[Congressional Record Volume 161, Number 69 (Thursday, May 7, 2015)]
[Pages S2708-S2712]

                      NSA Counterterrorism Program

  Mr. McCONNELL. Madam President, since the unlawful leaks of NSA 
programs, opponents of our counterterrorism program have painted a 
distorted picture of how these programs are conducted and overseen by 
exploiting the fact that our intelligence community cannot discuss 
classified activities. So what you have is an effort to characterize 
our NSA programs, and the officials who conduct them cannot discuss the 
classified activities. So they are clearly at a disadvantage.
  Since September 11, 2001, FISA has been critically important in 
keeping us safe here in America. According to the CIA, had these 
authorities been in place more than a decade ago, they would likely--
likely--have prevented 
9/11. Not only have these tools kept us safe, there has not been a 
single incident--not one--of an intentional abuse of them.
  The NSA is overseen by the executive, legislative, and judicial 
branches of our government. They are not running rogue out there. The 
NSA is overseen by the legislative, executive, and judicial branches of 
our government. The employees of NSA are highly trained, supervised, 
and tested.
  The expiring provisions of FISA are ideally suited for the terrorist 
threats we face in 2015. These provisions work together to protect us 
from foreign terrorists abroad who use social and other media to 
conspire and eventually plan attacks inside the United States.
  ISIL uses Facebook, uses Twitter, its online magazine, and other 
social media platforms to contact and eventually radicalize recruits 
online. If our intelligence community cannot connect the dots of 
information, we cannot stop this determined enemy from launching 
  Under section 215 authority, the NSA can find connections--find 
connections--from known terrorists overseas and connect that to 
potential terrorists in the United States. But the NSA cannot query the 
database, which consists of call data records such as the number 
calling, the number called, and the duration, without a court order.
  Let me say that again. NSA cannot query the database, which consists 
of call data records such as number calling, the number called, and the 
duration, without a court order. Under section 215, the NSA cannot 
listen to phone calls of Americans at all. Under section 215, the NSA 
cannot listen to the phone calls of Americans at all.
  Despite the value of the section 215 program and the rigorous 
safeguards that govern it, critics of the program either want to do 
away with it or make it much more difficult to use. Many of them are 
proposing a bill--the USA FREEDOM Act--that they say will keep us safe 
while protecting our privacy. It will do neither. It will neither keep 
us safe nor protect our privacy. It will make us more vulnerable and it 
risks compromising our privacy.
  The USA FREEDOM Act would replace section 215 with an untested, 
untried, and more cumbersome system. It would not end bulk collection 
of call data. Instead, it would have untrained--untrained--corporate 
employees with uncertain supervision and protocols do the collecting. 
So it switches this responsibility from the NSA, with total oversight, 
to corporate employees with uncertain supervision and protocols. They 
get to do the collecting. It would establish a wall between the NSA 
analysts and the data they are trying to analyze. At best, the new 
system envisioned by the USA FREEDOM Act would be more cumbersome and 
time consuming to use when speed and agility are absolutely crucial. At 
worst, it will not work at all because there is no requirement in the 
legislation that the telecoms hold the data for any length of time. Put 
differently, section 215 helped us find the needle in a haystack, but 
under the USA FREEDOM Act, there may not be a haystack to look through 
at all.
  In short, the opponents of America's counterterror programs would 
rather trust telecommunication companies to hold this data and search 
it on behalf of our government. These companies have no programs, no 
training or tools to search the databases they would need to create, 
and if that isn't bad enough, we would have to pay them to do it. The 
taxpayers would have to pay them to do it.
  In addition to making us less safe, the USA FREEDOM Act would make 
our privacy less secure. The section 215 program is subject to rigorous 
controls and strict oversight. Only a limited number of intelligence 
professionals have access to the data. There are strict limits on when 
and for what purpose they can access the data. Their access to the data 
is closely supervised with numerous--numerous--levels of review. These 
safeguards will not apply to the untried and novel system under the USA 
FREEDOM Act, and rather than storing the information securely at NSA, 
the information would be held by private companies instead.
  There was an excellent editorial today in the Wall Street Journal 
pointing out the challenges we face. It was entitled the ``Snowden 
Blindfold Act.'' The ``Snowden Blindfold Act'' was the headline in the 
Wall Street Journal today.
  Madam President, I ask unanimous consent to have printed in the 
Record a copy of that article.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Wall Street Journal, May 7, 2015]

                       The Snowden Blindfold Act

       Congress moves to weaken antiterror surveillance while 
     France expands it.
       At least one of the gunmen who shot up a Texas free speech 
     event on Sunday was known to the FBI as a potentially violent 
     radical and was convicted in 2011 on a terror-related charge. 
     The Islamic State claimed credit for this domestic attack, 
     albeit an unproven connection. So it is strange that Congress 
     is moving to weaken U.S. surveillance defenses against the 
     likes of shooters Elton Simpson and Nadir Soofi.
       Two years after the leaks from Edward Snowden's stolen 
     dossier, a liberal-conservative coalition is close to passing 
     a bill that would curtail the programs the National Security 
     Agency has employed in some form for two decades. Adding to 
     this political strangeness, France of all places is on the 
     verge of modernizing and expanding its own surveillance 
     capabilities for the era of burner cell phones, encrypted 
     emails and mass online jihadist propaganda.
       The Patriot Act expires at the end of the month, and a 
     fragile House-negotiated compromise on reauthorization would 
     end NSA sweeps of telephone metadata--the date, time stamps 
     and duration of calls. The content of those calls isn't 
     collected without a separate warrant. The measure also 
     includes mostly cosmetic nuisance changes such as a panel of 
     outside amicus lawyers to advise the secret Foreign 
     Intelligence Surveillance Court (FISC) that supervises and 
     approves NSA activities.
       But the metadata eulogies are premature before what ought 
     to be a sturdy debate in the Senate. Majority Leader Mitch 
     McConnell introduced a ``clean'' extension of current law as 
     a base bill that the chamber will open to amendments later 
     this month. The Senate narrowly defeated a bill similar to 
     the House measure last year, and we hope it does so again.
       Senators should think carefully about the value of metadata 
     collection, and not only because the technical details of the 
     House bill are still being parsed by security experts. In 
     January 2014, President Obama

[[Page S2709]]

     tried to suppress the Snowden wildfire by pronouncing the end 
     of ``bulk metadata program as it currently exists,'' via 
     executive order. Civil libertarians rejoiced. Yet NSA 
     transparency disclosures show the FISC court approved 170 
     search applications of the database in the same calendar 
       Presumably the NSA continued to analyze metadata--despite 
     pro forma White House opposition--because these details 
     provide intelligence that is useful for uncovering plots, 
     preventing attacks and otherwise safeguarding the country. 
     The NSA must demonstrate to FISC judges a ``reasonable, 
     articulable suspicion'' to gain approval for each 
     ``selector,'' or search query.
       In other words, there is little invasion of privacy because 
     the searches are narrow. The NSA isn't even using automated 
     algorithms to reveal suspicious patterns the way that credit 
     card companies and retailers mine consumer data every day. 
     The NSA's 170 metadata searches involved merely 160 foreign 
     targets and 227 known or presumed U.S. citizens.
       There is still no evidence that the data have been abused. 
     The Supreme Court has held since Smith v. Maryland in 1979 
     that the Constitution provides no guarantee of metadata 
     privacy. Domestic police and prosecutors in routine criminal 
     investigations enjoy more warrantless access to metadata well 
     beyond even the NSA status quo.
       The House bill pretends not to undermine intelligence 
     collection by requiring telecom and tech companies to retain 
     metadata business records. The NSA could then request these 
     documents with FISC consent or unilaterally in an emergency. 
     But assembling this information retroactively may be too slow 
     in a true crisis--in return for little or no added privacy 
     protection. After the hacking breaches at Sony, Target and a 
     string of health insurers, Americans may reasonably wonder if 
     their data are safer fragmented across many private third-
     party repositories.
       The Members of Congress who know the most about 
     intelligence know all this, but they say that ending metadata 
     collection is the price of blocking a political stampede that 
     might also kill more important provisions such as Section 702 
     that authorizes foreign-to-foreign wiretaps. That might have 
     been true immediately after the Snowden heist, but it may not 
     be true after the attacks on Charlie Hebdo and in Texas by 
     Islamic State-inspired jihadists.
       Those shootings show that surveillance is more crucial than 
     ever to prevent mass murder on U.S. soil by homegrown or 
     foreign radicals. The French understand this, which is why 
     they are widening their intelligence reach. No prevention can 
     ever be perfect. But the House measure is a deliberate effort 
     to know less and blind U.S. spooks to potentially relevant 
     information. This self-imposed fog may be politically 
     satisfying now, but deadly if there is another attack.

  Mr. McCONNELL. Finally, I would like to ask the senior Senator from 
North Carolina, who is the chairman of the Select Committee on 
Intelligence, the following question: Why was it necessary to enact the 
provisions of the PATRIOT Act after the attacks of 9/11/2001, and why 
are they relevant today given the threat we face from ISIL and Al 
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Madam President, I appreciate the question the leader has 
asked, and, also, I ask unanimous consent to enter into a colloquy with 
my Republican colleagues.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURR. The leader raises a great question, and it is really the 
purpose for which section 215 was created. It is the reason the NSA 
looked at ways to effectively get in front of threats that take us back 
to 9/11 and the attacks.
  As we reacted, through our law enforcement tools within the United 
States, we used an instrument called a national security letter. They 
produced a national security letter. They had to go to the telecoms and 
ask that they search their systems for this information.
  The leader alluded to the fact that many looking back to pre-9/11 
said that had we had the tools we have today, we might have stopped 
this attack. But over a series of years, Congress, the executive 
branch, the Justice Department, and our intelligence community worked 
to refine the tools we thought could effectively be used to get in 
front of a terrorist attack.
  That brings us to where we are today. Over those years, we created 
section 215, the ability to use bulk data. What is bulk data? Bulk data 
is storing telephone numbers--we have no idea to whom they belong--that 
are foreign and domestic. The whole basis behind this program is that 
as a cell phone is picked up in Syria and we look at the phone numbers 
that phone talked to, if it is someone in the United States, we would 
like to know that--at least law enforcement would like to know it--so 
we can understand if there is a threat against us here in the homeland 
or somewhere else in the world.
  Section 215 allows the NSA to collect, in bulk, telephone numbers 
with no identifier on them. We couldn't tell you who that American 
might be. And if for a reason they believe they need to look at that 
number because of an Executive order from the President, they go to a 
judge, and the judge is the one who gives them permission to search or 
query that data. If, in fact, they find a number that connects with one 
of a known terrorist, they have to go back to the court and prove there 
is reason for them to know whose number that is and the duration of 
time of the conversation. Further information requires further judicial 
  Why are we here today? Because this expires on May 31. Some would 
suggest it is time to do away with it.
  Over the same period of time, we added something the American people 
have been very close to. It is called the TSA. Every time we go to an 
airport, we go through a security mechanism. Americans have never 
complained about it. Why? Because we know that when we get on the 
airplane, there is a high degree of likelihood that there is not a 
terrorist, a bomb, or some type of weapon that is going to be used 
against us.
  The leader said there has not been a single instance of a breach of 
privacy. Yet, those who suggest we need to change this do it 100 
percent on the fact that privacy has been invaded. Let me say to all my 
colleagues, to the public, and to both sides of the Hill, today every 
American now has a discount grocery card on their key chain. They go 
and buy groceries and they proudly scan that card because it gets them 
a discount, it gets them coupons, it gets them a gas reduction. Here 
are the facts: Your grocery store collects 10 times the amount of data 
that the NSA ever thought about collecting on you.
  There is a big difference between the NSA and your grocery store: The 
NSA doesn't sell data; your grocery store does. From the data they 
collect, they could do a psychological profile on an individual. They 
could tell you how old they are, what their health is, where they live, 
how often they shop, therefore when they work. We are not in the 
business of doing that. They are. But I don't hear anybody complaining 
about the grocery stores' discount card because you get a discount, so 
you are willing to do that.
  What we haven't shared with the American people is, what do you get 
through this program? You get the safety and security of knowing we are 
doing everything we possibly can to identify a terrorist and the act 
and to stop it before it happens.
  So we are here today with a choice. The choice is whether we are 
going to reauthorize this program, which has been very effective, with 
the same conditions the President has in place--you have to go to a 
judge--and with important controls on privacy by professionals with 
rules, or whether we are going to roll it back to the telecoms. Make no 
mistake about it--the compromise legislation rolls us back to the same 
thing we were doing pre-9/11.
  So whether we let it expire or we reauthorize it, those are the two 
choices because this compromise bill actually forces it back to 
telecoms--very cumbersome, time-consuming, and, I would say, fraught 
with privacy issues, as the leader pointed out. It is my choice to 
continue the program because the program has worked.
  NSA only has less than three dozen people who have the authority to 
look at this data. I will bet there would be more people in every 
telecom company who are authorized to search data.
  Let me suggest this to my colleagues: If their argument is valid, 
then they should be on the floor with a similar bill eliminating the 
TSA. I am not sure anybody invades my privacy any more than the TSA 
process. When I go through, they x ray me, they look at my luggage. In 
some cases, they stop me and wand me and, in some cases, hand-check me. 
I am not sure there are any more blatant privacy concerns than that. 
But they are not in here suggesting we do away with TSA because they 
know the public understands the safety TSA provides to aviation.
  Our big mistake is we haven't been out here sharing with the American 
people why it has been so long since there has been an attack. We were

[[Page S2710]]

lucky this week in Garland, TX--lucky because 40-some Texas law 
enforcement officers happened to be at a museum, and everybody there 
was carrying. We are not going to be lucky every time.
  I remind my colleagues and the public, in the same week, ISIL went on 
social media networks and said: America, don't think that you have got 
this in your rearview mirror. There are over 70 terrorists that we have 
in America in 15 States, and it is a matter of time before it happens.
  Why in the world would we think about rolling back the tools that are 
the only tools that put us post-9/11 versus pre-9/11?
  The threat is greater today domestically and around the world than it 
has ever been, and the argument we will be consumed with is whether we 
do away with tools that have been effective for law enforcement to 
protect America.
  I would suggest that we reauthorize this bill for 5.5 years as is and 
that we make the same commitment to the American people we do when we 
reauthorize and fund the TSA: No matter where you are, we have 
controls. We are going to keep America safe. We are not going to let it 
revert back to where we are susceptible to another 9/11.
  With that, I turn to Senator Cotton, my distinguished colleague from 
Arkansas, and ask whether he agrees that the collection of telephone 
and call data does not raise any reasonable expectations of privacy 
under the Fourth Amendment.
  Mr. COTTON. Madam President, I thank the Senator from North Carolina, 
and I appreciate his work and the majority leader's work on this 
critical issue. I have been working hand in glove with them all along.
  I would say the answer to the question is, no, this does not raise 
any reasonable concern about privacy. In fact, the program does not 
collect any content. It does not surveil any phone call. It doesn't 
even include any personally identifiable information.
  I have spent hours with the intelligence officers and the FBI agents 
who are responsible for administering these programs--not merely the 
general counsels or the directors of these agencies but the men and 
women who administer them. I have asked them what they think poses a 
greater risk to their privacy--the discount grocery card the Senator 
from North Carolina mentioned or the fact that e-commerce Web sites 
have their name, address, credit card number, and personal history? And 
to a person, every one of them said a greater threat to their privacy 
is commercial marketing practices, not this program.
  The program has been approved 40 times by 15 different independent 
Federal judges based on 36 years of Supreme Court precedent and has 
been approved by two Presidents of both parties. If President Obama 
wanted to end the program tomorrow, he could, but he hasn't. That is 
because this program is lawful, it is faithful to the Constitution, it 
is smothered with safeguards against abuse, and it is needed to fight a 
rising terrorist threat that we face today. In fact, those threats 
today are greater than they were on 
9/11. And that is not my opinion; that is the testimony of this 
administration's senior intelligence officials.
  The rise of Al Qaeda affiliates in Africa and the Arabian Peninsula 
and the broader Middle East illustrates the metastasis of Al Qaeda 
following its retreat from Afghanistan. These groups are larger and 
more spread out than their predecessors. They are also more 
technologically and operationally savvy, developing new, nonmetallic 
bombs, recruiting westerners, and using the Internet to spread their 
hatred. They even publish ``how to'' manuals for becoming a successful 
terrorist at home.
  Of course, there is the Islamic State--the Obama-described ``JV 
team''--which has cut the heads off of innocent Americans, is torturing 
and murdering Christians and other religious minorities, and has 
sadistically burned people alive. More than 20,000 foreigners have gone 
to Syria and Iraq to join this enemy. Some have returned to their home 
countries, including the United States, some have remained in their 
home countries, becoming more radicalized and ready to inflict harm 
against Americans.
  We don't have to look any further than this past week, when two 
Islamic State-inspired jihadists decided to open fire in Texas. Press 
reports indicate that one of the attackers was in contact with an ISIS 
supporter currently located in Somalia. This conduct illustrates why 
this program is so important. It helps close the gap that exists 
between foreign intelligence gathering and stopping attacks here at 
home. This is the gap that contributed in part to our failure to stop 
the 9/11 attacks.
  There are also open source reports of ISIS cells in Virginia, 
Maryland, Illinois, California, and Michigan. As a member of the 
Intelligence Committee, I receive regular briefings on such threats, 
and I invite all my colleagues to receive these briefings if they doubt 
that the wolves are at the door or even in our country.
  This highlights one challenge of this debate: Most of the information 
surrounding the plots and the programs is classified. The intelligence 
community has been very accommodating in providing classified briefings 
to Members of the Senate and the Congress. The issue, though, is often 
getting Members to attend or to visit with the agencies. That is why I 
believe the Senate may have to enter a closed session as we debate 
these programs, so that Members are not woefully ignorant of the 
threats America faces.
  Under consideration in the House and proposed in the Senate is the 
so-called USA FREEDOM Act, which will eliminate the essential 
intelligence this program collects. Proponents of the bill claim that 
it provides alternative ways for the intelligence community to obtain 
critical information needed to stop terrorist attacks and that it 
doesn't compromise our counterterror efforts. But let me be clear. This 
is wrong. The alternatives to the current program do not come close to 
offering the capabilities we now have that enable us to protect 
  One alternative offered by opponents is to have phone companies 
retain control of cell data and provide the NSA only the data 
responsive to searches phone companies would run on the agency's 
behalf. This isn't technologically feasible.
  At the request of the President's own Director of National 
Intelligence, the independent National Research Council examined this 
proposal, and its experts concluded that the technology does not 
currently exist that would enable a system spread among different 
carriers to replace the capabilities of the current NSA metadata 
program. Any such system would create holes in our ability to identify 
terrorist connections.
  First, phone companies don't store the data for longer than 180 days 
and oftentimes for much shorter periods, and nothing in the USA FREEDOM 
Act requires them to store it any longer. The current NSA program, 
however, stores data for 5 years, which allows the NSA to discover 
potential terrorist links during that time period. A system that keeps 
data with multiple carriers that store their data for much shorter time 
periods is close to useless in discovering terrorist network and 
sleeper cells, many of which lie in wait for years before launching an 
  Second, a system that tries to search multiple carriers and then 
collects and unifies their responses is cumbersome and time-consuming. 
In many investigations, the loss of valuable minutes, hours, and days 
may mean the difference between stopping an attack or seeing it 
  Third, data stored with phone companies rather than the NSA is more 
vulnerable to hackers who would seek to abuse queries of the stored 
  Fourth, the costs are unknown, and the American people will bear 
them--either as taxpayers if the telecom companies ask to be reimbursed 
or as consumers as the companies pass along the costs on your phone 
bill, perhaps as an NSA collection fee.
  Fifth, to those people who say that this is technologically feasible 
and that we can easily execute it, I would remind you that this is the 
Federal Government that brought you healthcare.gov.
  A second alternative offered is to pay a third-party contractor or 
quasi-private entity to store data and run the program. I would argue 
that this is untested and unworkable.
  First, the proposal would also require an indefinite stream of 
taxpayer dollars to fund it.

[[Page S2711]]

  Second, the private entity may be subject to civil litigation 
discovery orders as it may hold information relevant to cases, which 
would expose Americans' data to judicial proceedings with no connection 
to national security and without the security and privacy protections 
in place today.
  Third, a new organization will create the need for heavy security, 
top-secret clearances for employees, and strong congressional 
oversight. As more resources are devoted to such an entity, what we end 
up with is a reconstituted NSA program but at additional cost to 
taxpayers and greater threats to privacy.
  As I mentioned, I have taken the opportunity in recent months to go 
and visit the men and women who work at the NSA and FBI. I can tell you 
all that they are fine Americans with the highest character. I spent 
hours with the very small number of men and women at Fort Meade who are 
allowed to search this data. I would ask how many critics of the 
program have actually done that.
  Let's examine in detail how these men and women search this data. An 
independent Federal court regularly approves NSA's authority to collect 
and store the data in the first place. But for these men and women to 
even look at the data, it must go through a multistep process that 
includes approval by four different entities at the NSA, numerous 
attorneys at the Department of Justice, and those very same judges who 
sit on that court. Even if a search request is granted, not just anyone 
at the NSA can access the data; access is limited to this small group 
of men and women, all of whom undergo regular background checks, drug 
tests, and are subject to regular polygraphs, many of whom are military 
  To prevent abuse of the program in retrospect, searches of the data 
are automatically recorded and regularly audited by both the inspector 
general and the Department of Justice, with strict penalties for anyone 
found to have committed abuse.
  Moreover, I, the Senator from North Carolina, and other members of 
the intelligence committees of both Houses of this Congress participate 
in these reviews. This is a robust and layered set of protections for 
Americans, their privacy, and these protections would not exist under 
the proposed USA FREEDOM Act.
  There are also protections that almost definitely will not be adopted 
by private telecom providers, which some wrongly suggest might retain 
exclusive control of this data.
  These multiple safeguards are why to date these programs have a 
sterling record, with no verified instances of intentional abuse, not a 
single one.
  In conclusion, in the wake of the traitorous Snowden disclosures, 
Senator Chambliss and Senator Feinstein showed great leadership when 
they came together to defend these programs as both legal and 
effective. As Senator Feinstein wrote when she was chair of the Senate 
Intelligence Committee, to end this program will substantially increase 
the risk of another catastrophic attack in the United States. That is a 
proposition with which I wholeheartedly agree.
  I now see my colleague from the Judiciary Committee on the floor. He 
is a former U.S. attorney and State attorney general, and I wonder if 
he agrees that this program is both constitutional and does not differ 
in substantial ways from the traditional tools prosecutors can use 
against criminals while also providing adequate safeguards to American 
  Mr. SESSIONS. Madam President, that is an important question. First, 
I would like to thank the Senator for volunteering to serve in the 
forces of the United States to protect the security of our country and 
the Middle East and dangerous areas.
  We do need to protect our national security. We lost almost 3,000 
people on 9/11. The Nation came together. I was a member of the Senate 
Judiciary Committee at the time, and we evaluated what to do about it. 
We worked together in a bipartisan way and in a virtually unanimous 
agreement passed the PATRIOT Act to try to help us be more effective in 
dealing with international terrorism.
  What I have to tell you is what we were facing. Many people were 
shocked to see the improper obstacles that were placed in the way of 
our intelligence community as they sought to try to figure out how to 
identify and capture people who wanted to do harm to America. It was 
stunning. There was a wall between the CIA, which did the foreign 
intelligence, and the FBI. They could not say to the FBI: We have 
intelligence that this person might be a terrorist. The FBI has 
jurisdiction within the United States. That wall was eliminated when we 
developed these intelligence tools. And we did other things in an 
overwhelmingly bipartisan way.
  As a person who spent 15 years as a prosecutor, I would say there is 
nothing in this act that alters the fundamental principles of what 
powers investigators have to investigate crime in America.
  A county attorney can issue a subpoena from any county in America--
and they do every day by the hundreds of thousands--including subpoenas 
to phone companies for telephone toll records. Those toll records have 
the name, the address, and the phone numbers called and how many 
minutes. What is maintained in this system basically is just numbers.
  Not only can a county attorney, who is a lawyer, but also a drug 
enforcement agent and an IRS agent can issue an administrative subpoena 
on the basis that there is information in telephone toll records 
regarding John Doe that are relevant to the investigation they are 
conducting. They can get that information. It is done by law, and there 
is a written document, but that is the way it is done every day in 
America. There does not have to be a court order to get those records. 
We are talking about hundreds of thousands of subpoenas for telephone 
toll records.
  In every murder case, virtually every robbery case, every big drug 
case, the prosecutor wants to use those toll records to show the 
connection between the criminals. It is extremely valuable for a jury. 
This is part of daily law practice in America.
  To say that the NSA analysts have to have a court order before they 
can obtain a telephone toll record is contrary to everything that 
happens every day in America. I am absolutely amazed that the President 
has gone further than the law requires and is requiring some form of 
court order.
  Apparently, this bill would go even further, this FREEDOM Act. It is 
not necessary. You do not get the communications. All you get is--the 
person may be a terrorist in Yemen, and they are making phone calls to 
the United States, and you check to see what those numbers are and who 
they may have called. You might identify a cell that is inside the 
United States that it is on the verge of having another 9/11, hijacking 
another airplane to blow up the Capitol. I mean, this is real life.
  I think we only had a couple hundred queries. I think that is awfully 
low. One reason is, I am sure, we have such a burden on it.
  I would say, let's not overreact on this. Please, let's not overreact 
on this.
  Former Attorney General Mukasey, a former Federal judge himself, has 
really pushed back on this, and he believes it is the wrong kind of 
thing for us to be doing at this time.
  This is what he said:

       To impose such a burden on the NSA as the price of simply 
     running a number through a database that includes neither the 
     content of calls nor even the identity of the callers is 
     perverse. The president said that this step may be dispensed 
     with only in a ``true emergency,'' as if events unfold to a 
     musical score with a crescendo to tell us when a ``true 
     emergency'' is at hand.

  He was talking about the additional requirements the President put on 
  One more thing. This is the way the system works and has worked for 
the last 50 years--40 years at least. A crime occurs. A prosecutor or 
the DEA agent investigates. They issue a subpoena to the local phone 
company that has these telephone toll records--the same thing you get 
in the mail--and they send them in response to the subpoena. They send 
those documents. They maintain those records.
  Now the computer systems are more sophisticated. There are more phone 
calls than ever. The numbers are by the tens of millions, probably 
almost billions of calls. So they are reducing the number that they are 
maintaining in their computers--I believe Senator Cotton said it was 18 
months. Maybe

[[Page S2712]]

they abandon or they wipe out all these records. Well, an investigation 
into terrorism may want to go back 5 years.
  The government downloads the records, they maintain them in this 
secure system, and they are accessible just as they had been before but 
actually with less information than the local police get when they 
issue a subpoena.
  I believe this would be a big mistake.
  Senator Burr.
  Mr. BURR. I thank the Senator from Alabama.
  Madam President, I ask unanimous consent for 5 additional minutes on 
the majority side and 5 additional minutes on the minority side.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. BURR. Madam President, I am very curious to hear what my 
colleague Senator Rubio has to say and whether he is in agreement with 
what we have said on the floor to this point.
  Mr. RUBIO. Madam President, I think my colleagues have made an 
excellent point today in outlining all the details of how this program 
works. Let me back up and point out why we are even having this debate, 
other than the fact that it is expiring. It is because the perception 
has been created--including by political figures who serve in this 
Chamber--that the U.S. Government is listening to your phone calls or 
going through your bills as a matter of course. That is absolutely 
categorically false.
  The next time that any politician--Senator, Congressman--talking 
head, whoever it may be, stands up and says ``The U.S. Government is 
listening to your phone calls or going through your phone records,'' 
they are lying. It is not true, except for some very isolated 
instances--in the hundreds--of individuals for whom there is reasonable 
suspicion that they could have links to terrorism.
  Those of us in this culture in our society are often accused of 
having a short attention span. We forget that less than a year ago, 
Russian separatists shot down a commercial airliner armed by the 
Russians. Maybe even the Russians themselves did it. We forget that it 
was not long ago that Assad was using chemical weapons to slaughter 
people in Syria. The world moves on.
  What we should never forget is what happened here on the 11th of 
September of the year 2001. There are a number of seminal moments in 
American history that people always remember. They remember when 
President Kennedy was assassinated. Everyone in this room remembers 
where they were and what they were doing on that morning of the 11th of 
September of the year 2001 when the World Trade Center was attacked and 
the subsequent attacks happened.
  Here is the truth. If this program had existed before 9/11, it is 
quite possible we would have known that 9/11 hijacker Khalid Al Mihdhar 
was living in San Diego and was making phone calls to an Al Qaeda safe 
house in Yemen. There is no guarantee we would have known. There is no 
way we can go back in time and prove it. But there is a probability we 
would have; therefore, there is a probability American lives could have 
been saved.
  This program works as follows: If the intelligence agencies of the 
United States believe there is an individual who is involved in 
terrorist activity--a reasonable belief--and that individual might be 
communicating with people as part of a plot, they have to get an order 
that allows them access to their phone bill. The phone bill basically 
tells you when they called, what number they called, and how long the 
call was. Why does that matter? Because if I know that subject X is an 
individual who is involved in terrorism, of course I want to know whom 
they are calling. I would not be as interested in the calls to Pizza 
Hut or the local pharmacy, but I would be interested in calls overseas 
or calls to other people because they could be part of the plot as 
well. That is why this is such a valuable tool.
  My colleagues have already pointed out that if the IRS wants your 
phone bill, they just have to issue a subpoena. If virtually every 
agency--any agency of American Government--if your local police 
department wants your phone bill--in fact, if you are involved in a 
proceeding in a civil litigation and they want access to your phone 
bill because it is relevant to the case, they can just get a subpoena. 
It is part of the record. The intelligence agencies actually have to go 
through a number of hoops and hurdles, and that is fine. That is 
appropriate because these are very powerful agencies.
  I will further add that the people who are raising hysteria--what is 
the problem we are solving here? There is not one single documented 
case, not one single documented case--there is not one single case that 
has been brought to us as an example of how this program is being 
abused. Show me the story. Give the name to the world. Show us who this 
individual is who is going out there and seizing the phone records of 
Americans improperly. There is not one example of that--not one. And if 
there is, that individual should be fired, prosecuted, and put in jail. 
The solution is not to get rid of a program at a time when we know the 
risk of homegrown violent extremism is the highest it has ever been.

  We used to be worried about a foreigner coming to the United States 
and carrying out an attack, and then we were worried about an American 
traveling abroad and coming back and carrying out an attack. Now we are 
worried about people who may never leave here, who are radicalized 
online and carry out an attack.
  This is not theoretical. Just last weekend two individuals who were 
inspired by ISIS tried to carry out an attack in the State of Texas. 
One day--I hope that I am wrong--there will be an attack that is 
successful. The first question out of everyone's mouth will be: Why 
didn't we know about it? And the answer better not be because this 
Congress failed to authorize a program that might have helped us know 
about it. These people are not playing games. They don't go on these 
Web sites and say the things they say for purposes of aggrandizement. 
This is a serious threat, and I hope we reauthorize this bill.
  Mr. BURR. Madam President, I thank my colleagues for their 
participation, and I thank my colleagues on the other side of the aisle 
for their accommodation.
  I will conclude by saying that in the very near future this Congress 
will be presented two choices: to reauthorize a program that works or 
to roll back our tools to pre-9/11. I don't believe that is what the 
American people want, and I don't believe that is what Members of 
Congress want.
  I urge my colleagues to become educated on what this program is, what 
it does, and more importantly, how effective it has been implemented.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.