[Congressional Record Volume 161, Number 73 (Wednesday, May 13, 2015)]
[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 
       ``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. 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
       ``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 
       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 
       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 
       ``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 
       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. 
       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'' 
       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 
       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 
       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.