[Congressional Record Volume 161, Number 69 (Thursday, May 7, 2015)]
[Senate]
[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
attacks.
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
year.
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
Qaeda?
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
action.
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
Americans.
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
attack.
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
succeed.
Third, data stored with phone companies rather than the NSA is more
vulnerable to hackers who would seek to abuse queries of the stored
metadata.
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
veterans.
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
privacy.
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
it.
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.
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