[Congressional Record Volume 161, Number 73 (Wednesday, May 13, 2015)]
[Senate]
[Pages S2821-S2830]
PATRIOT Act
Mr. CORNYN. Mr. President, in February, the Director of the National
Counterterrorism Center estimated that nearly 20,000 foreign fighters
had joined ISIS or other related groups in Syria. Among those, some
3,000 were from Western countries. In other words, many of them either
had American passports or those that are part of the visa waiver
program and could travel, really, without anything other than that
passport in the country. Over 150 were from the United States.
Just last week, in describing the widespread nature of this growing
threat, FBI Director James Comey said that the FBI is working on
hundreds of investigations in the United States, hundreds of
investigations. In fact, according to Comey, all 56 of the FBI's field
divisions now have open inquiries regarding suspected cases of
homegrown terrorism--again, not people coming from Syria or Afghanistan
or someplace in the Middle East, these are often Americans who have
become radicalized due to the use of social media or the Internet--much
as 5 years ago we saw at Fort Hood, TX, a major in the U.S. Army, Nidal
Hasan, who had been radicalized by a cleric, Anwar al-Awlaki.
Major Hasan actually pulled out his weapon and killed 13 people, 12
uniformed military, 1 civilian, and shot roughly 30 more in a terrible
terrorist attack at Fort Hood, TX.
So today we are not just worried about a major attack on a
significant cultural or economic hub, we also have to worry about ISIS-
inspired terrorists all around the country, even as we witnessed in my
home State of Texas just on May 3.
When you begin to look at the story--that I will ask to be made part
of the Record--written by the New York Times on May 11, 2015, it
explains how this new threat of homegrown terrorism is inspired. I will
quote a few pieces of it:
Hours before he drove into a Texas parking lot last week
and opened fire with an assault rifle outside a Prophet
Muhammad cartoon contest, Elton Simpson, 30, logged onto
Twitter.
``Follow @_AbuHu55ain,'' Mr. Simpson posted, promoting a
Twitter account believed to belong to Junaid Hussain, a young
computer expert from Birmingham, England, who moved to Syria
two years ago to join the Islamic State and has become one of
the extremist group's celebrity hackers.
Well, there is a question--as the article goes on to say--whether or
not Mr. Simpson and his colleague, who came, I believe, from Phoenix,
AZ, and went on to Garland, TX, to carry out this attack--whether they
were actually recruited ahead of time by ISIL or whether ISIL just
claimed credit after the fact. But the article goes on to say:
It was the first time that the terror group had tried to
claim credit for an operation carried out in its name on
American soil. . . . Yet Mr. Simpson appears to have been
part of a network of Islamic State adherents in several
countries, including the group's hub in Syria, who have
encouraged attacks and highlighted the Texas event as a
worthy target.
Mr. President, I ask unanimous consent to have printed in the Record,
following my remarks, this New York Times article from May 11, 2015,
and a Wall Street Journal article from May 12, 2015, by Michael B.
Mukasey.
So what FBI Director Comey has expressed concern about recently is
apparently very real. It is as real as the daily newspaper recounting
the attack on May 3 in Garland, TX, of all places.
Terrorists are sending a clear signal to those in the United States
and other Western countries: If you can't fight us abroad, we are going
to bring the fight to you in your own country.
This heightened threat environment has led Pentagon officials to
raise the security level at U.S. military bases. The last time the
threat level was raised to this level was the 10th anniversary of the
September 11 attacks.
I still remember when the former admiral, Bobby Inman, who served for
a long time in the Navy and then also in the intelligence community,
was asked about 9/11. He said: It wasn't so much a failure of
intelligence, as it was a failure of imagination.
Nobody imagined that terrorists would hijack a plane and fly it into
one of our Nation's highest skyscrapers, thus, in the process, killing
approximately 3,000 people.
So we need to remember not to have a failure of imagination when it
comes to the tactics used by terrorists and those who inspire them
abroad. Remarks like those from Director Comey and the Director of our
National Counterterrorism Center are certainly troubling ones for us to
hear, and it counsels caution.
While the United States has been mostly successful in thwarting
attacks on our homeland since 9/11, the threats are still very real. In
fact, the terrorist threat has evolved and become more complex in
recent years.
In Texas, we rightly recognize that the role of government should be
constrained to focus on core functions. At the Federal level, of
course, this means things such as passing a budget. But surely it also
means protecting our country and its security and the security of the
American people.
That brings me to some business that we are going to have to conduct
here in the Congress sometime within the next couple of weeks before
certain provisions of the U.S. PATRIOT Act expire on June 1. I believe
that if we allow these provisions to expire, our homeland security will
be at a much greater risk. So I think we need to talk a little bit
about it and explain not only the threat but what our intelligence
community and our national security officials are doing, working with
Congress and the administration, to make sure Americans are safe, and
the PATRIOT Act is part of it.
I recognize there are many who perhaps haven't read the PATRIOT Act
or whose memories have perhaps dimmed since those terrible events on 9/
11 and who think we don't need the PATRIOT Act. But I would argue that
the PATRIOT Act serves as a tool for intelligence and law enforcement
officials to protect our Nation from those who are seeking to harm us.
Three of those useful tools will expire at the end of the month,
including section 215, which allows the National Security Agency to
access certain types of data, including phone records.
[[Page S2823]]
There has been a lot of misunderstanding and, frankly, some of it
downright deceptive, about what this does, when, in fact, section 215
is a business records collection provision that happens to be applied
to collecting phone records but not the content of phone records. This
is one of the misleading statements made by some folks who think we
ought to let this provision expire.
Right now, under current law, which is set to expire June 1, our
intelligence community can get basically three types of information
about a phone record: the calling and receiving number, the time of the
call, and the duration. That is it--no content, no names or addresses.
You can't even get cell tower identification that would tell one where
the call is coming from.
Much has been said about this program, and, as I said, much of it
misleading or downright false, but I want to focus now on the oversight
that is built into this program because I think Americans understand we
need to take steps in a dangerous world to keep the American people
safe, but they also value their privacy, and justly so. We all do. So
it is important to remind the American people and our colleagues as we
take up this important provision of law about what we have already
built into the law to protect the privacy of American citizens who are
not engaged in any communication with foreign terrorists or being
inspired by foreign terrorists to commit acts of terrorism here in the
homeland.
Let me talk about the barriers we have created in the law for an
NSA--National Security Agency--analyst to overcome before seeing any
real information from this data. First, for the NSA to have access to
phone records at all--at all--a special court must approve an order
requiring telephone companies to provide those call records to the
Agency. That order has been in place since roughly 2006, where the
Foreign Intelligence Surveillance Court, the specialized court created
by Congress for this purpose, has issued an order requiring the
telephone companies to turn over these call records--again, no content,
no name and address, but merely the sending number, the receiving
number, and the duration. That is the core information which is
required.
It is important to point out that these records include only the most
basic limited information. They do not include the information I
suggested earlier--the content, names and addresses, and the like.
So the National Security Agency is not, as some have assumed wrongly,
able to retrieve old phone conversations. They do not collect that sort
of information, nor are they able to simply listen in on any American's
phone conversations under this authority. That would be a violation of
the protections Congress has put in place under the provisions of the
PATRIOT Act.
Before an analyst at the NSA can even search for or query the
database, they must go through even more controls, and these are
important. To be granted the ability to search the database, the
analyst must demonstrate to the FISA Court--the Foreign Intelligence
Surveillance Court created by Congress for this purpose--that there is
a reasonable, articulable suspicion that the phone number is associated
with terrorism.
This is similar--not the same but similar--in many respects to the
protections offered in a criminal case under the Fourth Amendment to
the Constitution where law enforcement agencies would have to come in
and establish probable cause that a crime has been committed before a
search would be allowed. But since this is an investigation into
foreign-induced terrorist activity, the standard Congress set was a
reasonable, articulable suspicion that the phone number is associated
with terrorism. If the court determines that standard has been met,
they can grant access to the conversation but not under any other
circumstance.
If the NSA believes the phone number belongs to someone who intends
to attack our country, the Agency must go back to court another time to
be granted other abilities to surveil that individual.
In addition to these checks and balances between the National
Security Agency and the courts, all three branches of government have
oversight over this program. And strong oversight of the intelligence
community is absolutely essential to safeguarding our freedoms and our
liberty.
Because parts of this program are by and large classified, you are
not going to hear public debates about it. Indeed, that puts defenders
of the program at some disadvantage to those who attack it--sometimes
in a misleading or deceptive sort of way--because it is very difficult
to counter that with factual information when they are talking about a
classified program, or parts of which are classified. It is important
that our enemies don't know exactly what we are doing because then they
can wire around it.
We live, of course, in a world with many threats, as I said, many of
them in our backyard. Many of them can be thwarted with good
intelligence and law enforcement. And I make that distinction on
purpose--intelligence and law enforcement. Law enforcement--as we
learned with 9/11, we can't just treat terrorism as a criminal act. It
is a criminal act, but if we are going to stop it, we need access to
good intelligence to thwart it before that act actually occurs. It is
not enough to say to the American people: Well, we will deploy all of
the tools available to law enforcement to prosecute the person who
murders innocent people. We need to keep the commitment to protect them
from that innocent slaughter in the first place, and the only way we do
that is by using legitimate tools of intelligence, such as this program
I am discussing.
Earlier this year, for example, the United States frustrated a
potential attack by a man from Ohio. He was an ISIS sympathizer and had
plans to bomb the building we are standing in today, the U.S. Capitol.
That potential attack was thwarted by the use of good intelligence
under the limitations and strictures and procedures I described a
moment ago. Over the past 2 years, the FBI has told us they have
stopped 50 American citizens from traveling overseas and joining the
Islamic State and then coming back. So clearly the intelligence
community has a vital role to play in safeguarding the American people
in our homeland.
Some in the intelligence community have said the bulk data collection
I have described here briefly has led to a safer United States, and it
is because of programs such as these that we are much better off than
we were pre-9/11. That is very important because the last thing I would
think we would want to do here in Congress is to return us to a pre-9/
11 mentality when it comes to the threat of terrorism both abroad and
here at home and to make it harder for our national security personnel
to protect the American people.
I believe the portion of the PATRIOT Act in question provides our
intelligence community with the tools they need in order to effectively
protect all Americans.
I have been briefed on this program. We just had a briefing yesterday
by the Office of the Director of National Intelligence, by the FBI
Director, by DOJ personnel, and by the leader of the National Security
Agency. It was held downstairs in a secure facility because, as I said,
much of it was classified. Much of it we can't talk about without
alerting our adversaries to ways to circumvent it. But all responsible
Members of Congress have taken advantage of the opportunity to learn
about how this program works as part of our oversight responsibilities.
I remain convinced that this program, like many others, has helped to
keep us safe while using appropriate checks and balances to ensure that
our liberties remain intact. And Congress, by maintaining strong
oversight of these and other government programs, can have a win-win
situation that both protects American lives and protects American
liberties.
Mr. President, I want to draw my colleagues' attention to an opinion
piece that appeared today in the Wall Street Journal that was written
by Michael B. Mukasey, who, of course, was a former U.S. district judge
and more recently Attorney General of the United States from 2007 to
2009. General Mukasey writes in this article about the Second Circuit
opinion that has prompted so much recent discussion about section 215
of the PATRIOT Act and the bulk metadata collection process I described
a moment ago. I think he makes some very important points.
[[Page S2824]]
First of all, he makes the important point that it is a good thing
Congress has created a special Foreign Intelligence Surveillance Court
because the Second Circuit Court of Appeals, no matter how good they
are as judges, simply doesn't have the experience to deal with parsing
the law on intelligence matters and things such as this 215 provision I
talked about a moment ago.
He makes the important point that intelligence by its nature is
forward-looking and our criminal justice system, which is what most
courts have experience with, is backward-looking--in other words,
something bad has already happened and the police and investigators and
prosecutors are trying to bring somebody to justice for committing a
criminal act. But our intelligence community is supposed to look
forward and to help prevent those terrible accidents or incidents from
occurring in the first place.
The second point General Mukasey makes in this article is that the
Second Circuit panel of judges assumes that many Members of Congress
are simply unaware of the provisions of the PATRIOT Act I mentioned
earlier--section 215, this metadata collection--which is a terrible and
glaring mistake on the part of the Second Circuit panel.
As I pointed out yesterday, just as we have done many times
previously, Members of the Senate and the Congress generally have
regular or at least periodic briefings on these intelligence programs
as part of our oversight responsibilities. For the Second Circuit panel
to suggest that Congress didn't know what it was talking about when it
authorized these programs and when it wrote this provision of the law
is simply erroneous.
The third point General Mukasey makes is that the judges didn't even
stop the program in the first place. So it makes one really wonder why
they handed down their opinion about 3 weeks before the expiration of
this provision, when Congress is going to have to take up this matter
anyway, unless they wanted to have some impact on our deliberations
here.
What Attorney General Mukasey suggested, I think, is good advice.
There needs to be an appeal to the Second Circuit Court en banc and
then to the U.S. Supreme Court to get a final word. We don't need to
settle on what he calls a ``Rube Goldberg'' procedure that would have
data stored and searched by the telephone companies, he says, whose
computers can be penetrated and whose employees have neither the
security clearance nor the training of the NSA staff.
Mr. President, I commend this article to my colleagues.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, May 11, 2015]
Clues on Twitter Show Ties Between Texas Gunman and ISIS Network
(By Rukmini Callimachi)
Hours before he drove into a Texas parking lot last week
and opened fire with an assault rifle outside a Prophet
Muhammad cartoon contest, Elton Simpson, 30, logged onto
Twitter.
``Follow @_AbuHu55ain,'' Mr. Simpson posted, promoting a
Twitter account believed to belong to Junaid Hussain, a young
computer expert from Birmingham, England, who moved to Syria
two years ago to join the Islamic State and has become one of
the extremist group's celebrity hackers.
This seemingly routine shout-out is an intriguing clue to
the question of whether the gunmen, Mr. Simpson and Nadir
Soofi, 34, both of Phoenix, were acting in concert with the
Islamic State, also known as ISIS or ISIL, in carrying out an
attack outside a community center in Garland, Tex. The
Islamic State said two days later that the two men, who were
killed by officers after opening fire, were ``soldiers of the
Caliphate.'' It was the first time that the terror group had
tried to claim credit for an operation carried out in its
name on American soil.
As the gunmen were driving toward the Curtis Culwell
Center, Mr. Hussain logged onto Twitter himself from half a
world away, firing off a series of posts in the hour before
the attack began at 7 p.m. on May 3. One message posted to
his account about 5:45 p.m. seemed to predict imminent
violence: ``The knives have been sharpened, soon we will come
to your streets with death and slaughter!''
After the attack, Mr. Hussain was in the first wave of
people who praised the gunmen, before his account was
suspended.
Law enforcement officials have not presented any conclusive
evidence that the Islamic State planned or directed the
attack. Yet Mr. Simpson appears to have been part of a
network of Islamic State adherents in several countries,
including the group's hub in Syria, who have encouraged
attacks and highlighted the Texas event as a worthy target.
Counterterrorism officials say the case shows how the
Islamic State and its supporters use social media to
cheerlead for attacks without engaging in the secret
training, plotting and control that has long characterized Al
Qaeda. But a close look at Mr. Simpson's Twitter connections
shows that he had developed a notable online relationship
with some of the Islamic State's best-known promoters on the
Internet, and that they actively encouraged such acts of
terror.
Speaking of the Texas case last week, James B. Comey, the
director of the Federal Bureau of Investigation, said the
distinction between an attack ``inspired'' by a foreign
terrorist group and one ``directed'' by the group ``is
breaking down.''
``It's not a useful framework,'' he added.
Mr. Simpson was radicalized years before the Islamic State
announced in 2014 that it was creating a caliphate, a unified
land for Muslims, and drew global attention for territorial
gains and brutal violence. He was investigated by the F.B.I.
starting in 2006 and was sentenced to probation in 2011 for
lying to investigators. But like many young Muslims drawn by
the sensational image of the Islamic State, he
enthusiastically joined its virtual community of supporters.
An analysis of Mr. Simpson's Twitter account by the SITE
Intelligence Group, which tracks extremist statements, found
that Mr. Simpson followed more than 400 other accounts,
including ``hardcore I.S. fighters from around the world.''
They included an alleged British fighter for the Islamic
State, known as Abu Abdullah Britani, who according to SITE
is believed to be Abu Rahin Aziz, a radical British national
who skipped bail to join the terror group. They also included
an alleged American fighter called Abu Khalid Al-Amriki and
numerous female Islamic State jihadists.
Many of Mr. Simpson's posts announced the new Twitter
handles of Islamic State members whose accounts the social
media company had suspended, messages commonly called
``shout-outs.''
``He was taking part in shout-outs of ISIS accounts that
were previously suspended, and this shows a pretty deep
involvement in the network online,'' says J. M. Berger, a
senior fellow at the Brookings Institution and co-author of a
book about the Islamic State. ``He was wired into a
legitimate foreign fighters network.''
Starting last fall, the Islamic State has repeatedly called
for attacks in the West by supporters with no direct
connection to its core leadership, and there have been at
least six attacks in Europe, Canada and Australia by gunmen
who appeared to have been inspired by the group. Each
attacker left an online trail similar to that of Mr. Simpson,
though not all were in contact with Islamic State operatives
in Syria.
A review of Mr. Simpson's Twitter account shows that he
interacted not just with sympathizers of the Islamic State,
but also with fighters believed to be in Syria and Africa.
Some of these fighters later posted on Twitter details of Mr.
Simpson's biography not yet in the public sphere, suggesting
that he had shared details about his life with them.
``The thing that clearly stands out if you peruse the Texas
shooter's timeline is his third to last tweet,'' the one
promoting Mr. Hussain, said Daveed Gartenstein-Ross, a senior
fellow who researches extremism at the Foundation for the
Defense of Democracies and who shared a PDF of Mr. Simpson's
Twitter history.
Veryan Khan, who helps run the Terrorism Research and
Analysis Consortium, said that Mr. Simpson probably urged
others to follow Mr. Hussain in order to draw broader
attention to his forthcoming attack. ``He wanted to make sure
everyone in those circles knew what he'd done,'' she said.
``It was attention-seeking--that's what it looks like,''
added Ms. Khan, whose organization tracks some 5,000 Islamic
State figures and supporters.
While still living in Birmingham, Mr. Hussain rose to
notoriety as a hacker working under the screen name Tr1Ck,
and he was believed to be a core member of what was called
TeaM p0isoN. The team claimed a string of high profile
cyberattacks, hacking into a Scotland Yard conference call on
combating hackers and posting Facebook updates to the pages
of its chief executive, Mark Zuckerberg, and former President
Nicolas Sarkozy of France.
Mr. Hussain was eventually arrested, and he served a six-
month prison sentence before traveling to Syria. He has since
been linked to a number of Islamic State hacking attacks
overseas, though some security officials have doubts about
his role.
Another well-known promoter of the Islamic State who
engaged with Mr. Simpson was a jihadist known on Twitter as
Mujahid Miski, believed to be Mohamed Abdullahi Hassan, a
Somali-American from Minnesota. Though Mr. Hassan lives in
Somalia, he has emerged as an influential recruiter for the
group.
On April 23, the account Mujahid Miski shared a link on
Twitter to a listing for the Muhammad cartoon contest and
goaded his followers to attack it. ``The brothers from the
Charlie Hebdo attack did their part. It's time for brothers
in the #US to do their part,'' he wrote. Among the nine
people who
[[Page S2825]]
retweeted his call to violence, according to SITE, was Mr.
Simpson.
Three days later, Mr. Simpson reached out to Mujahid Miski
on Twitter, asking him to message him privately. Whether they
actually communicated, or what they may have said, is not
publicly known. Minutes before Mr. Simpson arrived at the
cartoon event in Garland and began shooting, he went on
Twitter one last time to link the attack to the Islamic
State. ``The bro with me and myself have given bay'ah to
Amirul Mu'mineem,'' he wrote, using the vocabulary of the
Islamic State to say that they had given an oath of
allegiance to the Emir of the Believers--the leader of the
Islamic State, Abu Bakr al-Baghdadi.
``May Allah accept us as mujahedeen,'' he wrote, adding the
hashtag ``#TexasAttack.''
Among those who retweeted this last post was Mr. Hussain,
the Islamic State hacker in Syria. ``Allahu Akbar!!!!'' he
wrote. ``2 of our brothers just opened fire at the Prophet
Muhammad (s.a.w) art exhibition in Texas!'' he added, using
the Arabic abbreviation for ``peace be upon him.''
After Mr. Simpson's death, Mujahid Miski tweeted a series
of posts, calling Mr. Simpson ``Mutawakil,'' ``One who has
faith,'' a variation on Mr. Simpson's Twitter handle,
``Atawaakul,'' meaning ``To have faith.''
``I'm gonna miss Mutawakil,'' Mujahid Miski wrote. ``He was
truly a man of wisdom. I'm gonna miss his greeting every
morning on twitter.''
____
[From the Wall Street Journal, May 12, 2015]
Impeding the Fight Against Terror
The appeals-court ruling on surveillance will have damaging
consequences if Obama doesn't appeal
(By Michael B. Mukasey)
Usually, the only relevant objections to a judicial opinion
concern errors of law and fact. Not so with a federal appeals
court ruling on May 7 invalidating the National Security
Agency's bulk collection of telephone metadata under the USA
Patriot Act.
Not that the ruling by the three-judge panel of the Second
Circuit in New York lacks for errors of law and fact. The
panel found that when the Patriot Act, passed in the
aftermath of 9/11, permitted the government to subpoena
business records ``relevant'' to an authorized investigation,
the statute couldn't have meant bulk telephone metadata--
consisting of every calling number, called number, and the
date and length of every call.
That ends up subpoenaing everything, the panel reasoned,
and what is ``relevant'' is necessarily a subset of
everything. In aid of this argument the panel summons not
only the dictionary definition of an investigation, but also
the law that relates to a grand-jury subpoena in a criminal
case, which limits the government to ``relevant''
information.
Yet the judicial panel failed to consider the purpose of
the statute it was analyzing. The Patriot Act concerns
intelligence gathering, which is forward-looking and
necessarily requires a body of data from which potentially
useful information about events in the planning stage may be
gathered. A grand jury investigation, by contrast, is
backward-looking, and requires only limited data relating to
past events. A base of data from which to gather intelligence
is at least arguably ``relevant'' to an authorized
intelligence investigation.
Equally serious an error is the panel's suggestion that
many, perhaps most, members of Congress were unaware of the
NSA's bulk metadata collection when they repeatedly
reauthorized the statute, most recently in 2011. The judges
suggest that an explanation of the program was available only
in ``secure locations, for a limited time period and under a
number of restrictions.'' In addition to being given briefing
papers, lawmakers had available live briefings, including
from the directors of the FBI and the National Intelligence
office.
In any event, no case until the judicial panel's ruling
last week has ever held that a federal tribunal may engage in
telepathic hallucination to figure out whether a statute has
the force of law.
The panel adds that because the program was highly
classified, Congress didn't have the benefit of public
debate. Which is to say, no truly authorized secret
intelligence-gathering effort can exist unless we let in on
the secret those from and about whom the intelligence is to
be gathered. Overlooked in this exertion is the Founders'
foresight about the need for secrecy--expressed in the body
of the Constitution in the requirement that each legislative
house publish a journal of its proceedings ``excepting such
Parts as may in their Judgment require Secrecy.''
But isn't the misbegotten ruling by this trio of federal
judges correctable on appeal? Or won't it be made moot
because the Patriot Act must be reauthorized by June 1 and
Congress will either enact substitute legislation, or let the
statute lapse, or simply reauthorize it with full knowledge
of how the program works? Here the Second Circuit's opinion
is problematic in ways not immediately apparent.
The judges didn't reverse the lower-court opinion upholding
the NSA data-collection program and order the program
stopped. Rather, the panel simply vacated that opinion and
sent the case back to the lower court to decide whether it is
necessary to stop the program now. By rendering its order in
a non-final form, the panel made it less likely that the
Supreme Court would hear the case even if asked, because the
justices generally won't take up issues that arise from non-
final orders.
Moreover, the opinion tries to head off the argument that
if Congress reauthorizes the Patriot Act in its current form,
lawmakers will have endorsed the metadata program. The panel
writes: ``If Congress fails to reauthorize Section 215
itself, or re-enacts Section 215 without expanding it to
authorize the telephone metadata program, there will be no
need for prospective relief, since the program will end.''
That is, unless Congress adopts the panel's view of what
Congress has done, rather than its own view of what it has
done, the program must end.
Then there is the opinion's timing. The case was argued
eight months ago. This opinion, or one like it, easily could
have been published in time for orderly review by the Supreme
Court so the justices could weigh matters arguably critical
to the nation's security. Or the panel could have followed
the example of the D.C. Circuit and the Ninth Circuit--which
have had cases involving the NSA's surveillance program
pending for months--and refrained from issuing an opinion
that could have no effect other than to insert the views of
judges into the deliberations of the political branches.
What to do? An administration firmly committed to
preserving all surveillance tools in a world that now
includes al Qaeda, Islamic State and many other terror
groups, would seek a quick a review by the Supreme Court. But
President Obama has already stated his willingness to end
bulk collection of metadata by the government. Instead, he
wants to rely on a Rube Goldberg procedure that would have
the data stored and searched by the telephone companies
(whose computers can be penetrated and whose employees have
neither the security clearance nor the training of NSA
staff).
The government, under Mr. Obama's plan, would be obliged to
scurry to court for permission to examine the data, and then
to each telephone company in turn, with no requirement that
the companies retain data and thus no guarantee that it would
even be there. These constitute burdens on national security
with no meaningful privacy protection.
The president's plan would make protecting national
security more difficult. We would all have been better off if
the Second Circuit panel had avoided needless complication
and instead emulated the judicial modesty of their Ninth
Circuit and D.C. Circuit colleagues.
Mr. CORNYN. I yield the floor to the majority leader.
The PRESIDING OFFICER. The majority leader.
[...]
