevent ISIL from being formed--the provisions in the
underlying FISA bill give the Intelligence Committee all the tools they
need to make sure that when ISIL recruits individuals to go to Syria to
fight, if they are trying to recruit Americans, we can find out about
that. We have under surveillance today any number of individuals, whom
we think have been committed to jihad, who live in America.
Secondly, there is another part of their recruiting that is even more
dangerous than asking young men and women to come to Syria to fight for
ISIL. They want people to go into the Parliament in Canada and start
killing people. They want people to walk the streets of New York and
pull out a gun or a hatchet or whatever it may be and start killing
people.
If we eliminate this program--and that is basically what the Leahy
amendment does--then we are going to take a tool away from our
intelligence community that is not going to allow them to be able to
interrupt and disrupt those types of terrorist attacks.
Now, with respect to our privacy, folks, gosh, we need to be really
protective of privacy issues in this country. We live under a
Constitution that has survived for in excess of 200 years. It has lots
of privacy protections in it, and all of us want to see that happen.
But let me tell my colleagues what is going to happen if this amendment
comes to the floor and should happen to pass today. The metadata that
is collected by the NSA can be accessed by 22 individuals--22. That
means there is an opportunity for leaks to occur or for individual
privacy rights to be breached by 22 people. If this amendment ever
became law, all of a sudden, all of the telecoms are going to be
holding this metadata information as opposed to the NSA holding it. All
of those telecoms have thousands of employees, lots of whom have
access--will have access to this metadata. So instead of having the
potential for 22 people to breach the privacy rights of American
citizens, all of a sudden we are going to have thousands of
opportunities for the privacy rights of Americans to be breached.
Let me close by saying that this program has been criticized an awful
lot simply because of the leaks that Mr. Snowden made because of his
theft of government property. But the fact is there cannot be one
single case pointed to by anybody who can show that as a result of the
collection of metadata under 215, any American has had their privacy
rights breached. It simply has not happened. It will not happen if we
keep this program in place.
Do we need to modify it? You bet. And Senator Feinstein and I did a
good job of that, considering 10 amendments within our committee,
voting on all 10 of them. Some of them passed. Some of them didn't. The
bill came out of our committee on a bipartisan vote.
The Leahy amendment has not even gone to the Judiciary Committee to
give the members of the Judiciary Committee the opportunity to review
it, to file amendments on it, to debate it in committee, and vote on
it. That is not the way this institution has ever worked, and it is not
the way it should work here in a lameduck session with time running
out, and particularly on a controversial and sensitive and important
program as is the 215 FISA amendment program.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. COATS. Mr. President, how much time is remaining on our side?
The PRESIDING OFFICER. There is 1 minute remaining.
The Senator from Texas.
Mr. CRUZ. Mr. President, many months ago the American people were
astonished to learn the Federal Government was collecting bulk metadata
from personal cell phones of millions of law-abiding citizens. This
legislation protects the Constitutional rights of privacy under the
Fourth Amendment while maintaining important tools to protect national
security and law enforcement.
This is bipartisan legislation that enjoys the support of the
intelligence community as well as the tech community. The bill is not
perfect, but in my view we should take it up and consider reasonable
amendments on the floor to make it better. But it is imperative that we
stand together, united, protecting the Bill of Rights.
The PRESIDING OFFICER. The time of the Senator has expired.
The Senator from Georgia has 1 minute remaining.
Mr. CHAMBLISS. I yield back the remaining time, and I ask for the
yeas and nays.
Cloture Motion
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will state.
The assistant bill clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the motion to
proceed to Calendar No. 499, S. 2685, a bill to reform the
authorities of the Federal Government to require the
production of certain business records, conduct electronic
surveillance, use pen registers and trap and trace devices,
and use other forms of information gathering for foreign
intelligence, counterterrorism, and criminal purposes, and
for other purposes.
Harry Reid, Patrick J. Leahy, Sheldon Whitehouse, Martin
Heinrich, Richard Blumenthal, Sherrod Brown, Thomas R.
Carper, Al Franken, Bernard Sanders, Carl Levin, Tom
Udall, Charles E. Schumer, Mazie K. Hirono, Tom Harkin,
Cory A. Booker, Barbara Boxer, Christopher A. Coons,
Richard J. Durbin.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S. 2685, a bill to reform the authorities of the
Federal Government to require the production of certain business
records, conduct electronic surveillance, use pen registers and trap
and trace devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, and criminal purposes, and for
other purposes, shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant bill clerk called the roll.
The yeas and nays resulted--yeas 58, nays 42, as follows:
[Rollcall Vote No. 282 Leg.]
YEAS--58
Baldwin
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cruz
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heitkamp
Heller
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Landrieu
Leahy
Lee
Levin
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Walsh
Warner
Warren
Whitehouse
Wyden
NAYS--42
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
McCain
[[Page S6080]]
McConnell
Moran
Nelson
Paul
Portman
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
The PRESIDING OFFICER. On this vote the yeas are 58, the nays are 42.
Three-fifths of the Senators duly chosen and sworn not having voted in
the affirmative, the motion is rejected.
The Senator from Vermont.
Mr. LEAHY. Mr. President, obviously I am disappointed by tonight's
vote, but I am not new to this fight. We have had six public hearings
on this issue. We heard interesting testimony by the head of the NSA
who talked about 50-some-odd terrorist activities that have been
thwarted by the bulk collection program. When he had to testify in
public, it came down to possibly one.
I mention that because people asked whether we had hearings. We had
six. But the reason I say I am not new to this fight is the very first
vote I cast as a Senator in 1975 was in favor of the Senate resolution
that created the Church Committee. I have worked ever since to ensure
strong oversight of surveillance authorities.
We found in the Church Committee that administrations of both parties
had so badly misused the tools they had in the intelligence community.
We tried to put in restrictions that would balance our constitutional
rights and the security that we needed as Americans. We tried to do
that. I think we did.
That is why over the past decade I have consistently opposed
expanding the USA PATRIOT Act and FISA Amendments Act sunsets without
including meaningful reforms. The first sunsets were put in place by
the Republican leader in the House, Dick Armey, a conservative
Republican, and myself in the Senate. We joined together for the same
reason: If you do not have an ability to look at these issues on a
periodic basis, then they will get out of hand.
I fought the status quo every step of the way in these efforts. The
broad coalition of those in favor of the USA FREEDOM Act shows we are
gaining ground. While I am critical of those Republicans who failed to
answer the call of the American people who elected them to stand up and
work across the aisle, those who reverted to scare tactics rather than
working productively to protect America's basic privacy rights and our
national security--I acknowledge the hard work and principled stance of
several Republicans: Senator Heller, Senator Lee, and Senator Cruz, as
well as other Republicans in the other body, including my initial
partner in this effort, Congressman Jim Sensenbrenner. There have also
been two important partners on the Democratic side in this reform
effort: Senators Franken and Blumenthal who worked with me on
transparency and the FISA Court reforms.
We Vermonters fight to protect our privacy rights. Every Vermonter
does. They mean a great deal to us. Every Vermonter feels that way, and
this lifelong Vermonter will not give up the fight. I owe that to the
Vermonters I serve and to the Constitution I swore an oath to defend.
I would say to those both in this Chamber and outside who approached
this issue by fomenting fear, fomenting fear stifles serious debate and
constructive solutions, like the carefully drawn reforms in this bill.
Doing it at the last minute is all the more regrettable. This Nation
deserves more than that.
This Nation should not allow our liberties to be set aside by passing
fears.
America will always face the threat of terrorist attacks, both
outside our borders and inside. We didn't do away with all our civil
liberties after the Oklahoma City bombing. It was an American who did
that, somebody who served in our military, churchgoing, and so forth.
No more should we do it if the attacks come from outside our country.
We talk about 9/11. We had all the evidence necessary to stop 9/11
before it happened.
Everybody who has looked at that now agrees that if we had bothered
to translate the material we had, if we had bothered to listen to
people in Minnesota who tried to warn us about it, we could have
stopped it.
But because mistakes were made then, let's not take away the
liberties of 325 million Americans.
I felt this way when I was a prosecutor. We even had people escape
from prison with the intent to kill me.
I said: OK. We will get them, but we will follow the law in doing it,
and we did.
Mr. President, 13 years ago this week a letter was sent to me. The
anthrax in it was so deadly that the one person who touched the
envelope--that I was supposed to open--died. They died from it. We
still haven't caught all of the people involved.
But notwithstanding that, when people came to me and said: Well,
maybe we should do away with some of our search and seizure laws, maybe
we should do way with some of our laws for wiretaps, after all somebody
tried to kill you. And if you had touched that envelope you would have
died.
I said: No, this is more than one Senator, more than one person, more
than one individual. This is the Constitution of the United States. If
we, 100 Members of this body, do not protect our Constitution, we do
not protect our country, and we do not deserve to be in this body.
I will continue to fight, and whatever years I have left in this
body, I will continue to fight to preserve our Constitution and our
rights as Americans.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
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