[Congressional Record Volume 161, Number 88 (Wednesday, June 3, 2015)]
[Pages S3651-S3654]

                            USA Freedom Act

  Mr. MERKLEY. Mr. President, yesterday we passed the USA FREEDOM Act, 
and it was quickly signed by our President because it was so important 
to put it into place. It contained two items that I want to draw 
particular attention to. One is that there should be no secret spying 
on U.S. citizens here in the United States of America. The second is 
that there should be no secret laws here in the United States of 
  These two items are very closely connected together. Our Nation was 
founded upon the principles of liberty and freedom. Fundamental to the 
exercise of those principles is the right to privacy, to be free from 
unreasonable intrusions. This right is central to all other rights 
protected in the Constitution, especially to the freedom of speech, the 
freedom of assembly, and the freedom to petition our Government.
  Our sense of privacy and to be secure in our homes and secure with 
our records goes back to common law in England. It was in 1767 that the 
Earl of Chatham, when he was debating the cider tax, said:

       The poorest man may in his cottage bid defiance to all the 
     forces of the Crown. [His cottage] may be frail, its roof may 
     shake; the wind may blow through it; the storms may enter, 
     the rain may enter, but the King of England cannot enter.

  Certainly, that is the spirit that infused the Fourth Amendment of 
our Constitution. That amendment says: ``The right of the people to be 
secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated. . .''
  We need to ensure that our security apparatus, our law enforcement, 
and our intelligence officers have the tools they need to enact the 
efforts to keep America secure. But in the process, we cannot sacrifice 
our constitutional rights as American citizens. There should be no 
secret spying on Americans and no secret law in a democracy. So how did 
we end up in that place--the place that I am so glad we took a major 
stride toward remedying yesterday?
  It goes back to section 215 of the PATRIOT Act. This Act was passed 
after the attacks on 9/11. I was not here in the Senate, but it said 
that our government can access business records or tangible things if 
it shows that there is a statement of facts showing that there are 
reasonable grounds to believe that those things are relevant to an 
authorized investigation.
  That certainly mimics the second half of the Fourth Amendment, which 
goes on to say that ``no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.''
  The responsibility of the government was to prepare a statement of 
facts, and those statements of facts had to show reasonable grounds and 
had to show that the things sought were relevant to an authorized 

[[Page S3652]]

Each one of those words had a significant influence in constraining the 
potential for the government to collect business records or, 
particularly, as we came to learn, to collect phone records on American 
citizens. However, a problem developed, and that is that a secret court 
was created here in America, a secret court called the FISA Court, or 
the Foreign Intelligence Surveillance Court. That secret court could 
interpret the common language of the law, and its interpretations were 
not disclosed to the U.S. public. So in that process of taking the 
language of the law that has a clear set of standards and then 
interpreting it, the court created secret law--secret law that was not 
disclosed to the citizens of the United States.
  This is an enormous risk to democracy--a court with no scrutiny and, 
quite tragically, no presentation of opposing views from the position 
presented by the government. What kind of court is it that allows no 
presentation of an opposing view to the view of the government? That is 
a court that can create tyranny of the government by secretly 
reinterpreting the plain language of the law. That is exactly what 
  Let's think about how this then went forward. Back in December 2012, 
I proposed an amendment, and that amendment said that there can be no 
secret law in America; that if the FISA Court makes an interpretation 
of terms, that interpretation of those terms has to be made public.
  Here we have a representation of the importance of shining a light on 
that secret court, disclosing to the public how it interprets the law 
and thereby changes the meaning of the law. And what did this court do? 
This court tipped those terms and said ``authorize investigation.'' 
That can mean anything that happens in the future, which, of course, 
makes that term meaningless. It means that there is no authorized 
investigation. It is just a fictional possibility of the future--
nothing existing right now. And then it took the term ``relevant to an 
authorized investigation,'' and it said that relevant is irrelevant. 
You have to show no connection, one or two places removed, in order to 
secure the right to access the papers, the business records, the phone 
records of U.S. citizens.
  So this secret court here in America, the FISA Court, created secret 
law, wiped out the plain meaning of section 215, put its own 
interpretation in place, and told no one. This is absolutely 
unacceptable. That is why I put forward the amendment in December of 
2012 that there is no secret law amendment, that this is unacceptable, 
that we must have disclosure of whatever that court finds so that the 
public can be informed, so that legislators can be informed, so that we 
can have a debate on whether that interpretation is consistent with 
what the legislature intended--what the Senate and the House intended--
and consistent with what the President intended when he signed that 
  That amendment did not get a debate at that time in 2012, but the 
chair of the Intelligence Committee pledged to work with me to ask our 
government to declassify those opinions of the FISA Court, and she did. 
I thank very much the senior Senator from California, the former chair 
of the Intelligence Committee, for her help in doing that. And some of 
those records, some of those opinions, and some summaries of the 
interpretation of the law were declassified. That was a step forward, 
but it should not be dependent on the whim of the executive branch as 
to whether secret law exists in our country.
  So I continued to press forward. And then we had a situation occur. 
In June 2013, Edward Snowden disclosed the existence of the cell phone 
program. I could not explain in December of 2012 why it was so 
important to end secret law, but after Edward Snowden's disclosures, I 
could explain it.
  In fact, when the National Security Agency chief, Keith Alexander, 
was testifying, which was shortly after that disclosure, I proceeded to 
pull out my cell phone and ask the chief: What authorized investigation 
gives you the authority under section 215 to access my, Senator 
Merkley's, cell phone records? He was unable to answer that question 
but said he would seek legal consultation in order to explain what 
investigation showed that there was a relevant connection and what 
statement of facts would justify it. But I never got an answer because 
there was no answer because the government was collecting everything 
under this secret reinterpretation of law.
  Yesterday, we ended the era of secret law in America. Yesterday, my 
no secret law act was incorporated into the USA FREEDOM Act and was 
signed by the President of the United States. This law says the 
executive branch must declassify opinions of the FISA Court or, if they 
find that the exact opinion poses a security risk because of details 
enclosed therein, must declassify summaries or at a minimum must 
summarize the significant constructions and interpretations of law 
found by the FISA Court. That is the heart of it. We are not asking 
that classified information about facts of a case that could endanger 
our national security be disclosed. We are asking that interpretations 
and constructions of law be disclosed so that we have no secret law in 
America, and that is what is required by the act we passed yesterday.
  In conclusion, we must not have secret laws in America. We must not 
have a secret court that has no opposing point of view presented. And 
when it makes interpretations of law, it must be disclosed to American 
citizens, who have every right as citizens to know what the law means 
and to be able to argue whether they like that interpretation, dislike 
it, think the law should be supported or the law should be changed.
  May we never again allow a secret court to authorize secret spying on 
U.S. citizens under the cover of secret law.
  What we did yesterday--incorporating the no secret law act into the 
USA FREEDOM Act--was important. To paraphrase William Pitt, the 
humblest American, no matter his wealth or her income or his status 
within the community--that no American may be in a situation where he 
may be unable to say to the U.S. Government: Here in my home, within 
these walls, however modest, you, the government, may not enter.
  I thank the Presiding Officer.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Mr. President, I ask unanimous consent that the Senate 
remain in session for at least 5 additional minutes while I speak.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. BURR. Mr. President, I couldn't let the statements that were just 
made go without a degree of fact check. There is no secret court. A 
secret court means we don't know it exists. Every Member of the U.S. 
Senate and every American knows that the FISA Court exists. The FISA 
Court exists because when the Senate of the United States takes up 
classified, top-secret legislation, we shut these doors, we clear the 
Gallery, and we cut the TV off because it can't be heard in public. As 
a matter of fact, every court in the country operates in secret when 
they have sensitive information that can't be shared.
  I wish my colleague would stay.
  The information can't be shared because it can't be public. There are 
some things that don't meet that classification.
  And to get up here and talk about secret courts and secret laws--we 
pass the laws. The courts enforce the laws, and they are challenged. We 
have committees and Members who do oversight. It is unfactual to stand 
on this floor and say we have secret courts and secret laws. That is 
why the Senate and the House made a mistake this week.
  If the Senator were really concerned about privacy, my friend would 
be on the floor arguing that we eliminate the CFPB, a Federal agency 
created--not even funded by Congress--that collects every piece of 
financial transaction on the American people today. They get every data 
point from credit card companies and the credit bureau, they search the 
student loan information, and they download all of that into metadata 
within the CFPB. No Member is down here complaining about that. That is 
the greatest intrusion of privacy on the American people that could 
ever happen. It was known upfront, so they made sure it wasn't funded 
by Congress and made sure we didn't have any oversight 
responsibilities. That is why they put it under the guidance of the 
Federal Reserve.
  The President of the United States could have ended section 215 at 

[[Page S3653]]

time. He had the power. But the President understands that this program 
works and that there was public pressure to move this data from the NSA 
to the telecom companies, which is probably a greater concern about 
privacy than to have this controlled and supervised within the NSA.
  The Senator mentioned Edward Snowden--a traitor to the United States. 
My colleague held him up as though he were a prize because he had come 
out with this publicly. What do the American people think when we come 
out here and take some of the most sensitive information and suggest 
everybody ought to know it? The American people look at us and ask us 
to keep them safe and do whatever is within the law to accomplish that.
  And there is one thing that has never been contested on section 215: 
It lived within the letter of the law or it lived within the letter of 
the Presidential directive.
  We had a debate, and that is behind us. But to come out here and 
suggest that there is a secret court and that there are secret laws and 
that yesterday they eliminated all of that--no, they didn't. No 
administration in their right mind is going to publicly release those 
classified and top-secret documents that go to the FISA Court because 
it would put Americans and foreigners at risk.
  I have tried to explain to my colleagues that terrorists are not good 
people. We can't hug them and all of a sudden change their intent. They 
want to kill people. And in most cases, we don't find them through 
association with Boy Scouts; we find them by actually putting agents 
into a system where they work sources and collect intelligence. Why 
would we go out and give terrorists the roadmap of how we do things?
  I will end on this. As everyone can tell, when somebody gets up and 
talks about something that just is not true, it can't go without 
  What we have done in the last 2 months is given every terrorist in 
the world a roadmap as to exactly how the United States picks up 
individuals in the United States who might communicate with terrorists 
  I will say for the last time what section 215 did. Section 215 was a 
database that stated the NSA--the only way that any number could ever 
be queried was if we had a foreign telephone number that we knew was a 
terrorist telephone number, we could go to the FISA Court and say: We 
would like to test this against telephone numbers--not Americans; 
telephone numbers. It was a database that only had telephone numbers, 
the date of the call, and the duration of the call. The court would 
give us permission when we were looking to see if there was an American 
telephone number that actually talked to a known terrorist. And if it 
did, we turned it over to the Federal Bureau of Investigation and said: 
You might want to look at this person. They then went through a normal 
court process. If they wanted to find the person's name and get 
additional information, that is what they did. Some called that an 
invasion of privacy. I will tell everyone that is not the courts' 
interpretation. The courts ruled that when my telephone information 
goes to a telephone company, I have no expectation of privacy. None. 
That is the law.
  The reality is that we are collecting telephone numbers. It has no 
personal identification on it. I don't know how it would be an invasion 
of privacy when we don't know who it is. And that threshold is met when 
the Bureau goes to the court and says they have a different concern 
about the individual, and the court will then rule on it.
  But to believe that the FISA Court does anything different from the 
Senate of the United States or different from any court in the country 
when they are faced with classified or secret information--and that is, 
they shut it down--is wrong. It is just plain wrong. It is important 
for the American people to understand that there are ramifications to 
stupid decisions, even by Congress.
  It is my hope that this program will work as it is currently 
designed. But there is no mistake that we have given terrorists every 
reason to never use a cell phone or a landline again, especially those 
who are in our country and intend to carry out some act like the 
gentleman from Boston did yesterday. He pulled a knife on two officers 
who just wanted to talk to him because he had been under 24/7 
surveillance for days. If the news reports were correct, he intended to 
behead a Boston police officer.
  I think the American people want our law enforcement folks to be in 
that position. If we take away their tools, we will not be able to do 
it. What we did yesterday was we took some of the tools away. We didn't 
take all of them away. My hope is that this body will think clearly in 
the future about the tools we provide to allow this to happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  For the Senator's information, the Senate has an order to recess 
until 2 p.m.
  Mr. MERKLEY. Mr. President, I ask unanimous consent to speak for 5 
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Oregon.
  Mr. MERKLEY. Mr. President, when colleagues come to the floor and 
contend that there have been no secret courts in America, that there 
has been no secret law in America, that the administration of section 
215 matched the plain language of the laws adopted by this body, they 
are wrong on all three counts.
  Mr. BURR. Will the Senator entertain a question?
  Mr. MERKLEY. When I have completed my remarks, I will be happy to 
take a question.
  And so my colleague comes to the floor and says that there is no 
secret law. But the fundamental understanding of law is that there is 
the plain language of the law and there is the interpretation of that 
by the court. It is only through the combination of those two things 
that you can know what a law means. So if you have the plain language 
but you don't have the interpretation that has been assigned by the 
courts and used to adjudicate cases, then in fact you have secret law 
because none of us know what the words mean.
  If you look at the plain language of section 215, it doesn't say: 
Here are restrictions on how the government examines a body of 
information, interrogates that body of information, and analyzes that 
body of information. No. The language is completely about how the 
government collects that information and whether they can collect that 
information. It sets a series of clear standards for collecting that 
information. It says that information cannot be collected unless there 
is stated analysis, a set of facts that show there is evidence that the 
information being sought is relevant to an authorized investigation.
  Now, any common citizen knows, therefore, that the government has to 
do a statement of facts. They have to state what is the specific 
investigation, has that investigation been authorized, and is the 
assorted information relevant that is being requested?
  Well, ``relevant'' is a very powerful term in the law. It means one 
or two steps removed. And that is exactly what the Second Circuit found 
when they looked at this issue just recently.
  The court's opinion explained that as the program is being 
implemented, the records demanded are not those of suspects who are 
under investigation, which would certainly be relevant, or of people or 
businesses that have contact with suspects under investigation, which 
is one step removed and certainly would be relevant, or even, the court 
went on to say, of people or businesses that have contact with others 
who are in contact with the subjects. That would be two steps removed, 
and that is stretching the boundaries of what is considered relevant 
under the definition of the law.
  The court found that the implementation of the program has extended 
to every record that exists. The Court found that the implementation of 
the law extended to every record that exists.
  So if the implementation by the administration so diverged from the 
language of the law passed and debated in this Chamber, how did the 
government--the executive branch--justify its gross deviation from the 
plain language of the law? Well, here is how they did it. They went to 
a court that had been created, the Foreign Intelligence Surveillance 
Court, and they

[[Page S3654]]

said: We would like to be able to collect all the information, whether 
or not it is relevant, because some day, under some situation, we may 
want to analyze that information, and we would like to have it right at 
  Now, had there been an adversary in this court, the adversary 
presenting an opposite point of view would have said: Well, not so 
quick, because there are standards in the case law for relevance. There 
are standards for what constitutes an authorized investigation. There 
are certainly standards for what are the means to present evidence to 
document this. But there was no contrary opinion in this court because 
the only one arguing the case with no rebuttal and no examination by 
any group was the government. So we have the government and a judge. 
That is not really the theory behind the courts. The idea is that we 
have an examination of an issue with both sides presented so there can 
be full articulation and full examination of the issues, and then a 
judge can decide based on full input. But, in this case, we didn't have 
that input. The government asked for an interpretation that would allow 
them to do something far different from the plain language of the law, 
and they got it from this secret court.
  So, yes, we do have secret courts, operated with no input, and they 
disclose no opinions. And yes, we did have a secret law, and that ended 
yesterday, as it should have.
  Thank you, Mr. President.
  Mr. BURR. Will the Senator yield for a question?
  Mr. MERKLEY. I will yield.
  Mr. BURR. I ask unanimous consent for 1 additional minute before the 
Senate adjourns.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURR. My question to the Senator is this: Did he know the FISA 
Court existed?
  Mr. MERKLEY. The existence of the court----
  Mr. BURR. It is a simple yes or no answer. Did the Senator from 
Oregon know the FISA Court existed?
  Mr. MERKLEY. The Senator from North Carolina can ask a question, and 
I get to answer the question.
  Mr. BURR. Well, no, you don't. I asked the question, but I did not 
yield the Senator from Oregon the time.
  Mr. President, regular order.
  I don't want to take any more of the Senate's time, and I certainly 
don't want to take any more of my colleague's time.
  The fact is that he knows the court existed. Congress has 
reauthorized section 215 of the PATRIOT Act. The FISA Court has 
reauthorized it. They reauthorized it. They are asked every 90 days, 
and they ruled 41 times to allow section 215 to exist.
  Mr. MERKLEY. Mr. President, will my colleague yield for a question?
  Mr. BURR. I will be happy to yield for a question.
  Mr. MERKLEY. Were the opinions of this court, established by law--
and, yes, it is transparent to the public that the court exists. But 
the question of secrecy is not one of whether it exists; it is a 
question of whether the process is open in any feasible way to debate 
between two points of view. Did the Senator from North Carolina know 
that the opinions of the court, including interpretations of the law, 
were never disclosed to the American public and were, in fact, kept 
  Mr. BURR. I actually do know that.
  Mr. MERKLEY. Well, thank you, because that does show that in fact 
there were secret----
  Mr. BURR. The Senator asked his question, and I answered, and I still 
control the time. Thank you.
  Now, clearly, it is evident that if we say something wrong enough 
times, people start to believe it. It is not a secret court. It is not 
a secret law. The President knows about it, and Members of Congress 
know about it. We have voted on it. We know what goes on. Fifteen 
Members of this body have oversight responsibility over the program. We 
do our job, and we do it well.
  Now, we may disagree with what tools we use to try to defeat 
terrorism in this country, and clearly the Senator and I have a big 
canyon between us. But I have to tell my colleagues that America 
expects the Senate and the Congress of the United States and the 
President of the United States to defend them. I am going to continue 
to do everything I can to make sure law enforcement and the 
intelligence community have the tools to do their job because their job 
is a big one and the threat is big, and for people to ignore that today 
is irresponsible.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, the people of the United States expect 
the Constitution to be upheld and the principles of the Fourth 
Amendment. They expect that the law that is passed on this floor will 
be implemented in an appropriate fashion and consistently, and when it 
is not, our liberty is diminished, our freedom is diminished, and our 
privacy is diminished.
  Indeed, what we did yesterday with the USA FREEDOM Act was to end a 
system in which a court, in secrecy, changes the meaning of the law and 
does not expose it to the American public. That is a very important 
improvement, taking us back to the democracy that we are all a part of 
and that we all love.
  Thank you, Mr. President.