[Congressional Record Volume 161, Number 71 (Monday, May 11, 2015)]
[Senate]
[Page S2744]
MOVING LEGISLATION AND REPUBLICAN PRIORITIES
Mr. REID. Mr. President, I must comment on some of the statements
that my friend the Republican leader has made.
[...]
We also have the Foreign Intelligence Surveillance Act, known as
FISA. It expires on June 1. It must be extended and reformed. Last
week, the Second Circuit Court of Appeals ruled that the bulk
collection program, as currently constructed, is not authorized under
current law--meaning the law is illegal. It would be irresponsible for
this Congress to merely reauthorize and not reform. How can we
reauthorize something that is illegal? We can't. We shouldn't. Why
would anyone agree to reauthorize a program which our circuit courts
deem to be illegal?
My friend the majority leader keeps talking about extending the
program for 5\1/2\ years. Extending an illegal program for 5\1/2\
years? That is not sensible. What should happen is that we should move
forward and do something that is needed here; that is, do it all over
again.
The House of Representatives is sending us on Wednesday a new FISA
bill, one that has been vetted by those people concerned about the
rights of our citizens. They have determined that what the House has
done is good. They have passed it out of committee 25 to 2. Senator
Leahy has a bill over here that is almost identical to that bill. So I
can't understand why we just don't wait until the House sends us that
bill and we turn around immediately and give it to the President as
passed by the House of Representatives. The President will sign it. He
realizes the program has to be changed. We cannot reauthorize a program
that is illegal.
So I hope we can move forward on what the House has done. To his
credit, Senator Leahy is not saying: We have to have my bill. He is
saying: If we don't do my bill--Senator Leahy's bill--pass the House
bill. That would be good.
This is the only bipartisan, bicameral solution we have today that
will end the illegal bulk collection program in its current form and
reform and reauthorize key provisions of FISA. Otherwise, I am not the
only one, Mr. President. I was told walking over here that the junior
Senator from Kentucky is not going to let the extension of FISA take
place.
So why don't we just go ahead and get it done now; that is, when the
House sends us their bill, say we are going to pass that and send it to
the White House for signature.
I hope the majority leader will reassess his priorities and instead
choose to protect Americans' civil liberties.
What is the business of the day, Mr. President?
____________________
[Congressional Record Volume 161, Number 71 (Monday, May 11, 2015)]
[Senate]
[Pages S2751-S2753]
USA FREEDOM ACT
Mr. LEAHY. Mr. President, section 215 of the USA PATRIOT Act expires
in a matter of weeks. Senator Lee and I have a bipartisan bill, the USA
FREEDOM Act, that would end the use of section 215 to authorize the
bulk collection of Americans' phone records and replace it with a more
targeted program. It also would enact other important reforms to bring
more accountability and transparency to government surveillance. The
Speaker of the House of Representatives is bringing that same bill for
a vote in the House on Wednesday.
Last week, some opponents came to the floor to voice their
opposition. They claimed that ending this bulk collection program would
somehow put our national security at risk and that a bulk collection
program like this could somehow have prevented the September 11
attacks. But the facts are not on their side. According to the headline
of a recent National Journal story, these opponents of reform have made
``dubious claims in defense of NSA surveillance.''
I agree these claims are dubious, and I want to set the record
straight. I ask unanimous consent that the National Journal story dated
May 8, 2015, and an analysis by the Center for Democracy and Technology
of similar claims be printed in the Record.
One Senator stated on the Senate floor last week, ``If this program
had existed before 9/11, it is quite possible we would have known that
9/11 hijacker Khalid Al Mihdhar was living in San Diego and was making
phone calls to an Al Qaeda safe house in Yemen.''
Another seemed to suggest that the bulk collection program would
``have prevented 9/11.''
When I was chairman in the last Congress, the Senate Judiciary
Committee held six hearings to examine revelations about government
surveillance activities. At one of those hearings, I asked former
counterterrorism official Richard Clarke, who was working in the Bush
administration on September 11, whether the NSA bulk collection program
would have prevented those attacks. He testified that the government
had the information it needed to prevent the attacks but failed to
properly share that information among Federal agencies.
Senator Bob Graham, who investigated the September 11th attacks as
head of the Senate Intelligence Committee, likewise has said that
``there were plenty of opportunities without having to rely on this
metadata system for the FBI and intelligence agencies to have located
Mihdhar.''
The other claim that has been made repeatedly over the past few days
is that, as one Senator put it, the bulk collection of Americans' phone
records is ``very effective at keeping America safe.'' Another stated
that the USA FREEDOM Act would ``eliminate the essential intelligence
this program collects.''
But numerous national security experts also have concluded that the
NSA's bulk collection program is not essential to national security.
The President's Review Group on Intelligence and Communications
Technology, which included two former national security officials,
stated:
The information contributed to terrorist investigations by
the use of section 215 telephony metadata was not essential
to preventing attacks and could readily have been obtained in
a timely manner using conventional section 215 orders.
Former Acting CIA Director Michael Morell testified to the Senate
Judiciary Committee that the review group's recommendation to end the
government's collection of that data and instead allow the government
to search phone records held by the telecommunications providers would
not add a substantial burden to the government. That is precisely the
approach of our bipartisan USA FREEDOM Act.
Last year, the Director of National Intelligence and the Attorney
General supported a prior version of the USA FREEDOM Act, which also
ended bulk collection under section 215 and replaced it with a more
targeted phone records program. The Attorney General and the Director
of National Intelligence said that our bill ``preserve[d] essential
Intelligence Community capabilities.''
These individuals are not newcomers to the issue of national
security. They understand the threats to our Nation. They do not have a
political motive. They have the best interests of our Nation and its
values in mind when they tell us that we can end the dragnet collection
of innocent Americans' phone records and keep our country safe.
The USA FREEDOM Act does not just end NSA's bulk collection program
under section 215. It also fills other gaps in our intelligence
capabilities. It ensures that the government can quickly obtain
business records--including phone records--in emergency situations. It
ensures that if a foreign terrorist who poses a serious threat comes
into the United States, the government does not have to stop its
surveillance while it seeks emergency wiretap authorization from the
Attorney General. It ensures that the government need not terminate
FISA surveillance on a foreigner who temporarily travels outside the
United States. And it ensures that the FBI has the tools it needs to
investigate individuals who are facilitating the international
proliferation of weapons of mass destruction on behalf of a foreign
government or terrorist organization. These provisions were requested
by the FBI and by the House Permanent Select Committee on Intelligence.
They were not part of the bill that was filibustered in the Senate in
November.
As a final matter, it is notable that there has been not a single
Senate committee hearing on surveillance reform or the expiring
provisions in the 5 months of this new Congress under Republican
leadership. There has been zero committee consideration on the bill
that Senator McConnell has now brought directly to the Senate calendar
that would simply extend these
[[Page S2752]]
expiring provisions. I recall the promises that under new leadership
the committees would work through regular order, but that has not
occurred even though it was apparent to all last year that we would
need to grapple with long-overdue reforms. This lack of leadership or
any committee process is also despite the fact that the leader and
chairmen of the relevant committees would not even let us debate the
USA FREEDOM Act last year, in part because it had not gone through
committee. As the process moves forward this year, we should not be
hearing complaints about lack of process from those who did not provide
it.
There is no question that the USA FREEDOM Act contains far-reaching
surveillance reforms. But the most high-ranking intelligence officials
in the country have endorsed its approach because it is a responsible
bill. It protects Americans' privacy and keeps them safe. The Senate
should take up the bill once the House passes it this week.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From National Journal, May 8, 2015]
Republicans Make Dubious Claims in Defense of NSA Surveillance
Mitch McConnell and his cohort of security hawks are stopping at
nothing to renew the spy agency's phone dragnet. But how fair is their
defense?
(By Dustin Volz)
One by one, several powerful Republican senators took to
the floor Thursday morning to offer one of the most full-
throated defenses of the National Security Agency's bulk
collection of billions of U.S. phone records since Edward
Snowden exposed the program nearly two years ago.
The crux of their argument is unmistakable: The NSA's
expansive surveillance powers need to remain intact and
unchanged to keep Americans safe from potential terrorist
threats--and if these powers existed before Sept. 11, 2001,
they may have assisted in preventing the attacks on the World
Trade Center and the Pentagon.
But some of the talking points used by Senate Majority
Leader Mitch McConnell and his allies appear to rely heavily
on assertions that are either dubious in their veracity or
elide important contextual details.
Here is a review of some of their declarations:
Claim: ``Not only have these tools kept us safe, there has
not been a single incident, not one, of intentional abuse of
them.''--McConnell
McConnell may have been referring specifically to the phone
records program here, but the NSA does not, as he implies,
have a spotless record.
According to a 2013 inspector general report, NSA analysts
intentionally misused foreign surveillance authorities at
least a dozen times in the past decade, sometimes for the
purpose of spying on their romantic interests. So-called
``loveint''--short for ``love intelligence''--was revealed by
the inspector general in response to a letter sent from
Republican Sen. Chuck Grassley, who this year renewed a call
for the Justice Department to provide an update on how it was
handling its investigation into the alleged willful abuses
and to ``appropriate accountability for those few who violate
the trust placed in them.''
Additionally, a 2012 internal audit obtained by The
Washington Post found that the NSA has violated privacy
restrictions set in place for its surveillance programs
thousands of times each year since 2008. The audit found that
most--though not all--infractions were unintended.
Claim: ``The compromise legislation rolls us back to the
same thing we were doing pre-9/11.''--Senate Intelligence
Chairman Richard Burr
The USA Freedom Act referenced by Burr would reauthorize
three key surveillance provisions under the post-9/11 Patriot
Act. It would usher in several reforms related to
transparency and oversight, but it would keep those
authorities intact. Section 215 of the law would no longer
allow for the bulk collection of U.S. phone metadata by the
NSA, but the authority--created after 9/11--would still
exist.
Claim: ``The alternatives to the current program would not
come close to offering the capabilities that now enable us to
protect Americans.''--Sen. Tom Cotton
Cotton's claim does not align with the stance of Director
of National Intelligence James Clapper and then-Attorney
General Eric Holder, who sent a letter to lawmakers last year
expressing their support for an earlier iteration of the
Freedom Act. ``The intelligence community believes that your
bill preserves essential intelligence-community capabilities;
and the Department of Justice and the Office of the Director
of National Intelligence support your bill and believe that
it is a reasonable compromise that enhances privacy and civil
liberties and increases transparency,'' the letter read. That
version of the Freedom Act is widely considered more limiting
of surveillance powers than the one being debated in Congress
this year.
Claim: ``One alternative offered by opponents of this
program is to have phone companies retain control of all call
data and provide the NSA only the data responsive to searches
phone companies would run on the NSA's behalf. This is not
technologically feasible.''--Cotton
The reliance on phone companies to retain call data already
occurs, as they are the ones who turn the records over to the
government in bulk. Cotton, who voted for a pared down
iteration of the Freedom Act last year when he served in the
House, cites an 85-page study from the National Research
Council to support this assertion. But the Arkansas freshman
appears to be conflating its findings, which dealt with
whether software could fully replace bulk collection, with
what backers of the Freedom Act are attempting to do.
``Although no software can fully replace bulk with targeted
information collection, software can be developed to more
effectively target collection and to control the usage of
collected data,'' the report concluded. Cotton's
reservations--that the new system may take longer than the
old--have more to do with process than technological
capabilities.
Claim: ``Here's the truth. If this program had existed
before 9/11, it is quite possible that we would have known
that the 9/11 hijacker Khalid al-Mihdhar was living in San
Diego and making phone calls to an al-Qaida safehouse in
Yemen. There's no guarantee we would have known. Theres no
way we can go back in time and prove it, but there is a
probability that we would have known and there's a
probability that American lives could have been saved.''--
Sen. Marco Rubio.
Rubio hedges his language several times with this claim,
but the statement still omits important context. As reported
by a 2013 ProPublica investigation, ``U.S. intelligence
agencies knew the identity of the hijacker in question, Saudi
national Khalid al-Mihdhar, long before 9/11 and had the
ability find him, but they failed to do so.'' Such missed
opportunities to disrupt Midhar's activities, which were
being monitored by at least as early as 1999, reflect a
failure of information sharing among intelligence agencies,
ProPublica notes, and are described in detail in the 9/11
Commission report.
____
Senators' Questionable Claims About NSA Bulk Collection
Center for Democracy & Technology
On May 7th, 2015, the Second Circuit issued a ruling that
declared the NSA's bulk collection of Americans' phone
records was clearly unlawful under the Section 215 of the
PATRIOT Act. The ruling provided another boost to supporters
of surveillance reform and the backers of the USA FREEDOM
Act. Hours after the ruling came down, several U.S.
Senators--Mitch McConnell, Richard Burr, Tom Cotton, Jeff
Sessions, and Marco Rubio--took to the Senate Floor to
forcefully defend the NSA's bulk collection program. The
Senators made some statements that merit a second look, and
serious skepticism.
Claim 1: The NSA's bulk collection of Americans' phone
records is essential to national security. ``Under
consideration in the House and proposed in the Senate is the
socalled USA FREEDOM Act, which will eliminate the essential
intelligence this program collects.''--Senator Tom Cotton
The weight of public evidence contradicts this claim, based
on statements from experts with access to classified
intelligence:
The Attorney General and the Director of National
Intelligence stated that the USA FREEDOM Act of 2014--which
is in all ways identical to or less restrictive of
surveillance than the 2014 bill--``preserves essential
Intelligence Community capabilities'' though the bill ``bans
bulk collection under a variety of authorities.''
The President's Review Group noted in 2014 that the bulk
collection program yielded information that was ``not
essential to preventing attacks and could readily have been
obtained in a timely manner using conventional section 215
orders.''
The Privacy and Civil Liberties Oversight Board stated in
2014: ``Based on the information provided to the Board,
including classified briefings and documentation, we have not
identified a single instance involving a threat to the United
States in which the program made a concrete difference in the
outcome of a counterterrorism investigation. Moreover, we are
aware of no instance in which the program directly
contributed to the discovery of a previously unknown
terrorist plot or the disruption of a terrorist attack.''
Senators Wyden, Heinrich, and Udall said in 2013 ``[We]
have reviewed this surveillance extensively and have seen no
evidence that the bulk collection of Americans' phone records
has provided any intelligence of value that could not have
been gathered through less intrusive means.''
It's important not to conflate the value of Sec. 215
overall with the effectiveness of the use of Section 215 for
bulk collection. Sec. 215 can be used for targeted--not just
bulk--data collection. The USA FREEDOM Act ends nationwide
bulk collection under Sec. 215, but preserves the
government's ability to use Sec. 215 for more targeted
collection. What is at stake with USA FREEDOM is not Sec. 215
itself, but its continued use for bulk domestic surveillance.
Claim 2: The bulk collection program could have stopped 9/
11. ``Here is the truth. If this program had existed before
9/11, it is quite possible we would have known that 9/11
hijacker Khalid Al Mihdhar was living in San Diego and was
making phone calls to an Al
[[Page S2753]]
Qaeda safe house in Yemen.''--Senator Marco Rubio
A bulk collection program was not necessary to find Al
Mihdhar prior to 9/11. As the PCLOB report details, the NSA
had already begun intercepting calls to and from the safe
house in Yemen in the late 1990s. Since the government knew
the number of the safe house, and Al Mihdhar was calling that
number, it would only be necessary to collect the phone
records of the safe house to discover Al Mihdhar in San
Diego. This is, in fact, an example of how targeted
surveillance would have been more effective than bulk
collection. The 9/11 Commission Report and other sources note
that the CIA was aware of Mihdhar well before the attack and
missed multiple opportunities to deny him entry to the U.S.
or intensify their surveillance of him.
Claim 3: Bulk collection of phone records is the same as a
subpoena. ``This is the way the system works and has worked
for the last 50 years--40 years at least. A crime occurs. A
prosecutor or the DEA agent investigates. They issue a
subpoena to the local phone company that has these telephone
toll records--the same thing you get in the mail--and they
send them in response to the subpoena.''--Senator Jeff
Sessions
The Second Circuit opinion, which held that the bulk
collection program is unlawful, included a lengthy comparison
of subpoenas and the bulk collection program. The bulk
collection program encompasses a vastly larger quantity of
records than could be obtained with a subpoena. The Second
Circuit notes that subpoenas typically seek records of
particular individuals or entities during particular time
periods, but the government claims Sec. 215 provides
authority to collect records connected to everyone--on an
``ongoing daily basis''--for an indefinite period extending
into the future.
Claim 4: The government is only analyzing a few phone
records. ``The next time that any politician--Senator,
Congressman--talking head, whoever it may be, stands up and
says ``The U.S. Government is [. . .] going through your
phone records,'' they are lying. It is not true, except for
some very isolated instances--in the hundreds--of individuals
for whom there is reasonable suspicion that they could have
links to terrorism.''--Senator Marco Rubio
The NSA's telephony bulk collection program collects the
phone records of millions of Americans with no connection to
a crime or terrorism. These records are stored with the NSA
and they are analyzed scores of times each year when the NSA
queries the numbers' connection to the phone numbers of
suspects. Moreover, until 2014, when the NSA suspected a
phone number was connected to terrorism, the NSA analyzed the
phone records ``three hops'' out--querying those who called
those who called those who called the original suspect
number. As a result, the PCLOB estimated, a single query
could subject the full calling records of over 420,000 phone
numbers to deeper scrutiny. In 2014, the President limited
the query to ``two hops''--though this can still encompass
the full call records of thousands of phone numbers. The USA
FREEDOM Act (Sec. 101) would authorize the government to
obtain ``two hops'' worth of call records from telecom
companies.
Claim 5: The USA FREEDOM Act threatens privacy by leaving
phone records with telecom companies. ``[T]he opponents of
America's counterterror programs would rather trust
telecommunication companies to hold this data and search it
on behalf of our government. [. . .] In addition to making us
less safe, the USA FREEDOM Act would make our privacy less
secure.''--Senator Mitch McConnell
The telecom companies already have the phone records since
the records are created in the normal course of their
business. The USA FREEDOM Act does not shift control of data
from NSA to telecoms; the bill limits the volume of what the
government can collect from companies with a single 215
order. Keeping the records with the phone companies, as the
USA FREEDOM Act would require, does not create a new privacy
intrusion, or, according to the public record, pose new
security risks. In contrast, it is highly intrusive for the
government to demand companies provide a copy of the
communication records of millions of Americans on a daily
basis to a secretive military intelligence agency for data
mining.
One last important point: The discussion on the Senate
Floor centered exclusively on the bulk collection of phone
records. However, the debate and the legislation before
Congress are not just about one telephony metadata program.
The debate is over whether the government should have the
authority to collect a variety of records in bulk under the
PATRIOT Act. The government has claimed that its bulk
collection authority extends to any type of record that can
reveal hidden relationships among individuals--which could
include phone call, email, cell phone location, and financial
transaction records. Framing the issue in terms of phone
records makes the problem seem much smaller than it is,
especially as our society moves into a technology-enabled
future where each individual will create much more metadata
and digital records than the present. The stakes are high.
____________________
