[Congressional Record Volume 161, Number 88 (Wednesday, June 3, 2015)]
[Senate]
[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
America.
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
investigation.
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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
happened.
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
law.
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
any
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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
correction.
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
abroad.
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
minutes.
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
hand.
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
secret?
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.
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