[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Pages S3419-S3421]
NATIONAL SECURITY LEGISLATION
Mr. McCONNELL. Madam President, I wish we had been able to move the
cloture and amendment votes we will consider today to yesterday. I made
an offer to do so because it is hard to see the point in allowing yet
another day to elapse when everyone has already had a chance to say
their piece, when the end game appears obvious to all, and when the
need to move forward in a thoughtful but expeditious manner seems
perfectly clear. But this is the Senate, and Members are entitled to
different views and Members have tools to assert those views. It is the
nature of the body where we work.
Moreover, it is important to remember that it was not just the denial
of consent which brought us to where we are. The kind of short-term
extension that would have provided the Senate with the time and space
it needed to advance bipartisan compromise legislation through regular
order was also blocked in a floor vote.
But what has happened has happened, and we are where we are. Now is
the time to put all that in the past and work together to diligently
make some discrete and sensible improvements to the House bill.
Before scrapping an effective system that has helped protect us from
attack in favor of an untried one, we should at least work toward
securing some modest degree of assurance that the new system can, in
fact, actually work. The Obama administration also already told us that
it would not be able to make any firm guarantees in that regard--that
it would work--at least the way the bill currently reads. And the way
the bill currently reads, there is also no requirement--no
requirement--for the retention and availability of significant data for
analysis. These are not small problems.
The legislation we are considering proposes major changes to some of
our Nation's most fundamental and necessary counterterrorism tools.
That is why the revelations from the administration shocked many
Senators, including a lot of supporters of this legislation. It is
simply astounding that the very government officials charged with
implementing the bill would tell us, both in person and in writing,
that if it turns out this new system doesn't work, then they will just
come back to us and let us know. If it doesn't work, they will just
come back and let us know. This is worrying for many reasons, not the
least of which is that we don't want to find out the system doesn't
work in a far more tragic way. That is why we need to do what we can
today to ensure that this legislation is as strong as it can be under
the circumstances.
Here are the kinds of amendments I hope every Senator will join me in
supporting today.
One amendment would allow for more time for the construction and
testing of a system that does not yet exist. Again, one amendment would
allow for more time for the construction and testing of a system that
does not yet exist.
Another amendment would ensure that the Director of National
Intelligence is charged with at least reviewing and certifying the
readiness of the system.
Another amendment would require simple notification if telephone
providers--the entities charged with holding data under this bill--
elect to change their data-retention policies. Let me remind my
colleagues that one provider has already said expressly and in writing
that it would not commit to holding the data for any period of time
under the House-passed bill unless compelled by law. So this amendment
represents the least we can do to ensure we will be able to know,
especially in an emergency, whether the dots we need to connect have
actually been wiped away.
We will also consider an amendment that would address concerns we
have heard from the nonpartisan Administrative Office of the U.S.
Courts--in other words, the lifetime Federal judges who actually serve
on the FISA Court. In a recent letter, they wrote that the proposed
amicus provision ``could impede the FISA Courts' role in
[[Page S3420]]
protecting the civil liberties of Americans.''
I ask unanimous consent that the full text of that letter be printed
in the Record at the conclusion of my remarks.
So the bottom line is this: The basic fixes I have just mentioned are
common sense. Anyone who wants to see the system envisioned under this
bill actually work will want to support them. And anyone who has heard
the administration's ``we will get back to you if there is a problem''
promise should support these modest safeguards as well.
We may have been delayed getting to the point at which we have
arrived, but now that we are here, let's work cooperatively, seriously,
and expeditiously to move the best legislation possible and prevent any
more delay and uncertainty.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Administrative Office of the
United States Courts,
Washington, DC, May 4, 2015.
Hon. Devin Nunes,
Chairman, Permanent Select Committee on Intelligence, House
of Representatives, Washington, DC.
Dear Mr. Chairman: I write regarding H.R. 2048, the ``USA
Freedom Act,'' which was recently ordered reported by the
Judiciary Committee, to provide perspectives on the
legislation, particularly an assessment that the pending
version of the bill could impede the effective operation of
the Foreign Intelligence Surveillance Courts.
In letters to the Committee on January 13, 2014 and May 13,
2014, we commented on various proposed changes to the Foreign
Intelligence Surveillance Act (FISA). Our comments focused on
the operational impact of certain proposed changes on the
Judicial Branch, particularly the Foreign Intelligence
Surveillance Court (``FISC'') and the Foreign Intelligence
Surveillance Court of Review (collectively ``FISA Courts''),
but did not express views on core policy choices that the
political branches are considering regarding intelligence
collection. In keeping with that approach, we offer views on
aspects of H.R. 2048 that bear directly on the work of the
FISA Courts and how that work is presented to the public. We
sincerely appreciate the ongoing efforts of the bipartisan
leadership of all the congressional committees of
jurisdiction to listen to and attempt to accommodate our
perspectives and concerns.
We respectfully request that, if possible, this letter be
included with your Committee's report to the House on the
bill.
Summary of Concerns
We have three main concerns. First, H.R. 2048 proposes a
``panel of experts'' for the FISA Courts which could, in our
assessment, impair the courts' ability to protect civil
liberties by impeding their receipt of complete and accurate
information from the government (in contrast to the helpful
amicus curiae approach contained in the FISA Improvements Act
of 2013 (``FIA''), which was approved in similar form by the
House in 2014). Second, we continue to have concerns with the
prospect of public ``summaries'' of FISA Courts' opinions
when the opinions themselves are not released to the public.
Third, we have a few other specific technical concerns with
H.R. 2048 as drafted.
Nature of the FISA Courts
With the advent of a new Congress and newly proposed
legislation, it seems helpful to restate briefly some key
attributes of the work of the FISA Courts.
The vast majority of the work of the FISC involves
individual applications in which experienced judges apply
well-established law to a set of facts presented by the
government--a process not dissimilar to the ex parte
consideration of ordinary criminal search warrant
applications. Review of entire programs of collection and
applications involving bulk collection are a relatively small
part of the docket, and applications involving novel legal
questions, though obviously important, are rare.
In all matters, the FISA Courts currently depend on--and
will always depend on--prompt and complete candor from the
government in providing the courts with all relevant
information because the government is typically the only
source of such information.
A ``read copy'' practice--similar to the practices employed
in some federal district courts for Title III wiretap
applications--wherein the government provides the FISC with
an advance draft of each planned application, is the major
avenue for court modification of government-sought
surveillance. About a quarter of ``read copies'' are modified
or withdrawn at the instigation of the FISC before the
government presents a final application--in contrast to the
overwhelming majority of formal applications that are
approved by the Court because modifications at the ``read
copy'' stage have addressed the Court's concerns in cases
where final applications are submitted.
The FISC typically operates in an environment where, for
national security reasons and because of statutory
requirements, time is of the essence, and collateral
litigation, including for discovery, would generally be
completely impractical.
At times, the FISA Courts are presented with challenging
issues regarding how existing law applies to novel
technologies. In these instances, the FISA Courts could
benefit from a conveniently available explanation or
evaluation of the technology from an informed non-government
source. Congress could assist in this regard by clarifying
the law to provide mechanisms for this to occur easily (e.g.,
by providing for pre-cleared experts with whom the Court can
share and receive information to the extent it deems
necessary).
The ``Panel of Experts'' Approach of H.R. 2048 Could Impede the FISA
Courts' Work
H.R. 2048 provides for what proponents have referred to as
a ``panel of experts'' and what in the bill is referred to as
a group of at least five individuals who may serve as an
``amicus curiae'' in a particular matter. However, unlike a
true amicus curiae, the FISA Courts would be required to
appoint such an individual to participate in any case
involving a ``novel or significant interpretation of law''
(emphasis added)--unless the court ``issues a finding'' that
appointment is not appropriate. Once appointed, such amici
are required to present to the court, ``as appropriate,''
legal arguments in favor of privacy, information about
technology, or other ``relevant'' information. Designated
amici are required to have access to ``all relevant'' legal
precedent, as well as certain other materials ``the court
determines are relevant.''
Our assessment is that this ``panel of experts'' approach
could impede the FISA Courts' role in protecting the civil
liberties of Americans. We recognize this may not be the
intent of the drafters, but nonetheless it is our concern. As
we have indicated, the full cooperation of rank- and-file
government personnel in promptly conveying to the FISA Courts
complete and candid factual information is critical. A
perception on their part that the FISA process involves a
``panel of experts'' officially charged with opposing the
government's efforts could risk deterring the necessary and
critical cooperation and candor. Specifically, our concern is
that imposing the mandatory ``duties''--contained in
subparagraph (i)(4) of proposed section 401 (in combination
with a quasi-mandatory appointment process)--could create
such a perception within the government that a standing body
exists to oppose intelligence activities.
Simply put, delays and difficulties in receiving full and
accurate information from Executive Branch agencies
(including, but not limited to, cases involving non-
compliance) present greater challenges to the FISA Courts'
role in protecting civil liberties than does the lack of a
non-governmental perspective on novel legal issues or
technological developments. To be sure, we would welcome a
means of facilitating the FISA Courts' obtaining assistance
from non-governmental experts in unusual cases, but it is
critically important that the means chosen to achieve that
end do not impair the timely receipt of complete and accurate
information from the government.
It is on this point especially that we believe the ``panel
of experts'' system in H.R. 2048 may prove counterproductive.
The information that the FISA Courts need to examine probable
cause, evaluate minimization and targeting procedures, and
determine and enforce compliance with court authorizations
and orders is exclusively in the hands of the government--
specifically, in the first instance, intelligence agency
personnel. If disclosure of sensitive or adverse information
to the FISA Courts came to be seen as a prelude to disclosure
to a third party whose mission is to oppose or curtail the
agency's work, then the prompt receipt of complete and
accurate information from the government would likely be
impaired--ultimately to the detriment of the national
security interest in expeditious action and the effective
protection of privacy and civil liberties.
In contrast, a ``true'' amicus curiae approach, as adopted,
for example, in the FIA, facilitates appointment of experts
outside the government to serve as amici curiae and render
any form of assistance needed by the court, without any
implication that such experts are expected to oppose the
intelligence activities proposed by the government. For that
reason, we do not believe the FIA approach poses any similar
risk to the courts' obtaining relevant information.
``Summaries'' of Unreleased FISA Court Opinions Could Mislead the
Public
In our May 13, 2014, letter to the Committee on H.R. 3361,
we shared the nature of our concerns regarding the creation
of public ``summaries'' of court opinions that are not
themselves released. The provisions in H.R. 2048 are similar
and so are our concerns. To be clear, the FISA Courts have
never objected to their opinions--whether in full or in
redacted form--being released to the public to the maximum
extent permitted by the Executive's assessment of national
security concerns. Likewise, the FISA Courts have always
facilitated the provision of their full opinions to Congress.
See, e.g., FISC Rule of Procedure 62(c). Thus, we have no
objection to the provisions in H.R. 2048 that call for
maximum public release of court opinions. However, a formal
practice of creating summaries of court opinions without the
underlying opinion being available is unprecedented in
American legal administration. Summaries of court opinions
can be inadvertently incorrect or misleading, and may
[[Page S3421]]
omit key considerations that can prove critical for those
seeking to understand the import of the court's full opinion.
This is particularly likely to be a problem in the fact-
focused area of FISA practice, under circumstances where the
government has already decided that it cannot release the
underlying opinion even in redacted form, presumably because
the opinion's legal analysis is inextricably intertwined with
classified facts.
Additional Technical Comments on H.R. 2048
The Judiciary, like the public, did not participate in the
discussions between the Administration and congressional
leaders that led to H.R. 2048 (publicly released on April 28,
2015 and reported by the Judiciary Committee without changes
on April 30). In the few days we have had to review the bill,
we have noted a few technical concerns that we hope can be
addressed prior to finalization of the legislation, should
Congress choose to enact it. These concerns (all in the
amicus curiae subsection) include:
Proposed subparagraph (9) appears inadvertently to omit the
ability of the FISA Courts to train and administer amici
between the time they are designated and the time they are
appointed.
Proposed subparagraph (6) does not make any provision for a
``true amicus'' appointed under subparagraph (2)(B) to
receive necessary information.
We are concerned that a lack of parallel construction in
proposed clause (6)(A)(i) (apparently differentiating between
access to legal precedent as opposed to access to other
materials) could lead to confusion in its application.
We recommend adding additional language to clarify that the
exercise of the duties under proposed subparagraph (4) would
occur in the context of Court rules (for example, deadlines
and service requirements).
We believe that slightly greater clarity could be provided
regarding the nature of the obligations referred to in
proposed subparagraph (10). These concerns would generally be
avoided or addressed by substituting the FIA approach.
Furthermore, it bears emphasis that, even if H.R. 2048 were
amended to address all of these technical points, our more
fundamental concerns about the ``panel of experts'' approach
would not be fully assuaged. Nonetheless, our staff stands
ready to work with your staff to provide suggested textual
changes to address each of these concerns.
Finally, although we have no particular objection to the
requirement in this legislation of a report by the Director
of the AO, Congress should be aware that the AO's role would
be to receive information from the FISA Courts and then
simply transmit the report as directed by law.
For the sake of brevity, we are not restating here all the
comments in our previous correspondence to Congress on
proposed legislation similar to H.R. 2048. However, the
issues raised in those letters continue to be of importance
to us.
We hope these comments are helpful to the House of
Representatives in its consideration of this legislation. If
we may be of further assistance in this or any other matter,
please contact me or our Office of Legislative Affairs at
202-502-1700.
Sincerely,
James C. Duff,
Director.
____________________
[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Pages S3421-S3439]
USA FREEDOM ACT OF 2015
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of H.R. 2048, which the clerk will report.
The senior assistant legislative clerk read as follows:
A bill (H.R. 2048) to reform the authorities of the Federal
Government to require the production of certain business
records, conduct electronic surveillance, use pen registers
and trap and trace devices, and use other forms of
information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other
purposes.
Pending:
McConnell/Burr amendment No. 1449, in the nature of a
substitute.
McConnell amendment No. 1450 (to amendment No. 1449), of a
perfecting nature.
McConnell amendment No. 1451 (to amendment No. 1450),
relating to appointment of amicus curiae.
McConnell/Burr amendment No. 1452 (to the language proposed
to be stricken by amendment No. 1449), of a perfecting
nature.
McConnell amendment No. 1453 (to amendment No. 1452), to
change the enactment date.
Mr. DURBIN. Mr. President, I ask unanimous consent to speak for 2
minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Ms. COLLINS. Mr. President, in the aftermath of the terrorist attacks
on our country on 9/11/2001--terrorist attacks that killed some 3,000
people--I authored legislation, along with former Senator Joe Lieberman
of Connecticut, to implement the recommendations of the 9/11 Commission
to reform and restructure the intelligence community, to improve its
capabilities, and also to increase accountability and oversight.
Now, this law is different and distinct from the PATRIOT Act. Our law
established the Office of the Director of National Intelligence to
coordinate all of the agencies involved in intelligence gathering so
that we would reduce the possibility of the dots not being connected
and to allow terrorist attacks and plots to be detected and thwarted.
Our legislation also created the National Counterterrorism Center,
which helps to synthesize the information across government and share
it with State and local governments to help keep us safer. Our bill
created the Privacy and Civil Liberties Oversight Board, and it
installed privacy officers in the major intelligence agencies.
But our law, the Intelligence Reform and Terrorism Protection Act,
shared the common goal of the PATRIOT Act of better protecting our
Nation from terrorist attacks because none of us who lived through that
terrible day
[[Page S3422]]
ever wanted to see Americans die again because our Nation failed to use
the tools and capabilities it had to prevent terrorist attacks.
We have had terrorist attacks since that time. The Boston Marathon is
an example of a terrorist attack that occurred despite our best
efforts, but we have been able to thwart and uncover and detect and
stop terrorist attacks--both here and abroad--due to the important
tools and capabilities our government has. Like the Presiding Officer,
I serve on the Senate Select Committee on Intelligence. I have sat
through countless hours of briefings, I have asked the hard questions
about our intelligence programs, and I have challenged those who have
come before us.
I wish to explain how the current program works at NSA because I
believe there is so much misinformation about this important program.
One of the most egregious misinformation points that have been made is
that the NSA is listening to the content of calls made by American
citizens to other American citizens. That is simply not true.
Let me tell you how this program works. First, it starts with a call,
a phone number from a foreign terrorist or a foreign terrorist
organization. When we get a foreign terrorist's--who is based
overseas--telephone number, the NSA is allowed to query a database to
see if that foreign-based terrorist is calling someone in our country.
Why is that important? Well, we know ISIS and other terrorist groups
have been recruiting Americans and trying to train them to attack our
country. That is why it is important.
Only 34 highly trained, vetted Federal employees are allowed to query
that database, and even then they are allowed to do so only if a
Federal judge finds that a standard has been reached to allow that
query to be made. Even if that query is approved by that Federal judge,
the analyst can only see the phone numbers called by the terrorist, the
date, the time, and the duration of the call.
If there is a match, then the case is turned over to the FBI for
further investigation. The FBI must get a court order to wiretap the
phone of the American who is talking to that foreign terrorist.
Last month, during a Senate Appropriations Committee hearing, I asked
the Attorney General whether there have ever been any privacy
violations regarding that telephone data. She replied no.
I am truly perplexed that anyone would argue that telephone data are
better protected in the hands of 1,400 telecom companies and 160
wireless carriers than in a secure NSA database that only 34 carefully
vetted and trained employees are allowed to query under the supervision
of a Federal judge.
Under the USA FREEDOM Act--the House bill--when we get the telephone
number of an overseas terrorist, we potentially are going to have to go
to each one of those 1,400 telecom companies, 160 wireless carriers,
which potentially will involve thousands of people. The privacy
implications are far greater if we have the telecoms control the data,
far greater.
Moreover, we know private sector data is far more susceptible to
hackers, to criminals. Look at all the breaches of sensitive data that
have occurred during the past year alone. Plus, I simply don't think
the system will work without a data-retention requirement now that most
carriers have flat-rate telephone plans that don't require detailed
call data records. The telecom companies have made very clear they will
oppose any bill with a data-retention requirement, and there will be a
race to the bottom to market the data in a way that says to people:
Sign up with us and your data will be safe from the government.
That kind of demagoguery--even though the commerce committee has done
an excellent study that shows the data broker companies sell our
personal data, including our names, our phone numbers, our addresses to
the highest bidder for telemarketing and other purposes, and some of
that data ends up in the hands of con artists.
So I don't see how vesting the authority in the telecom
communications companies increases the privacy of our data, safeguards
it. I think just the opposite is the case. It is going to be less
secure because it is going to be more exposed to hackers and criminals
who will attempt to do data breaches and have successfully done so. It
is going to be less secure because instead of 34 people having access
to just the phone numbers and call duration data, we are going to have
potentially thousands of people who are going to be asked to query
their database. The system is going to be less effective because there
is absolutely no guarantee this data will be retained by the telecom
companies and the wireless carriers.
Finally, I am persuaded by the cautions given to us, by the direct
warnings of former Director of the FBI Robert Mueller and the former
Deputy Director of the CIA Mike Morell, who tell us that had this
program been in place prior to 9/11, it is likely that terrorist plot
would have been uncovered and thwarted.
The fact is the House bill substantially weakens a vital tool in our
counterterrorism efforts at a time when the terrorist threat has never
been higher. The current program has never been abused. The government
cannot listen to your phone calls or read your emails unless there is a
court order--because you are directly communicating with an overseas
terrorist--and then it goes to the FBI for investigation.
It is a false choice that we have to choose between our civil
liberties and keeping our country safe. There are actions we can and
should take to strengthen the privacy protections in the NSA program.
Several were included in the bipartisan bill reported by the
Intelligence Committee last year. Unfortunately, the USA FREEDOM Act
provides a false sense of privacy at the expense of our national
security.
For these reasons, while I will support the amendments today to try
to make modest improvements to the House bill, I simply cannot support
the bill on final passage.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I ask unanimous consent to speak for an
additional 7 minutes, to be divided between Senator Leahy and myself.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I thank the Senator from Utah for his
courtesy.
The fact is the USA FREEDOM Act that was passed overwhelmingly in the
House of Representatives--that has strong bipartisan support here--is
supported by the Director of National Intelligence. It is also
supported by our Attorney General. It is supported by our intelligence
community. And it is a step forward because, ultimately, the
legislation protects the privacy of individuals.
I agree with the Senator from Maine that we have strong restrictions
at the NSA on the information. However, they were not strong enough, of
course, to stop Edward Snowden from walking off with all the
information that was there.
We had six public hearings on these issues in the Senate Judiciary
Committee last Congress. The original USA FREEDOM Act was introduced by
Senator Lee and me and Congressman Jim Sensenbrenner in the other body.
We all knew section 215, the roving wiretap authority, and ``lone
wolf'' provision, would expire June 1, 2015. That is why we started
working to change it. We are also well aware of the Second Circuit
Court of Appeals decision that made part of the program illegal.
I think what we have in the USA FREEDOM Act is a carefully crafted
bill by both Republicans and Democrats in the House and the Senate.
That is why it passed 338 to 88 in the House. If we start amending it,
we don't know how much longer it is going to take and we end up with no
protections. I think that is not a choice we want to make.
On Sunday night, with only a few hours before the sunset of section
215 and the other two expiring FISA authorities, Republican leadership
in the Senate finally agreed to begin debate on the USA FREEDOM Act.
For nearly 2 years, I have been working on a bipartisan basis with
members in both the Senate and the House to address these matters. As
chairman of the Senate Judiciary Committee last Congress, I convened
six public hearings to examine the NSA's bulk collection program and
consider reforms to
[[Page S3423]]
section 215 and other surveillance authorities.
In October 2013, I introduced the original USA FREEDOM Act with
Congressman Jim Sensenbrenner, Senator Lee, and others. We introduced
an updated version of the USA FREEDOM Act in 2014 and pushed for the
Senate to pass that bill last November, months before Sunday's
expiration date.
The American people were demanding meaningful reforms, but the
intelligence community also needed operational certainty.
We all knew that section 215, the roving wiretap authority, and the
lone wolf provision would expire on June 1. That is why I started
working months ago with Members of Congress from both parties and both
Chambers to forge a compromise that protects both Americans' privacy
and our national security.
We were able to reach agreement on a bill that certainly does not go
as far as I would like, but that definitively ends the NSA's bulk
collection of phone records, improves transparency and accountability,
and includes other important reforms. Our bill--the USA FREEDOM Act of
2015--is a carefully crafted bill that has now earned the support of
the intelligence community, privacy and civil liberties groups,
librarians, the tech industry, and a bipartisan super-majority of the
Republican-led House of Representatives. Our bill represents
significant progress toward real surveillance reform.
Unfortunately, the Republican leadership in the Senate has tried to
block this progress at every turn. They blocked the Senate from
debating the USA FREEDOM Act last November. They again blocked the
Senate from debating the bill 2 weeks ago, despite knowing full well
that failure to swiftly consider the House-passed bill would lead to
expiration of these critical surveillance authorities. This
brinksmanship is not a responsible way to govern.
The expiration of the PATRIOT Act provisions on Sunday night was
entirely avoidable, and the unfortunate consequence of a manufactured
crisis. The Senate must now act responsibly and swiftly. It is time to
pass the USA FREEDOM Act, which would restore the expired provisions
and add much needed improvements and reforms.
I hope that we will invoke cloture and then quickly dispense with any
germane amendments so that we can move to passage of the bill. The
House passed the USA FREEDOM Act almost 3 weeks ago by an overwhelming
338 to 88 vote.
Senator Lee and I sought an open amendment process in the Senate, but
we were blocked. Now, we simply do not have any time to spare. The
Senate must pass this bill without any amendments so that the President
can sign it into law immediately and restore these expired provisions
today.
A vote for any amendment is a vote to prolong the expiration of the
surveillance authorities that ended on Sunday. If the Senate changes
the underlying bill in any way, it must go back to the House for its
consideration, and there are no guarantees that it will pass the new
bill.
In fact, Chairman Goodlatte of the House Judiciary Committee, Ranking
Member Conyers, Congressman Sensenbrenner, and Congressman Nadler
warned that ``[t]he House is not likely to accept the changes proposed
by Senator McConnell. Section 215 has already expired. These amendments
will likely make that sunset permanent.''
Let us have no more unnecessary delay or political brinksmanship. It
is time to do our jobs for the American people--to protect their
privacy and maintain our national security. Now is not the time to seek
unnecessary changes to this bill. If Senators believe that the Senate
should consider some of these changes, we can consider them after we
pass the USA FREEDOM Act.
I urge Senators to vote for cloture because we need to move forward.
We cannot afford to waste any more time. The USA FREEDOM Act includes
important reforms, and we need to give the intelligence community the
tools they need to keep us safe. That means we must pass the USA
FREEDOM Act without change and without any more unnecessary delay.
Mr. President, I yield to the Senator from Utah.
Mr. LEE. Mr. President, I first want to thank my friend and
colleague, the senior Senator from Vermont, for his tireless work on
this issue. Senator Leahy and I, along with Senator Heinrich and so
many others who are participating in this process, have worked together
to develop a legislative strategy that is both bicameral and
bipartisan. This legislation we are about to vote on today was passed
with an overwhelming supermajority in the House of Representatives--338
votes to 88 votes. This is a testament to the fact that in so many
instances there is more that unites us than divides us in today's
political environment. This is an example of the type of win-win
situation we can develop.
This bill protects America's national security, and it does so in a
way that is respectful of the privacy interests and both the letter and
the spirit of the Fourth Amendment.
The American people understand intuitively that it is none of the
government's business whom they are calling, when they are calling
them, who calls them, and how long their calls last. The American
people intuitively understand what graduate researchers have confirmed,
which is that this type of calling data--even just the data itself, not
anything having to do with recorded conversations, just the data--
reveals a lot about an individual, about his or her political
preferences, religious views, marital status, the number of children
the person may have, and all kinds of interests that are none of the
government's business.
Moreover, the way this data is collected is inconsistent with the way
our government is supposed to operate. Rather than going out and
demonstrating some type of connection between the data set requested
and a particular investigation, under the current system the government
simply issues orders saying: Send us all of your data. Send us all your
data on all calls made by all of your customers. We want all of it. If
that means 300 million phone numbers, we want all of that regardless of
its connection to any suspected terrorist operation.
That is wrong. Our bill would change that, and it would change it
quite simply by requiring the government to request information
connected to a particular phone number--a phone number that is itself
suspected of being involved in some type of terrorist activity.
This bill represents a good compromise. This bill represents reason.
This bill would protect America's national security while also
protecting privacy. This bill, in so doing, recognizes that our privacy
is not and ought not ever be deemed to be in conflict with our
security. Our privacy is, in fact, part of our security.
We are, unfortunately, considering this bill with too little time
left. In effect, we are considering this bill after the PATRIOT Act
provisions at issue have expired. This is unfortunate. It was
unnecessary, and it represents a longstanding bipartisan problem within
the Senate--a problem pursuant to which we establish cliffs. We
establish these artificially designed deadlines.
We have known about this particular deadline for 4 years. For 4
years, we knew these provisions were going to expire. We should have
taken up these provisions far in advance of now. Many of us tried. We
did so unsuccessfully. Senator Leahy and I and others have been working
on this legislation for years. We have been ready, willing, eager, and
anxious to do so, and we haven't been able to do so until very
recently. Now, because of the fact that these provisions have expired,
it is incumbent upon us to move these things forward in all deliberate
speed.
Whatever the outcome of this vote and of those votes which will
follow later today, the American people deserve better than this. Vital
national security programs that touch on our fundamental civil
liberties deserve a full, open, honest, and unrushed debate. This
should not be subject to cynical, government-by-cliff brinksman-
ship. If Members of Congress--particularly Republican Members of
Congress--ever want to improve their standing among the American
people, then we must abandon this habit of political gamesmanship.
Finally, it is time for us to pass this bill--this bill which passed
overwhelmingly in the House of Representatives, this bill which
carefully balances important interests the American people care deeply
about.
[[Page S3424]]
I urge my colleagues to support this legislation.
Mr. President, this week the Senate will consider the USA FREEDOM Act
of 2015, H.R. 2048. I am proud to have introduced the Senate companion
to this bill, S. 1123, along with Senator Patrick Leahy, ranking member
of the Senate Judiciary Committee. We have worked closely with our
partners in the House of Representatives, House Judiciary Committee
Chairman Bob Goodlatte, Ranking Member John Conyers, and Congressmen
Jim Sensenbrenner and Jerrold Nadler.
Since revelations in June 2013 that the National Security Agency was
secretly and indiscriminately collecting Americans' telephone records,
Senator Leahy and I have worked together on legislation to end this
mass surveillance program and to enact greater transparency and
oversight over the government's intelligence gathering operations. The
USA FREEDOM Act of 2015 is the result of that 2-year collaboration, and
it contains strong reforms. Most importantly, it would definitively end
the NSA's bulk collection of Americans' telephone metadata and ensure
that the Foreign Intelligence Surveillance Act pen register statute and
the national security letter statutes cannot be used to justify bulk
collection.
On May 13, 2015, the House passed the USA FREEDOM Act by an
overwhelming, bipartisan 338-to-88 vote. More than 80 percent of House
Republicans and 75 percent of House Democrats voted for the bill,
including the chairmen and ranking members of the House Judiciary and
Intelligence Committees, as well as the leadership of both parties.
The resounding vote in the House is a direct result of the
commonsense and meaningful reforms contained in the bill. It is also a
testament to the will of the American people, who have been unequivocal
in their demand for reform and their demand that the NSA stop the
indiscriminate collection of their private records.
As our colleagues in the Senate consider the USA FREEDOM Act of 2015,
Senator Leahy and I want to detail the extensive legislative process
undertaken to develop this bill and provide additional clarity on the
bill's provisions.
Senator Leahy, I know that you have a long history of pushing for
meaningful oversight and transparency of our government's intelligence
gathering operations.
Mr. LEAHY. I thank the Senator from Utah for his advocacy on behalf
of Americans' privacy rights and for his dedicated efforts to end the
NSA's illegal program.
In June 2013, Americans learned for the first time that section 215
of the USA PATRIOT Act has for years been secretly interpreted to
authorize the collection of Americans' phone records on an
unprecedented scale. And they learned that the NSA has engaged in
repeated, substantial legal violations in its implementation of section
215 and other surveillance authorities.
Since that time, Congress and the American public have been engaged
in an important debate about the breadth of government surveillance
powers and the legal rationale used to authorize the collection of
Americans' data. Under my chairmanship last Congress, the Senate
Judiciary Committee held six open and public hearings that sharpened
the committee's thinking and furthered the public dialogue on these
important issues. Senator Lee, Congressman Jim Sensenbrenner,
Congressman John Conyers, and I introduced bicameral, bipartisan
legislation, the USA FREEDOM Act of 2013, S. 1599/H.R. 3361, on October
29, 2013, to end bulk collection and reform our surveillance laws. The
President announced his support for ending the bulk collection of
Americans' phone records in March 2014. The House of Representatives
passed a new version of the USA FREEDOM Act in May 2014, and after
lengthy discussions with the executive branch, the technology industry,
privacy advocates, and other stakeholders, Senator Lee and I introduced
the USA FREEDOM Act of 2014, S. 2685, on July 29, 2014. On November 18,
2014, the full Senate failed to invoke cloture on the motion to proceed
to the USA FREEDOM Act of 2014, by a vote of 58 to 42.
Despite falling two votes shy last Congress, Senator Lee and I knew
that the May 31, 2015, expiration date was approaching, and we
continued to work on a bill to reform these authorities. Senator Lee,
can you explain the process we have undertaken this year?
Mr. LEE. Since November 2014, Senator Leahy and I have been engaged
in conversations with House Judiciary Committee Chairman Goodlatte,
Ranking Member Conyers, and Congressmen Sensenbrenner and Nadler to
develop a new version of the USA FREEDOM Act. After extensive
negotiations with the administration, intelligence community officials,
privacy and civil liberties groups, the technology industry, and other
stakeholders, we introduced the USA FREEDOM Act of 2015, S. 1123/H.R.
2048, on April 28, 2015.
Of course, the USA FREEDOM Act of 2015 was not introduced in a
vacuum. Nearly 2 years ago, on June 5, 2013, the Guardian newspaper
published an article and posted a classified FISA Court order revealing
that the U.S. Government had been engaging in the bulk collection of
Americans' telephone metadata. One day later, on June 6, 2013, the
Washington Post published an article and posted further classified
information about a separate government surveillance program called
PRISM involving the collection of the contents of Internet
communications. The administration subsequently acknowledged that the
NSA's bulk collection of telephone metadata was being conducted
pursuant to section 215 of the USA PATRIOT Act. The NSA's PRISM program
to collect the contents of Internet communications of certain overseas
targets was being conducted pursuant to section 702 of FISA, which was
enacted as part of the FISA Amendments Act.
Once these programs were revealed, then-Chairman Leahy convened a
number of hearings so that the American people could better understand
what the NSA was doing.
Senator Leahy, can you remind us of the Judiciary Committee's
activities in the 113th Congress?
Mr. LEAHY. As I mentioned, during the last Congress, the Senate
Judiciary Committee held six open, public hearings to examine the legal
basis, effectiveness, and impact of these programs on Americans'
privacy rights and civil liberties. We heard testimony from a wide
range of government officials, legal scholars, technologists, and
outside experts as the Committee sought to understand and evaluate the
numerous issues raised by these activities.
On July 31, 2013, I chaired the first full Judiciary Committee
hearing to examine government surveillance programs with administration
officials and outside experts. At the hearing, the NSA Deputy Director
confirmed that the NSA's bulk telephony program did not help to thwart
dozens of terrorist plots, as some administration officials defending
the program had been contending. He confirmed that section 215 was only
uniquely valuable in thwarting one terrorist ``plot''--the case of
Basaaly Moalin, a Somali immigrant who was convicted of material
support for sending $8,500 to al-Shabaab in Somalia.
As a result of continued public debate about the government's
surveillance activities, on August 9, 2013, President Obama announced
that he was ordering the Director of National Intelligence, DNI, to
establish a group of outside experts to review the government's
intelligence and communications technologies and provide
recommendations on possible reforms to surveillance authorities. He
also announced the public release of additional documents, including a
Department of Justice white paper outlining the legal justification for
the section 215 bulk collection program.
Over the course of the following months, the DNI declassified and
released a host of documents related to activities conducted under
section 215 of the USA PATRIOT Act and section 702 of FISA. The
released documents detailed serious incidents of noncompliance and
violations of law in implementing both of these programs. For example,
the documents revealed that for several years, the NSA was unlawfully
collecting thousands of wholly domestic emails and other electronic
communications as part of its section 702 collection. In addition, FISA
Court orders relating to the section 215 program revealed significant
compliance problems and were highly critical of the NSA's oversight and
operation of the program.
[[Page S3425]]
On October 2, 2013, I chaired a second full Judiciary Committee
hearing on government surveillance authorities. NSA Director Alexander
revealed for the first time that the NSA had previously conducted a
pilot program to test its capability of handling location data as part
of the section 215 phone records program, although he emphasized that
it was only a test. The second panel of witnesses at the hearing
testified about the government's legal justification for the collection
of telephone records under section 215. A technologist and computer
scientist provided testimony to illustrate the power of metadata and
the blurring distinction between content and metadata in the digital
age.
Shortly after that hearing, on October 29, 2013, I joined with
Senator Lee, Congressman Sensenbrenner, and Congressman Conyers to
introduce the bipartisan, bicameral USA FREEDOM Act of 2013 to
comprehensively reform a range of surveillance authorities. This
legislation served as the basis for many of the reforms Congress is now
debating.
On November 13, 2013, Senator Franken chaired a Judiciary Committee
subcommittee hearing on legislation that he had introduced, the
Surveillance Transparency Act of 2013, components of which were
included in the USA FREEDOM Act. Government witnesses testified about
executive branch efforts to promote greater transparency of
surveillance activities. In addition, several outside witnesses,
including representatives from the U.S. technology industry, spoke
about the economic harm and damage to American technology companies as
a result of revelations of government surveillance activities. These
witnesses testified that American businesses stand to lose billions of
dollars in the coming years as a result of revelations about U.S.
surveillance activities.
On November 18, 2013, the DNI declassified and released a host of
documents related to a previously classified program that collected
bulk Internet metadata. The documents included a FISA Court opinion
authorizing the bulk collection of Internet metadata under the FISA pen
register and trap and trace device authority. As with the section 215
telephone metadata program, the declassified documents revealed that
the bulk Internet metadata collection program also encountered major
compliance problems during its operation. In 2011, the program was
ended by the government because it was not meeting operational
expectations.
On December 9, 2013, eight leading technology companies--AOL, Apple,
Facebook, Google, LinkedIn, Microsoft, Twitter, and Yahoo!--wrote an
open letter to President Obama and Congress laying out five
surveillance reform proposals. The companies called for a prohibition
on the bulk collection of Internet data and argued that governments
should limit surveillance to specific, known users for lawful purposes.
The companies also urged stronger checks and balances, including an
adversarial process at the FISA Court.
On December 11, 2013, the Judiciary Committee held its fourth hearing
on these issues. At the hearing, government witnesses discussed the
possibility of placing a privacy advocate at the FISA Court, the
recently declassified documents about the bulk collection of Internet
metadata, and the scope of collection that is permitted under
traditional section 215 orders. We learned that the problems with the
Internet metadata program were so severe that the FISA Court suspended
the program entirely for a period of time before approving its renewal.
But then, in 2011, the government ended this Internet metadata program
because, as Director Clapper explained, it was no longer meeting
``operational expectations.'' However, senior government lawyers
testified that under the statute, there was no legal impediment to
restarting this bulk Internet data collection program. If the executive
branch--or a future administration--wanted to do so, it would simply
apply for an order from the FISA Court.
On December 18, 2013, the President's Review Group on Intelligence
and Communications Technology publicly released its final report, which
included 46 recommendations and findings to reform government
surveillance activities. The review group members included Richard
Clarke, former counterterrorism adviser to Presidents George H.W. Bush,
Bill Clinton, and George W. Bush; Michael Morell, former Acting
Director of the CIA; Geoffrey Stone, professor at the University of
Chicago Law School; Cass Sunstein, Harvard Law School professor and
former senior OMB official in the Obama administration; and Peter
Swire, a professor at the Georgia Institute of Technology and former
adviser to Presidents Obama and Clinton. They concluded that the
section 215 phone records program had not been essential to national
security, saying: ``The information contributed to terrorist
investigations by the use of section 215 telephony meta-data was not
essential to preventing attacks and could readily have been obtained in
a timely manner using conventional section 215 orders.'' The review
group further stated that ``Section 215 has generated relevant
information in only a small number of cases, and there has been no
instance in which NSA could say with confidence that the outcome would
have been different without the section 215 telephony meta-data
program.''
This sort of massive surveillance presents significant privacy
implications in the digital age, and the review group's report provided
valuable insights. The report explained that keeping a record of every
phone call an individual has made over the course of several years
``can reveal an enormous amount about that individual's private life.''
The report further explained that in the 21st century, revealing
private information to third party services ``does not reflect a lack
of concern for the privacy of the information, but a necessary
accommodation to the realities of modern life.'' And the report
questioned whether we can continue to draw a rational line between
communications metadata and content. This is a critically important
question given that many of our surveillance laws depend upon the
distinction between the two.
The review group also addressed the national security letter, NSL,
statutes. Using NSLs, the FBI can obtain detailed information about
individuals' communications records, financial transactions, and credit
reports without judicial approval. Recipients of NSLs are subject to
permanent gag orders. The review group report made a series of
important recommendations to change the way national security letters
operate. I have been fighting to impose additional safeguards on this
controversial authority for years--to limit their use, to ensure that
NSL gag orders comply with the First Amendment, and to provide
recipients of NSLs with a meaningful opportunity for judicial review.
Following release of the review group's report, the Judiciary
Committee then held its fifth hearing on the NSA's programs and called
the members of the review group to testify. On January 14, 2014, the
members of the review group testified before the Senate Judiciary
Committee and explained that in light of changing technology and the
creation of more and more data, it recommended transitioning to a
system where the government does not hold massive databases of
Americans' metadata. Rather, metadata could be held by providers or a
third party, and could be searched by the government only with advance
judicial approval. The five members of the panel made clear that while
we must always consider ongoing threats to national security,
policymakers should consider all of the risks associated with
intelligence activities: the risk to individual privacy, to free
expression and freedom of association, to an open and decentralized
Internet, to America's relationships with other nations, to trade and
commerce, and to maintaining the public trust.
Following the review group's report, in January 2014, President Obama
took an important step to restore American's privacy and civil
liberties by embracing the growing consensus that the section 215 phone
records program should not continue in its current form. During a
speech at the Department of Justice, the President announced that he
had directed the intelligence community to develop alternatives to the
program and asked the Justice Department to seek advance judicial
approval from the FISA Court to query the section 215 phone call
database. Additionally, he ordered the
[[Page S3426]]
government to limit searches of the section 215 database to two
``hops,'' instead of three. He also recommended reforms to the secrecy
surrounding national security letters.
A January 23, 2014, report by the Privacy and Civil Liberties
Oversight Board, PCLOB, added to the growing chorus calling for an end
to the government's dragnet collection of Americans' phone records. On
February 12, 2014, the Judiciary Committee held its sixth public
hearing, this time with the members of the PCLOB to explain the
conclusions in their report. As with the President's review group, the
PCLOB report likewise determined that the section 215 program has not
been effective, saying: ``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.''
The PCLOB report also provided the public with a detailed
constitutional and statutory analysis of this program and concluded
that the program ``lacks a viable legal foundation under Section 215''
and ``implicates constitutional concerns under the First and Fourth
Amendments.'' The PCLOB report further revealed that although the FISA
Court first authorized this program in 2006, it did not issue an
opinion setting forth a full legal and constitutional analysis of the
program until 2013.
In March 2014, after consulting with the intelligence community,
President Obama announced that his administration would work with
Congress to pass legislation to end the NSA's section 215 bulk phone
records collection program and to transition to a new program in which
the data is not held by the government. Ending bulk collection is a key
element of what I, Senator Lee, and others have included in the various
iterations of the USA FREEDOM Act.
After the President's announcement, the House of Representatives took
action. Senator Lee, would you like to expand on what transpired in the
House?
Mr. LEE. On May 5, 2014, House Judiciary Committee Chairman Goodlatte
announced that he had agreed with Representatives Sensenbrenner and
Conyers on a new version of the USA FREEDOM Act. On May 7, 2014, the
House Judiciary Committee voted unanimously to report this revised USA
FREEDOM Act. The next day, the House Permanent Select Committee on
Intelligence convened a markup to consider the version of the bill
reported by the House Judiciary Committee and voted unanimously to
report the bill to the full House.
Following action by the House Judiciary and Intelligence Committees,
further changes to the text of the reported bill were considered and a
substitute amendment to the USA FREEDOM Act was unveiled on May 20,
2014, when the House Rules Committee adopted a rule for floor
consideration. Following the release of the substitute amendment, some
concerns were raised that the substitute amendment did not effectively
prohibit bulk collection, even though that was clearly its intent. On
May 22, 2014, the House of Representatives passed the amended version
of the USA FREEDOM Act by a vote of 303 to 121. Many of those who voted
no on the bill did so because they were concerned that its reforms did
not go far enough.
After the House passed its version of the USA FREEDOM Act, Senator
Leahy and I worked hard to build on that legislation.
Senator Leahy, can you talk about what led to the USA FREEDOM Act of
2014, S. 2685?
Mr. LEAHY. Immediately following passage of the House version in May
2014, Senator Lee and I began working to address concerns that the text
of the House bill, although clearly intended to end bulk collection,
did not do so effectively. We spent several months in discussions with
the intelligence community and a wide range of stakeholders, including
other Senators, privacy and civil liberties groups, and the U.S.
technology industry, to build on the framework established by the
House-passed bill.
Those negotiations led to the introduction of the USA FREEDOM Act of
2014, S. 2685, on July 29, 2014. More than 50 organizations, interest
groups, trade associations, and technology companies from across the
political spectrum publicly endorsed the bill. On September 2, 2014,
the Attorney General and DNI wrote a letter in support of the USA
FREEDOM Act of 2014. The letter noted that the bill preserved the
intelligence community's capabilities while also enhancing privacy and
civil liberties and increasing transparency. Likewise, members of the
President's review group wrote a letter to myself and Senator Grassley,
explaining that the USA FREEDOM Act of 2014 was consistent with the
recommendations contained in their December 2013 report.
On November 12, 2014, Senator Reid filed cloture on the motion to
proceed to the USA FREEDOM Act of 2014. A few days later, on November
17, 2014, the Obama administration released a Statement of
Administration Policy on the USA FREEDOM Act of 2014 strongly
supporting passage.
Despite the wide-ranging support for these commonsense reforms, on
November 18, 2014, the full Senate failed to invoke cloture on the
motion to proceed to the USA FREEDOM Act of 2014, by a vote of 58 to
42. I was extremely disappointed that the Republican leadership in the
Senate decided to use a procedural vote to block debate and amendments
on such an important piece of legislation.
With the start of the 114th Congress, Senator Lee and I began
discussions with the House to develop a new version of the USA FREEDOM
Act. We knew that the June 1, 2015, sunset of several surveillance
authorities, including section 215 of the USA PATRIOT Act, would come
up fast. For several months, we engaged in conversations with House
Judiciary Committee Chairman Goodlatte, Representative Sensenbrenner,
and House Judiciary Committee Ranking Member Conyers, as well as
officials from the administration, intelligence community, privacy and
civil liberties groups, the technology industry, and other stakeholders
on a path forward. Those extensive deliberations produced another set
of bipartisan, bicameral surveillance reforms to end the bulk
collection of Americans' phone records and amend other surveillance
laws.
On April 28, 2015, Senator Lee and I introduced the USA FREEDOM Act
of 2015, S. 1123, and Representatives Sensenbrenner, Goodlatte,
Conyers, Nadler, and others in the House introduced the House
companion, H.R. 2048. The Senate version of the bill was originally
cosponsored by Senators Heller, Durbin, Cruz, Franken, Murkowski,
Blumenthal, Daines, and Schumer. It has also received the support of
the administration, privacy groups, and the technology industry.
On May 11, 2015, the Attorney General and Director of National
Intelligence wrote a letter in strong support of the USA FREEDOM Act of
2015. The letter notes that the legislation ``is a reasonable
compromise that preserves vital national security authorities, enhances
privacy and civil liberties and codifies requirements for increased
transparency.'' The Obama administration also issued a Statement of
Administration Policy on May 12, 2015, in strong support of the USA
FREEDOM Act of 2015.
In early May, as the House and Senate were preparing to consider the
USA FREEDOM Act of 2015, the Second Circuit issued a decision
confirming what we knew all along.
Senator Lee?
Mr. LEE. It did. On May 7, 2015, a three-judge panel from the U.S.
Court of Appeals for the Second Circuit unanimously concluded that the
NSA's bulk collection program is illegal. The court held that section
215 of the USA PATRIOT Act does not authorize bulk collection of
Americans' private records and roundly rejected the argument that all
of our phone records can be ``relevant'' to any particular authorized
investigation.
In ACLU v. Clapper, the Second Circuit provided a detailed statutory
and legal analysis of section 215 and the bulk collection program. It
stated that the government's ``expansive'' interpretation of
``relevance'' in the context of Section 215 ``is unprecedented and
unwarranted.'' The court further stated:
The interpretation that the government asks us to adopt
defies any limiting principle. The same rationale that it
proffers for the ``relevance'' of telephone metadata cannot
be cabined to such data, and applies
[[Page S3427]]
equally well to other sets of records. If the government is
correct, it could use Sec. 215 to collect and store in bulk
any other existing metadata available anywhere in the private
sector, including metadata associated with financial records,
medical records, and electronic communications (including e-
mail and social media information) relating to all Americans.
Such expansive development of government repositories of
formerly private records would be an unprecedented
contraction of the privacy expectations of all Americans.
The court also rejected the government's attempt to compare the NSA's
section 215 orders for bulk collection of telephony metadata to grand
jury subpoenas, citing the expansive scope and breadth of the
information requested. The court correctly noted:
The sheer volume of information sought is staggering; while
search warrants and subpoenas for business records may
encompass large volumes of paper documents or electronic
data, the most expansive of such evidentiary demands are
dwarfed by the volume of records obtained pursuant to the
orders in question here. . . . The government can point to no
grand jury subpoena that is remotely comparable to the real-
time data collection undertaken under this program.
While the Second Circuit held that the NSA bulk collection program
was illegal, it did not issue a preliminary injunction to enjoin the
program. The Second Circuit remanded the case with instructions for the
district court to consider whether an injunction was appropriate in
light of the upcoming June 1, 2015, expiration of section 215 and
ongoing efforts in Congress to enact legislation before the sunset.
As both Senator Leahy and I have mentioned, the USA FREEDOM Act of
2015 passed the House of Representatives less than a week later by an
overwhelming and bipartisan vote of 338 to 88.
In order to aid Senators' consideration of this bill, and to prevent
misinterpretations of Congress's intent, we want to state clearly that
we agree with the section-by-section analysis contained in House Report
114-109, ``UNITING AND STRENGTHENING AMERICA BY FULFILLING RIGHTS AND
ENSURING EFFECTIVE DISCIPLINE OVER MONITORING ACT OF 2015,'' to
accompany H.R. 2048 as adopted by the House Judiciary Committee on May
8, 2015. There are a few additional matters that Senator Leahy and I
should take an opportunity to clarify. Senator Leahy?
Mr. LEAHY. The core of this legislation is its prohibition on the
bulk collection of records under section 215 of the USA PATRIOT Act,
the FISA pen register and trap-and-trace device statute, and the
national security letter statutes. Though there are some minor wording
changes, these provisions are substantively identical to the version in
the USA FREEDOM Act of 2014. For section 215 and the FISA pen register
and trap and trace device statutes, under the bill the government must
use a ``specific selection term'' to limit its collection and
demonstrate reasonable grounds to believe that the records sought are
relevant to the underlying investigation, which cannot be a threat
assessment. These requirements are independent of each other, and both
must be satisfied.
The USA FREEDOM Act of 2015 is being considered with full knowledge
of the Second Circuit's decision in ACLU v. Clapper and its
interpretation of the term ``relevant,'' which rejects the prior
reading of the Foreign Intelligence Surveillance Court. According to
the Second Circuit, information that the government seeks to obtain
must be presently relevant to the specific underlying investigation.
The Second Circuit correctly noted:
``Relevance'' does not exist in the abstract; something is
``relevant'' or not in relation to a particular subject.
Thus, an item relevant to a grand jury investigation may not
be relevant at trial. In keeping with this usage, Sec. 215
does not permit an investigative demand for any information
relevant to fighting the war on terror, or anything relevant
to whatever the government might want to know. It permits
demands for documents ``relevant to an authorized
investigation.'' The government has not attempted to identify
to what particular ``authorized investigation'' the bulk
metadata of virtually all Americans' phone calls are
relevant. Throughout its briefing, the government refers to
the records collected under the telephone metadata program as
relevant to ``counterterrorism investigations,'' without
identifying any specific investigations to which such bulk
collection is relevant. . . . Put another way, the government
effectively argues that there is only one enormous ``anti-
terrorism'' investigation, and that any records that might
ever be of use in developing any aspect of that investigation
are relevant to the overall counterterrorism effort. The
government's approach essentially reads the ``authorized
investigation'' language out of the statute. Indeed, the
government's information-gathering under the telephone
metadata program is inconsistent with the very concept of an
``investigation.''
The USA FREEDOM Act of 2015 reauthorizes section 215, but it does so
in light of the understanding of how the Second Circuit interprets
``relevance.''
Mr. LEE. I agree that the new requirement for a ``specific selection
term'' in the USA FREEDOM Act of 2015 is separate from the requirement
of ``relevance.'' I would like to clarify one last point. Section 104
of the bill authorizes the FISA Court to impose additional,
particularized minimization procedures for information obtained under
section 501 of FISA. That section provides that the FISA Court may
impose additional procedures related to ``the destruction of
information within a reasonable time period.'' That provision therefore
provides authority for the FISA Court to specify a time period within
which the government must destroy information.
Mr. LEAHY. I have been proud to work with Senator Lee for nearly 2
years to develop the legislation that we have been discussing. It has
involved many hours of hard work over many months. The result is a
solid bill with a set of commonsense reforms that has overwhelming
support. The Senate should pass it today.
Cloture Motion
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will state.
The senior assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on H.R. 2048, an
act to reform the authorities of the Federal Government to
require the production of certain business records, conduct
electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, and criminal
purposes, and for other purposes.
Mitch McConnell, John Cornyn, Ron Johnson, Dean Heller,
Steve Daines, Cory Gardner, Johnny Isakson, Richard
Burr, Tim Scott, James Lankford, Jeff Flake, Mike Lee,
Lisa Murkowski, John Barrasso, Thom Tillis, Chuck
Grassley, Richard C. Shelby.
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair now directs
the clerk to call the roll to ascertain the presence of a quorum.
Mr. LEAHY. Mr. President, I ask unanimous consent that we waive the
mandatory quorum.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The question is, Is it the sense of the Senate that debate on H.R.
2048, an act to reform the authorities of the Federal Government to
require the production of certain business records, conduct electronic
surveillance, use pen registers and trap and trace devices, and use
other forms of information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other purposes, shall
be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Missouri (Mr. Blunt) and the Senator from South Carolina
(Mr. Graham).
Mr. DURBIN. I announce that the Senator from Virginia (Mr. Warner) is
necessarily absent.
The PRESIDING OFFICER (Mrs. Fischer). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 83, nays 14, as follows:
[Rollcall Vote No. 197 Leg.]
YEAS--83
Alexander
Ayotte
Baldwin
Bennet
Blumenthal
Booker
Boozman
Boxer
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Coats
Cochran
Collins
Coons
Corker
Cornyn
Cruz
Daines
Donnelly
Durbin
Feinstein
Fischer
Flake
Franken
Gardner
Gillibrand
Grassley
Hatch
Heinrich
Heitkamp
[[Page S3428]]
Heller
Hirono
Hoeven
Inhofe
Isakson
Johnson
Kaine
King
Kirk
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Perdue
Peters
Portman
Reed
Reid
Rounds
Sasse
Schatz
Schumer
Scott
Shaheen
Stabenow
Sullivan
Tester
Thune
Tillis
Toomey
Vitter
Warren
Whitehouse
Wicker
Wyden
NAYS--14
Barrasso
Cotton
Crapo
Enzi
Ernst
Moran
Paul
Risch
Roberts
Rubio
Sanders
Sessions
Shelby
Udall
NOT VOTING--3
Blunt
Graham
Warner
The PRESIDING OFFICER. On this vote, the yeas are 83, the nays are
14.
Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
The majority whip.
Mr. CORNYN. Madam President, the Senate will hold a series of votes
this afternoon on the underlying bill, and I think it is important for
all of us to understand exactly what those amendments will do.
The underlying House bill makes some changes in the way the National
Security Agency operates and uses what the Supreme Court of the United
States has held is not private information--in other words, the time,
duration, and number involved in a telephone call that is contained in
a typical telephone bill.
The Supreme Court of the United States has said there is no right of
privacy in that information. As the Senate knows, what the House bill
does is it leaves these phone records in the possession of the
telephone company. Then, over a period of 6 months, the National
Security Agency is supposed to come up with a means of querying those
records in the possession of the various phone companies.
Some, like me, have wondered why it is that we are trying to fix a
system that is not broken, because there is absolutely no documented
record of any abuse of this information as it is currently retained by
the NSA. The way it is used is to help the intelligence community
discover people who have communicated with known or suspected
terrorists abroad in a way that will help to provide an additional
piece of data that will hopefully help them prevent terrorist attacks
from occurring on our home soil.
The FBI Director has said that in the 56 field offices in the United
States, every single one of these field offices has an open inquiry
with regard to potential homegrown terrorist attacks.
As I mentioned before, in Garland, TX, just a few weeks ago, two men
traveled from Phoenix, AZ, and obtained full-body armor and automatic
weapons and were prepared to wreak havoc and murder innocent people in
Garland, TX, because they were exercising their First Amendment rights
and were displaying cartoons that these two jihadists felt insulted the
Prophet Muhammad.
Thanks to the good police work of a Garland police officer, both of
those people were taken out of action before they could kill anybody
there at that site. But why in the world would we want to take away
from our intelligence authorities the ability to detect whether
individuals, such as these two jihadists from Phoenix who traveled to
Garland, had been communicating with known terrorist telephone numbers
in Syria or anywhere else in the world? These are foreign telephone
numbers that are matched up and provide an essential link and, really,
a tripwire for the intelligence community.
What the amendments that we will vote on this afternoon would do is
to slow the transition from NSA storage to the telephone company
stewardship from the 6 months prescribed in the underlying bill. For
those who believe that the underlying bill is the correct policy, I do
not know why they would object to a little bit of extra time so we can
make sure that this is going to work as intended.
Indeed, the second amendment does relate specifically to that. It
would require a certification by the Director of National Intelligence
that the software is actually in place that will allow the National
Security Agency to query the phone records in the possession of the
telephone companies.
Another amendment would provide that the Foreign Intelligence
Surveillance Court, which is a group of experienced Federal judges who
review the requests from the FBI and other law enforcement authorities,
would be able to query these telephone records. It would establish a
panel of experts, so to speak, to argue against the government's case
in front of the Foreign Intelligence Surveillance Court. As somebody
who used to be a judge for some time, this is a rather strange
provision because what it does, essentially, is to put a defense
attorney in the grand jury room and create an adversarial process at
the early stages of an investigation, which may or may not lead up to
an indictment in that case.
The final amendment would require the phone companies to notify
Congress if they are going to change their policy for retaining
customer records. This is a serious concern because it could well be
that some telephone companies will start marketing to potential
customers that they will not retain any records, thus eliminating an
important tool which helps keep Americans safe and has absolutely zero
threat to civil liberties.
There has been so much misrepresentation about what this so-called
metadata program has done. I think that is one of the reasons we find
ourselves here today. Many who believe the program is useful are
reluctant to even talk about it in public because, as we know, so much
of what is done to protect our country is classified. So rather than
have a public debate and actually correct the misstatements of fact and
the demagoguery that unfortunately attends this subject, many people
are simply confused about what exactly is going on and what Congress is
doing. But I would just point out that oversight of these programs is
absolutely rigorous. It is executive, judicial, and legislative
oversight. It is not a matter of trust as to whether these programs
work the way they are supposed to; it is actually verified on a regular
basis, universally verified.
Also, we have to go before these Federal judges known as a FISA
Court--a Foreign Intelligence Surveillance Court--in order to make our
case. Unless we can make our case to these judges that there is reason
to continue the investigation, they will shut it down.
One of the things I think we have forgotten is that we want to treat
intelligence gathering and prevention as we do ordinary law
enforcement. What I mean by that is that ordinarily, in the criminal
law context, government doesn't get involved in a case unless something
bad has already happened. If there has been an explosion or a murder or
a bank robbery or something like that, it is after the fact that we try
to figure out what happened and then, if we can, to identify the
perpetrator and to bring them to justice. That satisfies an important
need in our society to enforce our criminal law, but that is far
different from what our intelligence community is supposed to be doing
because they are supposed to be detecting threats and intervening in
those ongoing schemes and stopping them before they ultimately occur.
That is the important lesson we learned on 9/11. Unfortunately, it
has been so long ago now that many people have simply forgotten or they
don't feel as though this is an imminent threat. But when Director
Comey says they have open inquiries in all 56 FBI field offices about
the potential threat of homegrown terrorists, I take that very
seriously. I believe it is absolutely reckless for us to take any
unnecessary chances.
There are some who say this underlying bill is important because
instead of the National Security Agency collecting these telephone
numbers, we are going to leave the data with the telephone companies.
But none of the people who are going to be querying these records at
the phone companies have security clearances. One can just imagine the
potential for abuse at the phone companies of these phone records once
they receive some sort of request from the government.
We know the current system as run at the National Security Agency is
subject to rigorous oversight, as I mentioned. In addition to the
executive, judicial, and legislative oversight, we actually have a
private and civil liberties
[[Page S3429]]
oversight board which makes sure that we strike the right balance.
Nobody wants to see the privacy rights of American citizens undermined,
but we all are adult enough to know that there has to be a balance and
that in order to provide for security and to avoid terrorist attacks
such as occurred on 9/11, we are going to have to take some actions to
reach the right balance, and I believe the current law does that.
Unfortunately, we have a traitor such as Edward Snowden who
selectively leaked certain portions of this program, and it has created
an uproar. I think that unfortunately, as a result of his leaks and the
ensuing political environment after that, America is at greater risk,
and that is a terrible shame.
So I think it is reckless to take a chance. We have been fortunate
that there have been no terrorist attacks on our homeland since 9/11.
Well, I take that back. Five years ago, at Fort Hood, MAJ Nidal Hasan
killed 13 people and injured 30-something more. Of course, we know now
that he had been in constant communication over the Internet with Anwar
al-Awlaki, who subsequently was killed in a drone strike--even though
he was an American citizen--overseas. He was overseas because he was
recruiting people to Islamic extremism, including Nidal Hasan, who
killed 13 people at Fort Hood 5 years ago.
It is simply a fact that the Fourth Amendment of the U.S.
Constitution involving searches and seizures doesn't apply to foreign
terrorists; it applies to Americans. Under the procedures used under
current law, all requests for additional information are subject to
Federal court supervision and permission.
So we will vote on a number of amendments this afternoon. I can tell
my colleagues, after talking to a number of our colleagues, many of
them have said they don't really have any disagreement over the content
or the policy of these amendments. Actually, these amendments are
designed to try to strengthen the underlying House bill.
We all understand that the House is going to prevail in the basic
structure of the underlying piece of legislation, but since when did
the U.S. Senate outsource its decisionmaking to the other body across
the Capitol? We have a bicameral legislature--a Senate and a House--for
a reason. We know we make better decisions when we have consultation
between the two branches of the legislature--not capitulation but
consultation. The Senate should not be a rubberstamp for the House or
vice versa.
I have heard some of our colleagues say that if the Senate were to
change a period or a comma or a dash in the underlying legislation, it
would be a poison pill, that the House would reject it and we would
have nothing to show for our efforts. But I have great faith that if
the Senate will do its job and vote to pass these underlying amendments
and strengthen this underlying bill, the House will take up the bill
and vote on it and it will pass. So if my colleagues feel as though
these amendments would actually strengthen the underlying House bill
and represent good policy, why in the world would they vote against
these amendments because of some fantasy that the House will simply
reject any changes at all? Why would they essentially capitulate any of
their prerogatives as U.S. Senators to represent their constituents in
this body? We all know we make better decisions in consultation with
other people.
Certainly I think it is true that the House's bill is not holy writ.
It is not something we have to accept in its entirety without any
changes. I think where the policy debate should go would be to embrace
these amendments and to say that we understand the House wants to
change the current custody policy of these phone records and leave them
with the phone company, but we sure need to know the new system will
actually work. Doesn't that make sense? That is why the certification
from the Director of National Intelligence is so important. It makes
sense to provide a little bit more time--from 6 months to a year--in
order to make sure this transition goes smoothly.
I know no Member of the Senate and no Member of the House and no
American wants to look back on our hasty treatment of this underlying
legislation and say: If we were just a little more careful, if we had
just taken a little bit more time, if we had just been a little more
thoughtful, a little more deliberative, and talked about the facts as
they are and not some misrepresentation of the facts, we could have
actually prevented a terrorist attack on our home soil.
Unfortunately, by increasing the risk to the American people, as I
believe this underlying legislation will do, we may not find out about
that until it is too late. I hope and pray that is not the case, but
why should we take the risk to the homeland? Why should we risk anyone
being injured or potentially killed as a result of a homegrown
terrorist attack on our own soil because we have simply blinded
ourselves in a significant way to the risks? Not that this is a
panacea, not that this is some litmus test, but it is one essential
piece of information that will help law enforcement make the case to
not just prosecute crimes after they occur but to prevent them from
occurring in the first place through the good and sound use of
constitutional intelligence gathering in a way that respects the
privacy of all Americans but lives up to our first and foremost
responsibility, and that is to keep the American people safe.
Madam President, I yield to the distinguished ranking member.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, nobody disputes that we all want to keep
America safe. We all agree on that. We also want to make sure that we
keep Americans free and that their constitutional freedoms are
protected. None of us would think that we were making the country safer
if we were to try to pass a law that said law enforcement or anybody
else can walk into our homes at any time they want and go through any
files we have, follow us anywhere they wanted just on a whim. We would
be totally opposed to that. But some would say that in the aftermath of
9/11, in some of the aspects of the PATRIOT Act, we did just that.
Congressman Armey, who was the Republican leader, the majority leader
of the House at the time--a very conservative Republican--he and I
joined together after consultation to put into the PATRIOT Act sunset
provisions which would require us to have the debate we are having
right now.
We talk about consultation. The fact is that there have been hours
and days and weeks and months of consultation between the House and the
Senate on the USA FREEDOM Act. We had a bill before us last year that
was filibustered. It still got 58 votes. That was done in consultation
with the House. The majority leader of the House has already said--the
Republican leader--he has warned the Senate not to move ahead with
planned changes to the House bill because it could bring real
challenges in getting the USA FREEDOM Act passed through the House
again.
The fact is that we have had so much consultation. Senator Lee, I,
Republicans and Democrats have met continuously for months--even a
year--with House Republicans and House Democrats to get the bill that
is before us now. That is probably why it passed by such a lopsided
margin in the House of Representatives.
My distinguished friend from Texas says these are minor changes.
Well, actually, they are not. One would weaken the FISA Court amicus
authority. We know that for years the FISA Court secretly
misinterpreted section 215. As a result, after the program leak, that
is the only time the FISA Court finally heard the government's
argument. Before that, they only heard the government. Once a legal
reason justifying this program became public, challenges were brought,
and the Second Circuit last month ruled unanimously that the program
was unlawful.
Having amicus in there is not having a defense attorney in a grand
jury room at all. Amicus on questions of law can be invited by the
court to step in. This could be a relatively rare case, completely in
the discretion of the court. It is hard to talk about weakening that
further, especially when we are talking about a secret court.
I oppose the amendment to extend the current bulk collection program
in place for a full year. We have a 180-day transition period. And the
Director of
[[Page S3430]]
the NSA said: ``We are aware of no technical or security reason why
this cannot be tested and brought online within the 180-day period.'' I
think the NSA Director is as knowledgeable about this subject as
anybody in this Chamber, and he says we can go forward with it.
I think all of these amendments that are talked about would simply
delay passing an excellent piece of legislation, one that has been
worked on by Republicans and Democrats for months and even years. Let's
pass it today.
We hear about stopping terrorism attacks. We all want to do that. But
I remember some of the statements made by a former NSA Director that
this had stopped 54 terrorist attacks. When he was pressed on that
claim, it came out that the bulk collection program was only important
after the fact in one case--and that was not a terrorist attack.
We also know that 9/11 could have been avoided. The evidence was
there. The information was there. But the dots had not been connected.
Everybody was frantically taking information they already had--
recordings they already had after 9/11--and saying: We ought to get
around to translating what is in these things. We know that in
Minnesota, the FBI warned that people were taking flight lessons and
there was no good reason. That warning was ignored. They basically were
told: We know better.
I remember the day or so after the attack, at FBI Headquarters,
people were calling in with information from different field offices.
Somebody would write it down and would hand it to somebody else who
would rewrite it and hand it to somebody else who would put it in a
file. They would charter planes to bring photographs around to
different places so our offices could see them. And I said: Well, why
don't we just email the photographs? They would say: Well, we don't
have the ability to do that. I said: Well, my 11-year-old neighbor
could do it for you if that would help.
The fact of the matter is we had the information prior to our own new
laws, and it didn't make us safer--any more safer than when we voted
for $2 to $3 trillion to go into Iraq because, as the Vice President
and others were saying, they were about to attack us with nuclear
weapons, and they were implying they were involved in 9/11.
Mr. WYDEN. Will the distinguished ranking member yield?
Mr. LEAHY. Yes.
Mr. WYDEN. I think the ranking member has made a number of very
important points here.
The fact of the matter is that we are all here because the majority
leader wasn't able to defeat the surveillance reform. So instead, he
has chosen to introduce amendments designed to water it down. I am
disappointed by this. I will oppose all of these amendments, and I want
to have a colloquy briefly with the ranking minority member.
The ranking minority member and our colleague from Connecticut,
Senator Blumenthal, have done very good reform work with respect to the
FISA Court. In particular, what the distinguished Senator from Vermont
has done, with the help of the Senator from Connecticut, is to bring
some very important sunshine and transparency to the court. As my two
colleagues have pointed out on the Judiciary Committee, we really meet
on the major questions--not all of them, as the Senator from Vermont
has just said--but what is really needed is to make sure that both
sides get a chance to be heard, not just the government side.
So what troubles me--and I am interested in the reaction of my
colleague from Vermont, and I want to praise him and my colleague from
Connecticut--is that it seems to me that what the Senate majority
leader wants to do is basically to take us back to the days of secret
law.
What is important, as we get into this, and particularly with this
amendment, is that there is a difference between secret operations and
secret law. Operations always have to be kept secret.
I see my friend Chairman Burr here. We serve on the Intelligence
Committee together. The two of us feel so strongly about making sure
secret operations are kept secret because otherwise Americans are going
to die. We can't have secret operations splayed all hither and yon in
the public square.
But the law always ought to be public. As Senator Leahy has pointed
out for some time--and I warned about it here on the floor--what we
would see is, if you live in Connecticut or Vermont, the PATRIOT Act
talked about collecting information relevant to investigation. Nobody
thought that meant millions and millions of records on law-abiding
people. That decision was made in secret. It was made without the
reforms advocated by the Senator from Connecticut and the Senator from
Vermont.
So I would be interested in my colleague from Vermont's reaction to
the majority leader's amendment to scale back your very constructive
reforms on the FISA Court. And my sense is that what the majority
leader's approach would do would take us back to the days of secret
law. I think that is a mistake, and I would be curious about the
reaction of my colleague from Vermont on this.
Mr. LEAHY. I would say to my friend from Oregon that the American
people want to know how the laws are being interpreted. They want to
know what the courts are doing.
As to secret operations, of course, you have had briefings on those.
I have had briefings on those. I have been in places I will not name
here. They are places overseas where I was there in the operations
center as operations were taking place and being briefed on what they
did, where they got the information, and what they were going to do
next. Of course, none of that you want to be reading in the press or
seeing in real time.
But I also know that when we are dealing with Americans and with
their lives and with their sense of privacy, we have to protect them.
The USA FREEDOM Act makes very simple changes to the FISA court. The
bill provides the FISA Court with the authority to designate
individuals who have security clearances to be able to serve as an
amicus or a friend of the court. It is triggered in only relatively
rare cases involving a novel or significant issue of law, and the
decision of appointment is left entirely up to the court. That is about
as narrowly drawn as you can get. But I think we have to have this
ability to know what the court is doing because we have known for years
that the FISA Court secretly misinterpreted Section 215 to allow for
the dragnet collection of Americans' phone records.
I would be happy to yield to the Senator from Connecticut, who has
worked so hard on this and is a former attorney general of his own
State.
My own experience in getting search warrants for phone records or
anything else as a prosecutor--and I realize it is not of the
complexity of what we have today, but I realize we had to follow the
law--is that, ultimately, that protects us more than anything else. I
do not want this administration or any other administration to have the
ability just to go anywhere they want. I am not encouraged by those who
say this is so carefully maintained. We were given information earlier
that just a small number of people can have access to those records. I
guess it is one less since Edward Snowden walked out the door with all
of it.
I will yield to the Senator from Connecticut if he would like to
speak on this subject.
The Senator from Oregon has been such a strong and passionate leader
on this, and I know from what I hear from the people of my State and
when I am down in his State that people want us to be safe, but they
also want their privacy protected.
The PRESIDING OFFICER (Mr. Flake). The Senator from Connecticut.
Mr. BLUMENTHAL. I thank the Chair.
Mr. President, I am very grateful for the opportunity to follow my
distinguished colleague from Vermont and to emphasize some of the
points that he has just made. But first let me thank Senator Wyden for
his leadership and his courage on this issue of foreign intelligence
surveillance reform. He has helped to lead this effort, long before I
was in the Senate, in favor of more transparency and accountability.
Those are among the overarching objectives here.
My colleague from Vermont, who shares with me a background as a
prosecutor, rightly makes a point that warrants and other means of
surveillance when prosecutors seek them are sought
[[Page S3431]]
ultimately from judges. I want to speak to some of the myths and
misconceptions here that endanger this key reform.
Our colleague from Texas, whom I greatly respect, has argued that the
FISA Court is like a grand jury. In fact, he has said that an amicus
should not be appointed, in effect, to intervene with a body that is
like a grand jury. Well, the Foreign Intelligence Surveillance Court is
not a grand jury, as my colleague from Oregon has said very well. The
FISA Court makes law. It interprets the law in ways that are binding as
legal precedents. Far from being like a grand jury, as a truly
investigative tool of the court, the Foreign Intelligence Surveillance
Court is a court. In fact, it is composed of article III judges who do
as they do on their own district courts or appellate courts; that is,
they interpret law and thereby, in effect, make law.
To keep that law secret is a disservice to the American people and to
our legal system. To have only one side represented skews and, in
effect, impedes the operations of that court because we know that
judges make better decisions when they hear both sides and rights are
better protected. Even so, the FISA Court needs to hear from that
amicus panel only when it chooses to do so, ultimately.
It has the discretion under the statute, as it exists now, to decide
to appoint an amicus in any particular matter. It is required to
appoint an amicus in novel or significant cases unless--and the word
``unless'' is in the statute--it issues a finding that the appointment
is not appropriate. It can make that finding whenever it wishes to do
so. So the discretion is for the FISA Court in whether to hear from an
amicus, even under the bill that the USA FREEDOM Act is now. It can
permit the amicus to address privacy, technology or any other area
relevant to the matter before the court--not just constitutional
rights. And that leads to the second misinterpretation, if I may say
so, in the remarks made by my colleague from Texas.
The bill does not direct an amicus to oppose intelligence activity or
to oppose the government's view or position. In fact, it is to
enlighten the court. In some instances it may oppose the government,
but it is as part of that process of constructively arriving at the
correct legal interpretation--not as a kind of knee-jerk reaction to
oppose the government.
Again, I stress, a novel or significant issue in the discretion of
the court may be addressed by the amicus. What the amendment does is to
deprive the amicus or expert panel of the access it needs to facts and
law to be the best that it can be in interpreting, arguing, and
protecting rights. It, in effect, bars access to past precedents of the
court, to briefings from intelligence experts, to facts that may be
known to the Department of Justice or intelligence agencies. That
hampering and hobbling of the amicus in no way serves the cause of
justice. It in no way serves the cause of intelligent intelligence
activities--in fact, it undermines that activity.
It undermines trust and confidence in the court. This court has
operated in secret. It has heard arguments in secret. It has issued
opinions in secret. It is the kind of court our Founders would have
found an anathema to their vision of democracy and freedom. We may need
such a court now to authorize surveillance activities that must be kept
secret, but we need to strike a balance that protects very precious
constitutional rights and liberties.
After all, what does our surveillance and intelligence system protect
if not these fundamental values and rights of privacy and liberties
that have lasted and served us well because we respect them?
More than a physical structure that we seek to protect through this
system, it is those values and rights that are fundamentally paramount
and important. So this FISA Court reform goes to the core of the
changes--constructive changes that we seek to make. I hope my
colleagues will defeat amendment 1451, along with all of the other
amendments, because the practical effect of adopting amendments is it
further delays implementation of the USA FREEDOM Act at a time when our
country may be at risk from the expiration of the PATRIOT Act. We
cannot afford for this country----
Mr. WYDEN. Will my colleague yield for a question on that point?
Mr. BLUMENTHAL. I will be happy to yield.
Mr. WYDEN. Because I think, again, my colleague from Connecticut has
spoken to what the stakes are here. For the last decade, intelligence
officials have been relying on secret interpretations of their
authorities that have been very different from the plain reading of
public law. The public has seen the consequences of that, and they are
angry because the American people know we can have policies that
promote both security and liberty.
I would just like to ask a question of my colleague with the respect
to what the implications would be of hollowing out the good work you
and Senator Leahy have done with respect to having more transparency
and both sides making a case on key questions with respect to the FISA
Court. I would like to note that the majority leader's second amendment
delays implementation of other important reforms that you all have
dealt with.
For example, one question I was asked about at a townhall meeting
just this past weekend in Tillamook, OR, where I was, is people were
concerned about what would we do to protect our Nation when there was
an emergency. You all, in your good work, have, in effect, said you
would strengthen the language to make sure that when there was an
emergency--government officials already can issue an emergency
authorization to get the business records and you would then seek court
approval, and you all strengthen that.
All of you on the Judiciary Committee said: We are going to provide
another measure of security for the American people; in other words, we
are going to protect their liberty and we are going to strengthen their
security. It looks to me like the combination of the majority leader's
two amendments scaling back the reforms, the transparency reforms in
the FISA Court, and delaying the strengthening of emergency authorities
that can protect the American people without jeopardizing their liberty
would really roll back the kind of reforms the American people want.
I would be interested in my colleague's reaction to that.
Mr. BLUMENTHAL. I am happy for that very pertinent and important
question from my colleague from Oregon. In fact, the majority leader's
amendments would not only scale back and roll back the protections for
the American people in the event of exigent or urgent situations, they
would also undermine the confidence and trust of the American people in
this system to protect the homeland.
Delaying these kinds of reforms undermines the goal of protecting our
national security as well as preserving our fundamental constitutional
rights. Delay is an enemy here. Uncertainty is an adversary. We owe it
to the American people not only to restore their trust and confidence
and sustain the faith of the American people in the intelligence
agencies but also to make it more transparent, where it can be made so
without compromising security and increasing accountability.
That is what the FISA Court reforms do. That is why the Director of
National Intelligence as well as the Attorney General, the Privacy and
Civil Liberties Oversight Board, the President's Review Group, at least
two former FISA Court judges, civil rights advocates, and
representatives of many of the most informed and able in our
intelligence community all support these reforms.
The Director of National Intelligence and the Attorney General said
in 2014, ``The appointment of an amicus in selected cases as
appropriate need not interfere with the important aspects of the FISA
process, including the process of ex parte consultation between the
court and the government.''
Ex parte communication, in effect, secret conversation or
consultation, can continue to go forward under this bill. The amendment
would not alter that fact. The amendment simply makes the amicus less
effective by depriving that amicus of access to facts and law that are
necessary to do its job. So, in my view, these amendments fundamentally
undermine the purpose of reforms that a vast bipartisan majority of
this body has already approved today. It is an increasingly large
margin that has voted for these
[[Page S3432]]
reforms, recognizing what I hear from Connecticut, what my colleagues
hear in their States; that people want to believe the Foreign
Intelligence Surveillance Court is, in fact, operating as a court,
hearing both sides, keeping secrets but at the same time increasing
public access to facts and laws that are important to them without
compromising our national security.
I hope my colleagues will vote to reject these amendments. As the
Senator from Oregon has said, adopting them will simply serve to delay
reforms that are necessary.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. BURR. Mr. President, there are always two sides of every picture,
two sides of every story. I have tremendous affection for Ranking
Member Leahy. We are friends. We look at this issue differently. I have
deep respect for Senator Blumenthal, Senator Wyden.
The fact is I look at history a little bit differently and I look at
the future a little bit differently because I think what the American
people want to believe is that America is doing everything possible to
keep them safe. I think, at the end of the day, that is the single most
important issue: Are we doing everything we can to keep America safe?
Now, Senator Wyden opposes section 215. He talked about changes. He
is opposed to section 215. He is a member of the committee. I know
exactly where he stands, and I respect it. The fact is that 215 is a
very effective program. My colleagues are right. It was not a public
program until Eric Snowden, a traitor to the United States, published a
lot of information about what the intelligence community does. This was
one small piece. Eric Snowden put the lives of Americans and foreigners
at risk in what he released.
You cannot put the genie back in the bottle, but you also cannot hide
from the fact that this program enabled us to thwart terrorist attacks
here and abroad. I quoted the four of them yesterday. This program
itself was what we were able to use post the Boston Marathon bombing to
figure out whether the Tsarnaev brothers had an international
connection that directed that horrific event at that marathon.
Yes, the FISA Court operates in secret. Why? It is the same reason
the Senate sometimes clears the Galleries, shuts the doors, cuts off
the TV, and as an institution only cleared people here--classified and
top secret information--can make decisions. Therein describes the FISA
Court. They always deal with classified and top secret documents. They
are called on a minute's notice. No other court in the world responds
like that. There is a FISA judge on the bench 24/7, 365 days a year. It
rotates. These are the best of the best of the judicial system around
the country, picked by the Chief Justice of the Supreme Court.
Could it be open? Sure. But we would then expose either classified
and top secret documents or we could not use the documents to make the
case to the FISA Court that we have a suspected individual of terrorism
and we need the authority to see who that person is. Well, we have
heard a lot about the FISA Court. A lot of it is true.
The people who serve on the bench are heroes because they take the
toughest cases America is presented with, and they rule on them in the
most judicial way they possibly can, demanding, over 25 percent of the
time, that an application be resubmitted after changes because they did
not think it had met the threshold.
Much has been focused on the changes to the amicus language or the
``friend of the court.'' This is not a normal court. When the choice is
to go to the FISA Court, it is because we are concerned. We are
concerned about an imminent threat.
Let me explain, once again, for my colleagues and for the American
people what the section 215 program is. It is a program where at the
NSA we collect raw telephone numbers from telephone companies--numbers,
not names.
We have a number that does not have a person's name with it. They are
deidentified. We collect a number, the date the call was made, and the
duration of the call. For us to trigger any search or we call it query
of that database, we have to have a foreign telephone number that we
know is a telephone number used by a terrorist.
Those are all the components of the section 215 program. That is it.
We can have a database, but without a foreign terrorist telephone
number, we cannot search the database. If we have a foreign terrorist
telephone number and no database, which is where we are moving to--I
concede this legislation is going to move, and we are going to
transition over to hundreds of telephone companies.
Now, rather than have a number of people controlled and supervised
within the NSA to carry out these queries, we are going to have
telephone company employees carry out a query with a known foreign
terrorist's telephone number against all of the numbers in their
database. Again, hopefully, they will not tie a person's name to it. We
do not even get a person's name at the NSA.
The only people who should be worried are Americans who have actually
had a communication with a known terrorist abroad. Now, I think when
the American people hear me talk about this, up to this point they are
saying: That is a good thing. We want to know if somebody here has
talked to a terrorist because we want to be kept safe.
Well, not only are we shifting the database out of the NSA over to
the telephone companies, which means our response time is going to be
delayed--let me remind everybody that whether we search the meta
database at NSA or whether we search the database at the telephone
company, we first have to go to the FISA Court and get a court order
that says: You have the authority to do this based upon what you have
presented the court.
Now we have to go to the telephone companies, and in a timeframe that
is conducive to them, they are going to search their database for a
known terrorist's cell phone number, and now we are relying on hundreds
of companies to search their database in a timely fashion and get back
to us because we are trying to be in front of a threat versus behind a
threat. In front of a threat, it is called intelligence; behind a
threat, it is called an investigation.
When we thwarted the New York City subway bombing, we were in front
of the threat. That was intelligence. When we reacted to the Boston
Marathon, that was an investigation led by the FBI, not the NSA.
So when you inject this new requirement for a friend of the court--
and I would disagree with my colleagues. This is not a voluntary thing
for the FISA Court. It is something that is available to the FISA Court
today if they choose to have somebody come in to counsel them on
something. This is mandatory. In the legislation, it says ``shall.''
The court shall set up a panel. The court shall choose a friend of the
court. A friend of the court is not there to facilitate a timely
processing of information.
Let me remind everybody that we are dealing with the safety of the
American people. They always stress this at the end of the
conversation: We want the confidence and trust to be rebuilt that we
are protecting our homeland. If you are moving a database, you are
making it slower. Now you are setting up a mechanism inside to slow it
down even more.
What we are doing is shifting from intelligence gathering to
investigations. Nobody knows how long it is going to take from the time
we present the FISA Court with a foreign terrorist's telephone number
before we actually complete a search process within this new database.
I happen to be the one behind a 12-month transition versus a 6-month
transition, and it was all stimulated off of exactly the same person
whom Senator Blumenthal or Senator Wyden quoted. They said the Director
of the NSA said: We think we can do this in 6 months.
Well, I am telling you, if I am the general public in America and I
am concerned about my safety and the people who are supposed to be
protecting me say ``I think I can do this in 6 months''--I would like
somebody to say ``I am absolutely 100 percent sure I can do it in 6
months.'' But they think they can do it in 6 months. There is the
reason for a year. There is the reason for a longer transition period.
If privacy were really the concern--and everybody has come down and
said: I want to protect the privacy of the American people. Let me
point out a couple of things.
[[Page S3433]]
No. 1, we didn't collect anybody's name in this program. It is hard
to intrude on somebody's privacy when you didn't collect their name. We
collected the number, the date of the call, and the duration of the
call. That is it. Anything else that turns into an investigation is the
Federal Bureau of Investigation going to a court and saying: We have to
have more information because we know the President of the Senate is a
potential threat to us. And then more information can be found out,
such as his identity and anything else that might be part of the
investigation. But from the standpoint of the NSA, those are the only
things we have--a telephone number, a date, and the duration of the
call.
If privacy is the concern, I don't think we have breached it. As a
matter of fact, since this program has been in existence, there has not
been one case of a breach of anybody's privacy--not one.
If they were truly concerned about privacy, they would be on the
floor today with a bill abolishing the CFPB, which is a government
agency, a government entity that collects every financial transaction
of the American people by name, by date, by amount, by transaction. But
they are not down here doing that. Why? Because they don't like the
fact that the FISA Court operates in secret. They don't think there
should be classified or top-secret documents. They believe everything
should be transparent.
Well, let me say to my colleagues, my friends, and to the American
people that we have done more over the last month to destroy the
capacity of this program because of the debate we have had. There is
not a terrorist in the world now who doesn't understand that using a
cell phone or a land line is probably a pretty bad thing. It probably
puts a target on their backs. We have done a great job of chasing
people to alternative methods of communication, and I would suggest to
you that is not making America any safer. If anything, maybe we should
have had this debate in secret simply so we wouldn't give them a
roadmap as to what we do.
Therein lies the reason that there are some things on which I think
there is a determination made by the executive branch and by the
legislative branch and I think in many cases at the dining room tables
around America where Americans say: You know, you don't need to share
everything with me. I am tired of hearing things on the nightly news
that I think shouldn't be discussed.
This probably happens to be one of them because it doesn't make us
more safe, it makes us less safe.
I will end the same way Senator Blumenthal did. People want to
believe--question mark. I think people want to believe we are doing
everything we possibly can to strengthen our national security, to
eliminate the threat of terrorism here and abroad. My fear, quite
frankly, is that this bill doesn't accomplish that.
Again, I have deep affection for those whose names are on the bill
and for what they believe is the intent. But I think that at the end of
the day the only responsible thing to do right now is to accept three
amendments--one, a substitute, and two, a first-degree and a second-
degree amendment.
Let me say briefly that the substitute incorporates two changes. One
change is that the telephone companies would be required to notify 6
months in advance of any change in their retention program--in other
words, how long they hold the data. I have received calls from both big
telecom companies today, and they have both said: We have no problem
with that.
The second one would have the Director of National Intelligence
certify at the end of the transition period that technologically we can
make the transition. I don't find anybody who has really objected to
that.
Then there is an amendment that extends the transition period from 6
months to 12 months. There have been people who object to that. I would
only tell you we have a difference of opinion. They are willing to
trust the NSA on their ability to make the transition in 6 months. I
think that is ironic because the reason we are here having this debate
is because they have made us believe we can't trust NSA. Yet, they are
willing to trust the NSA relative to a transition time that is
sufficient to accomplish the transition.
Let's err on the side of caution. Let's do it at 12 months. If they
can do it sooner, then let them petition us, Congress can pass it, and
we will turn to it sooner. But let's not get to 6 months and be
challenged with not being ready to make that transition.
The last one is a change to amicus language. Clearly, that is the
biggest difference we have. I would say to my colleagues that you
either vote for the amendment or you vote against it. If you vote for
it, you will delay the time it will take for us to connect the dots
between a foreign terrorist's telephone number and a domestic telephone
number they might have talked to. If that doesn't bother Members and it
doesn't bother the public, I am all for giving the American people what
they want. But I think most American citizens sit at home and say: You
know, the faster you do this, the safer I am. I have a responsibility
first and foremost to the protection of the American people. It is in
our oath.
I also share something with the Presiding Officer and my colleagues
who are here--to protect the rights and liberties of the American
people. And as the chairman of the Intelligence Committee, I don't
think we have in any way infringed on that.
I am now in year 21. I have come a lot closer to the line than I ever
dreamed when I came to Congress in 1995. But I also never envisioned an
event as horrific as 9/11. I never envisioned an enemy as brutal as
ISIL or Al Qaeda or the Houthis. I could go on and on.
What has changed since 9/11? On 9/11, we had one terrorist
organization that had America in its crosshairs. Today, we have tens to
twenties of organizations that are offshoots of terrorist organizations
that would like to commit something right here in the United States.
The threat hasn't become less; it has become more. We are on the floor
today talking about taking away some of the tools that have been
effective in helping us thwart attacks. It is the wrong debate to have,
but we are here.
I would only ask my colleagues to show some reason. Extend by 6
months the transition period. Make sure it doesn't take longer to
search these databases. Make sure we are ready for the telephone
companies to carry out the searches because there is one certainty on
which I think I would find agreement from all of my colleagues here:
The terrorists aren't going away. America is still their target. No
matter what we say on this floor, we are still in the crosshairs of
their terrorist acts.
Only by providing the intelligence community and the law enforcement
community the tools to carry out their job can they actually fulfill
their obligation of making sure America is safe well into the future.
I yield the floor.
The PRESIDING OFFICER (Mr. Cruz). The Senator from South Dakota.
Mr. THUNE. Mr. President, I hope our colleagues in the Senate and the
American people are listening to this discussion because there isn't
anything that is more important than defending our country. The debate
we are having in the Senate today is really about the tools our
intelligence community uses to prevent terrorist attacks.
As we look at and discuss the legislation in front of us, I think it
is very important that we not forget we are living in dangerous times.
This is the most dangerous time, literally, since 9/11 in terms of the
terrorist activity that is out there. As the Senator from North
Carolina pointed out, we have a big bull's-eye. The United States and
people in this country, the things we believe in--the terrorists would
love nothing more than to be able to take out and destroy, through some
terrorist act, Americans and American interests. So I think it is very
critical.
The Senator from North Carolina did a great job. I know the Senator
from Indiana is going to speak here on the subject in a few minutes.
But I hope everyone listens carefully because we are on the cusp of
doing something that does weaken the very tools that have been used,
the very capabilities that have been used to prevent those terrorist
attacks.
The ironic thing about it, as you frame this up, you look at the
threats that are out there, the dangerous times in which we live, and
the success of these programs and how effective they have been in the
past at preventing a terrorist attack, and what is being
[[Page S3434]]
talked about are potential abuses, hypothetical examples of how these
programs could be abused, but they haven't been. The fact is, they
haven't been.
We have a long period of time now in which to examine the
effectiveness of these tools relative to the arguments that are being
made about their abuse. They just don't exist. There isn't a documented
case, in the time these tools have been in existence, of anybody's
privacy being breached.
So it is very important that we look at these issues in light of what
we are up against and what our No. 1 responsibility is; that is,
defending Americans and Americans' interests. And this discussion is
critical to that.
The Economy
Mr. President, I wish to speak on another subject this morning, and
that has to do with the headline of the New York Times from Friday
morning of last week, which I thought was pretty grim, and that is
``U.S. Economy Contracted 0.7% in First Quarter.'' Let me repeat that.
Not only did our economy fail to grow in the first quarter of 2015, it
actually shrank.
That is pretty discouraging news for millions of Americans still
struggling in the Obama economy, and the Obama administration didn't
offer them any consolation. Too often the administration has met
stories of economic woe with excuses: uncertainty in the eurozone, not
enough foreign demand, the Japanese tsunami, too much snow, too many
congressional Republicans, and of course the Obama administration's
favorite excuse, the Bush administration.
This time, among other things, the administration is blaming the
measurements themselves. The administration claims the Bureau of
Economic Analysis is not accurately measuring economic growth from
quarter to quarter. Now, of course, the Department of Commerce should
always be looking for ways to modernize our measurements and adjust for
seasonal changes, but no arithmetical sleight of hand can disguise the
fact that our underlying economy is so weak that isolated events can
shut down economic growth altogether and actually push our economy into
the red.
Economic growth has averaged an abysmal 2.2 percent under this
administration since the end of the recession. That is one of the
weakest economic recoveries in the past 70 years. If the Obama recovery
had met the average economic growth experienced in all post-World War
II recoveries, our economy would be $1.9 trillion larger than it is
today.
If you look at the President's record, it is easy to see why our
economy is still sputtering along: a failed $1 trillion stimulus, $1.6
trillion in new taxes, the President's health care law, which raised
premiums for families and increased costs for small businesses, 2,222
new regulations costing more than $653 billion in new compliance costs,
a Federal debt that has doubled on the President's watch, a financial
reform bill that has overreached and is stifling community banks and
lending across the country, and a runaway EPA that wants to increase
electricity rates on families who are already struggling with stagnant
wages and now--now--wants to regulate ditches and ponds in farm fields
across the country.
All of this has led some economists to wonder if 2 percent growth is
the new normal. If it is, it is very bad news for American families who
will face a future that is less prosperous with less economic
opportunity and mobility.
During the entire postwar period, from 1947 to 2013, our Nation
averaged 3.3 percent growth. At that pace, the standard of living in
America almost doubles every 30 years. Incomes rise, financial security
increases, and more people are able to afford homes, take vacations,
and save for higher education. At the pace of growth we have seen since
2007, on the other hand, it will take closer to 99 years for the
standard of living to double.
Unfortunately, our recent weak economic growth shows every sign of
continuing. The Congressional Budget Office projects our economy will
grow at an average pace of 2.5 percent through 2018 and just 2.2
percent from 2020 through 2025.
That is not good news for American families. For generations,
individuals have clung to the promise America has always held out: If
you work hard, you could build a better life for yourself and an even
better one for your children. But after years of economic stagnation,
that promise is now in jeopardy.
A survey released last September reported that nearly half of
Americans over 18 believe their children will be worse off financially
than they are. A similar percentage of Americans no longer believe if
you work hard you will get ahead.
Their disillusionment is not surprising. The weak economic growth we
have experienced over the past several years has left families
struggling to make ends meet. Americans are struggling to make health
care costs and to make mortgage payments. They are no longer sure they
can put their children through college and retire comfortably. Some
have even lost their homes. Good-paying jobs are few and far between.
The U.S. Census Bureau reports that for the time since the government
began tracking the number, more businesses are closing each year than
are being opened. Think about that. More businesses are closing. There
are more business deaths than there are business births in this country
today.
Millions of Americans are unemployed, and millions more are being
forced to work part time because they can't find full-time work. Forty
percent of unemployed Americans have become so disillusioned with the
lack of opportunity, they have given up entirely looking for work--40
percent. That is a staggering number. If the unemployment rate were
changed to reflect the number of unemployed who have given up looking
for work, our current unemployment rate would be well over 9 percent.
The good news is that things don't have to stay that way. We can
enact progrowth policies that will return our economy to a more
prosperous path in the 21st century. According to former CBO Director
Douglas Holtz-Eakin, the differences between 2.5 percent growth and 3.5
percent growth would have a major impact on the quality of life for
low- and middle-income families.
If our economy grows at a rate that is just 1 percentage point faster
than what is projected, we will have 2\1/2\ million more jobs and
average incomes will be $9,000 higher. Average incomes would be $9,000
higher if we grow just 1 percentage point faster than what is
projected. For a lot of Americans, that is the difference between
owning your home and renting one. It is the difference between being
able to send your kids to college or forcing them to go deeply into
debt to pay for their education. It is the difference between a secure
retirement and being forced to work well into old age.
Additionally, the CBO estimates that for every additional one-tenth
percent increase in economic growth, it reduces our deficits by $300
billion over the next 10 years. That means an additional percentage
point in economic growth will reduce our deficits by $3 trillion over
the next 10 years, and that in turn--reducing deficits--would further
enhance economic growth.
Senate Republicans have laid out a number of policies to help grow
the economy and open up opportunities for low- and middle-income
Americans. We proposed energy policies that will expand domestic energy
development which will help drive down energy prices. We are advancing
trade policies that will help create more opportunities for American
workers here at home by increasing the market for U.S. goods and
services abroad. We have proposed tax reform that will simplify our
outdated Tax Code and make our businesses more competitive, which will
open up new jobs and opportunities for American workers. We have laid
out entitlement reforms that will keep our promises to our seniors
while protecting our economy by reducing our long-term deficits. We are
pushing for regulatory reforms that will rein in the out-of-control
government bureaucracies that are stifling economic growth.
Years and years of government overspending, burdensome taxation,
massive government programs--many of which don't work--and excessive
regulation have taken their toll on our economy, but we can still undo
that damage. For generations, America has held out the promise of hope
and opportunity, and Republicans are committed to ensuring it does so
again. We invite
[[Page S3435]]
our colleagues to join us because we can have a better, brighter, and
more prosperous future for future generations of Americans by changing
directions, changing the policies, doing away with the regulations, the
overreaching government that has made it so difficult for so many
Americans to get ahead.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. COATS. Mr. President, we are fortunately moving forward on this
issue of extreme importance to the security of the American people.
These are necessary procedures we should take to do everything we can
to ensure our safety, to publicly discuss and debate the issue of
terrorist threat and the measures the people's government is taking to
defend our country and to defend each individual American from being a
victim of terrorism.
As Senator Burr, chairman of the Intelligence Committee, just
related, the threat to our certain security and to our safety has never
been stronger, never been more threatening, with the proliferation of
terrorist organizations, the unfortunate proliferation of the
inspiration that is being provided through social media to any number
of American citizens--and those who may not be citizens but are
residing in this country--to take up arms or to create a bomb or bring
harm to Americans in the name of support for jihad, in the name of
ISIS, in the name of Al Qaeda, in the name of support for the extreme
fundamentalist activities of terrorists that are prevailing not only
through the Middle East but affecting the world in various places.
We know through intelligence gathering and through public statements,
the United States has been put in the crosshairs. ``Kill Americans, no
matter how you do it, take it up. We will learn today, if we haven't
learned already,'' something that has just come across the wires of
someone who was attempting to do just that, and we just see more and
more references to these types of attacks.
Unfortunately, we are in a period of time when one of the methods we
had to try to detect these threats is no longer in operation. It is not
in operation because the authorization for going forward with this
program, described as section 215 of the PATRIOT Act--the collection of
raw telephone numbers, not anybody's name but raw telephone numbers--
that we could use as a base to determine whether, from a foreign
source, a known terrorist or someone connected to a terrorist
organization is talking to somebody in the United States. That is the
program. Unfortunately, that program is dark. It is shut down. It shut
down at midnight Sunday.
The program was shut down because we could not achieve support for
even a minimum extension of time for which to better understand the
program, to better debate and discuss the program, to make adjustments
necessary to ensure that Americans' privacy was not being breached.
Several requests were made and, unfortunately, one Member, exercised
his right to say no to a unanimous consent request, and we were in a
position where we had to ask for consent driven by our procedural
process we have to go through to achieve a vote. But, that vote was
rejected time after time after time. So on the basis of one Member's
objection, we have what I believe, what many believe, and what those
who better understand this now that we have been able to disclose what
it is believe is a necessary tool that ought to be in place.
This program ought to be in place for the very purpose of doing
everything we can to prevent another 9/11, to prevent something much
worse than 9/11, which would involve a 9/11 type of action coupled and
married with a weapon of mass destruction. Where an attack in New York
would not result in 3,000 in casualties--it would potentially result in
3 million casualties or even more or something concocted by a small
group of people who would shoot up a shopping mall or rush into an
elementary school or just simply take down someone on the subway system
or an individual attack by someone with a knife or an ax or a gun.
One of the essential programs we have had that has been successful
has been under attack in terms of breaching the privacy of American
citizens. I think it has been made clear in the last few days that
there has been no abuse of this program and that no one's privacy has
been breached. The only allegation that holds true is that it has the
potential to breach someone's privacy. Over the years, there has never
been documented abuse. No one's privacy has been breached. To shut down
a program with that kind of record on the basis that something could
happen, that government could use this, I know resonates with a number
of people in the United States. I really don't blame them.
This current administration's policies have created great distrust
among the American people as to their leadership, as to their
operations, as to their policies.
When we look at what has taken place with the IRS, definitely
breaching people's privacy for political purposes, when we look at
Benghazi and the coverup that has taken place in Benghazi, with the
administration refusing to stand up and take responsibility for not
responding adequately and changing the narrative and rewriting the
intelligence. And when we look at Fast and Furious and the agency
responsible there. I fully understand not just the frustration but the
anger that American people have and the distrust they have.
One of the most difficult issues those of us in the Intelligence
Committee have had to deal with is that when there are descriptions of
policies that are implemented in terms of providing for an intelligence
gathering and necessary response to prevent terrorist attacks, that
information is classified. So when we see the program being
misrepresented and described as something that it isn't, we don't have
the ability to respond. We can't go to the press without breaching our
oath to secrecy. We do not and cannot release classified material.
So while we now are in a position of having to unclassify this
material, we have to understand that everything we say is not only
listened to by the American people in an attempt to ensure their
privacy is not being breached--and that this is an essential tool to
help prevent terrorist attacks. Terrorist groups know everything that
is being said and done, and they will make behavioral changes. They
will make changes in terms of how they communicate.
So the program is being compromised by the very fact that we have had
to come on the floor and publicly address it and release information as
to what it is to help assure the American people that, in fact, what
has been said about the program is simply false.
I have been on the floor several times raising that issue, using the
quotes of what has been said by Members on this floor--particularly one
Member. That is blatantly false. It is a blatant misrepresentation of
what the program is. Now, I am not questioning their motive. I am not
questioning the individual's decision in terms of whether he is for or
against or wants to support or not support. All I want to do is clarify
so that the public has the facts and they can make their own
determination. We make a valid case that privacy is not breached. If
someone comes to the conclusion that they don't trust what we say,
don't believe what we say or don't agree with what we say, that is
their decision. All I want is for them to have the facts in front of
them so that when they make that decision, it is based on fact and not
based on what has been misrepresented.
That is why I took the actual words stated on this floor relative to
the program--which I believe misrepresented the program--and challenged
them. I challenged them with the factual information. I am not going to
repeat them. That is a matter of record.
We now are at the point, however--because we were not able to achieve
any support for any kind of extension to either clarify what the bill
does and doesn't do or to clarify with the House of Representatives how
we best can coordinate this process and come up with a good solution to
the issue--where, procedurally, we only have two options.
One option is essentially to do nothing. The program does not secure
the votes to be reauthorized, and that program is taken off the books
and is no longer there. In my opinion and in the opinion of many, that
makes us more vulnerable. That gives us less access to be able to stop
a terrorist attack.
[[Page S3436]]
The second option is to support an effort that was passed by the
House of Representatives, the USA FREEDOM Act, which I wish I could say
addressed the issue and doesn't compromise the program. But it severely
goes against what this program attempts to do. It compromises the
program to the point where I am not even sure the program can exist
under the provisions that have been enacted by the House of
Representatives.
Three very experienced and trustworthy individuals who don't have to
salute the Commander in Chief and can give their own unbiased opinions
on this came before our Intelligence Committee and basically said that
with the structure of the USA FREEDOM Act, you might as well not have
the program in it because it will take down the program. There are a
couple of major issues here that these amendments try to address but
don't technically address. I am going to be supporting those
amendments. I think they make a bad piece of legislation a little bit
better. But I have real questions as to whether it addresses the
problems that really render the program inoperable.
The first is retention. There is no mandatory retention among
telephone companies that they keep the information--the phone numbers--
that we need in order to create a haystack of numbers from which we can
identify connections between foreign terrorist organizations and
operatives inside the United States. That is not done by somebody
looking at anybody's records. Before the NSA can even use a phone
number, it needs to have outside approval--legal approval--to query
that.
If the telephone companies don't retain those numbers, we can't go
out and match them up. And there is no mandatory retention of those
numbers. It is simply an amendment now that would basically say they
would have to give us notice that they don't retain them. But there is
no mandatory retention.
I can just see a lot of companies saying--and I have heard from a lot
of companies: We don't want to be responsible for trying to build in
the protections and hire the people who have the background checks and
the security clearances to put a regulatory process in place to make
sure our people don't abuse this or use it for the wrong purpose.
So here we have a program that is accessible only by a very limited
number of people at the National Security Agency, overseen by layers
and layers of lawyers and legal experts and others to make sure it is
not abused in any way. They have been successful because there has not
been one case of an abusiveness process against anybody's personal
liberties. There are six layers of oversight that are in place before
they can even take it to the court and say: We think we have a problem
here. We think there is a suspicion--a reasonable suspicion--that a
phone number may be associated with a terrorist organization.
Then the court looks at that and says: We think you have something
here. But let's check it further before we give you the authority to
turn this over to the FBI so they can then look into this in greater
detail to determine whether this is a live terrorist act.
As Senator Burr said, it works on the negative side, also, and there
are some examples of live situations--as in the Boston bombing and so
forth--that proved the negative. It proved there wasn't a conspiracy.
It proved that just two people were involved in this. There were no
connections. So they didn't have to waste a lot of time trying to query
and pull up a bunch of information about whom they had talked to, and
the police were then allowed to focus their efforts on Boston and what
then took place in Boston and not throw the alarm out to New York
City--the allegation was that they were on the way to New York City--
and shut down New York City, causing panic and causing scare and
alerting police and so forth. They were able to prove the negative of
that. So it works both ways. But without that retention, we are not
going to be able to accomplish that.
So I don't understand how the USA FREEDOM Act is a better way of
protecting privacy and a better way of dealing with the fact that time
is of the essence here. Instead of querying one area, we now have to go
to multiple telephone companies, and there are 1,400 in the country.
Let's say there are 100 major companies or let's say there are 10 major
companies. We have to go to all 10 or to all 100 or more in order to
find out whether in their database that telephone number exists. Time
is of the essence here. If you are detecting a terrorist attempt and
you build in all kinds of steps you have to take in order to get to the
point where you think you really have something here, the act could
have already been undertaken.
So those two issues, I think, are major problems with the FREEDOM
Act.
The third is simply to think that the layers of protection and
judicial oversight, executive oversight, and congressional oversight
that take place to make sure we don't abuse the program through NSA--
every telephone company has to insert that same level of oversight, and
they simply won't be able to do it. It will take months. It takes
months to get background checks and security clearances. Many telephone
companies don't have the capacity to do that. They do not have the
financial ability to do that. The irony is that individuals' privacy is
more at risk by the telephone companies holding the numbers than the
NSA holding the numbers, but, of course, we have not been able to
convince the American people of that partly because the program has
been so distortedly reported. But this as the saving grace to protect
everybody's privacy by turning it over to the phone companies instead
of turning it over to NSA just doesn't add up.
It is going to be very difficult for me and I think for many of my
colleagues to think--while many of us are going to support these very
limited amendments, which we don't even know the House will accept, it
does not resolve the issue and does not solve the problem that we are
dealing with here and, in effect, could render the program inoperable.
I think when Members are making decisions about which option to
choose, it is a devil's choice. Is something better than nothing or is
something really nothing and you end up with nothing and nothing? None
of us wants our country to be put into that position, but that is where
we are. If we are not able to secure passage of these amendments to
improve this and the House rejects it--or we reject it or the House
rejects it, then the program will stay inoperable.
I think the American people will then be picking up their phones and
writing and emailing us and urging us to rethink this program through
now that they know more about it, now that they know that much of what
has been said irresponsibly by Members of this body and others is not
true. Once they learn more about it, I think they will be calling on us
to take a new look, and they will take a new look.
The arguments simply do not hold up because they are not factual. Now
that we have been able to release some of this classified information
and now that people have the ability to understand, if they so choose--
to take another look at this and the proof we have provided relative to
the success of the program and relative to the need for the program.
That is what is before us. There has been a constitutional argument
here regarding the Fourth Amendment, and it is important to note: ``The
right of the people to be secure in the persons, houses, papers, and
effects against unreasonable searches.'' Unreasonable. I think we have
proven this is not an unreasonable search. It does not identify
anybody's name. Only after a court approves and gives the NSA the
authority to go forward, similar to seeking the authority of a judge
for other suspected criminal activity taking place in every
jurisdiction across America, every town, every police department going
to court. We tune in to ``Law & Order'' and ``CSI'' and all these
programs and we see exactly how this works. You cannot go barging into
a house without a warrant. You cannot collect information without a
warrant.
The case being made that there is a violation here of the Fourth
Amendment simply has not held up with legal authorities. Secondly--this
is interesting. This was just pointed out to me. I am not a
constitutional scholar. I took constitutional law in law school
[[Page S3437]]
and probably have forgotten half of it. But I do carry it around. I do
look at it, but I am not a scholar. But I think it is pretty clear and
pretty interesting that article I, section 5, talking about the
legislature, says:
Each House shall keep a Journal of its Proceedings, and
from time to time publish the same--
It is on our desks here. Every day, our Congressional Record, these
are our proceedings--
excepting such Parts as may in their Judgment require
secrecy.
That is why we have an Intelligence Committee. There are some things
that require secrecy. Unfortunately, we have had to unclassify
information to try to let the public know that what they have been told
by their government, elected members of their government, is breaching
their privacy, which is not true. We have a constitutional right as a
body to make a decision and a judgment requiring secrecy. On this
program, we require secrecy because once our adversaries know what we
are doing, they are going to change what they are doing and it will not
be worthwhile anymore.
Also, relative to the statements made by the Senator from
Connecticut, who opposes the amendment on the amicus issue, it is my
understanding that the Administrative Office of the United States
Courts, Director Duff, sent a letter to the House asking for their
concerns about the amicus issue effect on the court be placed in the
bill. That was turned down by the House, unfortunately.
The letter says, ``We respectfully request that, if possible, this
letter be included with your Committee's report to the House on the
bill.''
It was sent to the chairman of the Permanent Select Committee on
Intelligence, United States House of Representatives. It is in regard
to H.R. 2048, the USA FREEDOM Act.
Mr. President, I ask unanimous consent that the letter I am
referencing be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Administrative Office of the
United States Courts
Washington, DC, May 4, 2015.
Hon. Devin Nunes,
Chairman, Permanent Select Committee on Intelligence, House
of Representatives, Washington, DC.
Dear Mr. Chairman: I write regarding H.R. 2048, the ``USA
Freedom Act,'' which was recently ordered reported by the
Judiciary Committee, to provide perspectives on the
legislation, particularly an assessment that the pending
version of the bill could impede the effective operation of
the Foreign Intelligence Surveillance Courts.
In letters to the Committee on January 13, 2014 and May 13,
2014, we commented on various proposed changes to the Foreign
Intelligence Surveillance Act (FISA). Our comments focused on
the operational impact of certain proposed changes on the
Judicial Branch, particularly the Foreign Intelligence
Surveillance Court (``FISC'') and the Foreign Intelligence
Surveillance Court of Review (collectively ``FISA Courts''),
but did not express views on core policy choices that the
political branches are considering regarding intelligence
collection. In keeping with that approach, we offer views on
aspects of H.R. 2048 that bear directly on the work of the
FISA Courts and how that work is presented to the public. We
sincerely appreciate the ongoing efforts of the bipartisan
leadership of all the congressional committees of
jurisdiction to listen to and attempt to accommodate our
perspectives and concerns.
We respectfully request that, if possible, this letter be
included with your Committee's report to the House on the
bill.
Summary of Concerns
We have three main concerns. First, H.R. 2048 proposes a
``panel of experts'' for the FISA Courts which could, in our
assessment, impair the courts' ability to protect civil
liberties by impeding their receipt of complete and accurate
information from the government (in contrast to the helpful
amicus curiae approach contained in the FISA Improvements Act
of 2013 (``FIA''), which was approved in similar form by the
House in 2014). Second, we continue to have concerns with the
prospect of public ``summaries'' of FISA Courts' opinions
when the opinions themselves are not released to the public.
Third, we have a few other specific technical concerns with
H.R. 2048 as drafted.
Nature of the FISA Courts
With the advent of a new Congress and newly proposed
legislation, it seems helpful to restate briefly some key
attributes of the work of the FISA Courts.
The vast majority of the work of the FISC involves
individual applications in which experienced judges apply
well-established law to a set of facts presented by the
government--a process not dissimilar to the ex parte
consideration of ordinary criminal search warrant
applications. Review of entire programs of collection and
applications involving bulk collection are a relatively small
part of the docket, and applications involving novel legal
questions, though obviously important, are rare.
In all matters, the FISA Courts currently depend on--and
will always depend on--prompt and complete candor from the
government in providing the courts with all relevant
information because the government is typically the only
source of such information.
A ``read copy'' practice--similar to the practices employed
in some federal district courts for Title III wiretap
applications--wherein the government provides the FISC with
an advance draft of each planned application, is the major
avenue for court modification of government-sought
surveillance. About a quarter of ``read copies'' are modified
or withdrawn at the instigation of the FISC before the
government presents a final application--in contrast to the
overwhelming majority of formal applications that are
approved by the Court because modifications at the ``read
copy'' stage have addressed the Court's concerns in cases
where final applications are submitted.
The FISC typically operates in an environment where, for
national security reasons and because of statutory
requirements, time is of the essence, and collateral
litigation, including for discovery, would generally be
completely impractical.
At times, the FISA Courts are presented with challenging
issues regarding how existing law applies to novel
technologies. In these instances, the FISA Courts could
benefit from a conveniently available explanation or
evaluation of the technology from an informed non-government
source. Congress could assist in this regard by clarifying
the law to provide mechanisms for this to occur easily (e.g.,
by providing for pre-cleared experts with whom the Court can
share and receive information to the extent it deems
necessary).
The ``Panel of Experts'' Approach of H.R. 2048 Could Impede the FISA
Courts' Work
H.R. 2048 provides for what proponents have referred to as
a ``panel of experts'' and what in the bill is referred to as
a group of at least five individuals who may serve as an
``amicus curiae'' in a particular matter. However, unlike a
true amicus curiae, the FISA Courts would be required to
appoint such an individual to participate in any case
involving a ``novel or significant interpretation of law''
(emphasis added)--unless the court ``issues a finding'' that
appointment is not appropriate. Once appointed, such amici
are required to present to the court, ``as appropriate,''
legal arguments in favor of privacy, information about
technology, or other ``relevant'' information. Designated
amici are required to have access to ``all relevant'' legal
precedent, as well as certain other materials ``the court
determines are relevant.''
Our assessment is that this ``panel of experts'' approach
could impede the FISA Courts' role in protecting the civil
liberties of Americans. We recognize this may not be the
intent of the drafters, but nonetheless it is our concern. As
we have indicated, the full cooperation of rank- and-file
government personnel in promptly conveying to the FISA Courts
complete and candid factual information is critical. A
perception on their part that the FISA process involves a
``panel of experts'' officially charged with opposing the
government's efforts could risk deterring the necessary and
critical cooperation and candor. Specifically, our concern is
that imposing the mandatory ``duties''--contained in
subparagraph (i)(4) of proposed section 401 (in combination
with a quasi-mandatory appointment process)--could create
such a perception within the government that a standing body
exists to oppose intelligence activities.
Simply put, delays and difficulties in receiving full and
accurate information from Executive Branch agencies
(including, but not limited to, cases involving non-
compliance) present greater challenges to the FISA Courts'
role in protecting civil liberties than does the lack of a
non-governmental perspective on novel legal issues or
technological developments. To be sure, we would welcome a
means of facilitating the FISA Courts' obtaining assistance
from non-governmental experts in unusual cases, but it is
critically important that the means chosen to achieve that
end do not impair the timely receipt of complete and accurate
information from the government.
It is on this point especially that we believe the ``panel
of experts'' system in H.R. 2048 may prove counterproductive.
The information that the FISA Courts need to examine probable
cause, evaluate minimization and targeting procedures, and
determine and enforce compliance with court authorizations
and orders is exclusively in the hands of the government--
specifically, in the first instance, intelligence agency
personnel. If disclosure of sensitive or adverse information
to the FISA Courts came to be seen as a prelude to disclosure
to a third party whose mission is to oppose or curtail the
agency's work, then the prompt receipt of complete and
accurate information from the government would likely be
impaired--ultimately to the detriment of the national
security interest in expeditious action and the effective
protection of privacy and civil liberties.
In contrast, a ``true'' amicus curiae approach, as adopted,
for example, in the FIA,
[[Page S3438]]
facilitates appointment of experts outside the government to
serve as amici curiae and render any form of assistance
needed by the court, without any implication that such
experts are expected to oppose the intelligence activities
proposed by the government. For that reason, we do not
believe the FIA approach poses any similar risk to the
courts' obtaining relevant information.
``Summaries'' of Unreleased FISA Court Opinions Could Mislead the
Public
In our May 13, 2014, letter to the Committee on H.R. 3361,
we shared the nature of our concerns regarding the creation
of public ``summaries'' of court opinions that are not
themselves released. The provisions in H.R. 2048 are similar
and so are our concerns. To be clear, the FISA Courts have
never objected to their opinions--whether in full or in
redacted form--being released to the public to the maximum
extent permitted by the Executive's assessment of national
security concerns. Likewise, the FISA Courts have always
facilitated the provision of their full opinions to Congress.
See, e.g., FISC Rule of Procedure 62(c). Thus, we have no
objection to the provisions in H.R. 2048 that call for
maximum public release of court opinions. However, a formal
practice of creating summaries of court opinions without the
underlying opinion being available is unprecedented in
American legal administration. Summaries of court opinions
can be inadvertently incorrect or misleading, and may omit
key considerations that can prove critical for those seeking
to understand the import of the court's full opinion. This is
particularly likely to be a problem in the fact-focused area
of FISA practice, under circumstances where the government
has already decided that it cannot release the underlying
opinion even in redacted form, presumably because the
opinion's legal analysis is inextricably intertwined with
classified facts.
Additional Technical Comments on H.R. 2048
The Judiciary, like the public, did not participate in the
discussions between the Administration and congressional
leaders that led to H.R. 2048 (publicly released on April 28,
2015 and reported by the Judiciary Committee without changes
on April 30). In the few days we have had to review the bill,
we have noted a few technical concerns that we hope can be
addressed prior to finalization of the legislation, should
Congress choose to enact it. These concerns (all in the
amicus curiae subsection) include:
Proposed subparagraph (9) appears inadvertently to omit the
ability of the FISA Courts to train and administer amici
between the time they are designated and the time they are
appointed.
Proposed subparagraph (6) does not make any provision for a
``true amicus'' appointed under subparagraph (2)(B) to
receive necessary information.
We are concerned that a lack of parallel construction in
proposed clause (6)(A)(i) (apparently differentiating between
access to legal precedent as opposed to access to other
materials) could lead to confusion in its application.
We recommend adding additional language to clarify that the
exercise of the duties under proposed subparagraph (4) would
occur in the context of Court rules (for example, deadlines
and service requirements).
We believe that slightly greater clarity could be provided
regarding the nature of the obligations referred to in
proposed subparagraph (10).
These concerns would generally be avoided or addressed by
substituting the FIA approach. Furthermore, it bears emphasis
that, even if H.R. 2048 were amended to address all of these
technical points, our more fundamental concerns about the
``panel of experts'' approach would not be fully assuaged.
Nonetheless, our staff stands ready to work with your staff
to provide suggested textual changes to address each of these
concerns.
Finally, although we have no particular objection to the
requirement in this legislation of a report by the Director
of the AO, Congress should be aware that the AO's role would
be to receive information from the FISA Courts and then
simply transmit the report as directed by law.
For the sake of brevity, we are not restating here all the
comments in our previous correspondence to Congress on
proposed legislation similar to H.R. 2048. However, the
issues raised in those letters continue to be of importance
to us.
We hope these comments are helpful to the House of
Representatives in its consideration of this legislation. If
we may be of further assistance in this or any other matter,
please contact me or our Office of Legislative Affairs at
202-502-1700.
Sincerely,
James C. Duff,
Director.
Mr. COATS. There is a lot more that could be said. We will shortly be
voting on the amendments here. I probably said more than I should.
Mr. ISAKSON. Will the Senator from Indiana yield?
Mr. COATS. I will be happy to yield.
This is one of the most important issues I have had to deal with
during my times of service on behalf of our State and our country. I
think getting the facts out has been necessary. It is a momentous
decision that has momentous consequences. I hope each of us will take
very seriously all that has been said and weigh that in their own
judgment and hopefully make the right decisions for the future of this
country.
I will be happy to yield to my colleague.
Mr. ISAKSON. I know we are about to adjourn for lunch, but I have to
come to the floor and pay the Senator a great compliment. For the last
6 days, the Senator has tried to illuminate some misperceptions and,
quite frankly, half-truths that have been talked about in terms of the
NSA program. You have provided great information to the Senate and to
the people of the United States of America, and I think it is ironic--
and I do not believe the Senator from Indiana knows this--but today in
the Finance Committee at 10:30 we had a hearing before the IRS
Commissioner, Mr. Koskinen, who was trying to explain what the IRS was
doing with the 104,000 identities that were stolen from the IRS, which
included the Social Security numbers, church contributions, home
residences, rent payments, debts, obligations, the entire amount of
information of 104,000 American citizens. Nobody is talking about
giving the IRS to the phone companies. Nobody is talking about the
amount of information the IRS has and whether the government abuses or
uses it. And here we are worried about 41 individuals who have the
ability to know 2 telephone numbers, the origination of a call and the
duration of that call, without its association to a name, unless a
judge says it is OK.
I think there has been a lot of misdirection this week. The American
people are starting to listen. I think the Senator from Indiana has
done a great job of illuminating the truth behind this issue. We have a
great country. You do not find anybody trying to break out of the
United States of America. They are all trying to break in. They are
because we are safe and secure. I commend the Senator for fighting for
the safety, the security, and the rights of the American people.
I yield back.
Mr. COATS. I thank the Senator for those words. I think this is a
fight for all of us. How I wish we had been putting our time and our
passion into what the Senator from Georgia just mentioned--a clear
breach of people's privacy on the record and a clear defense effort by
this administration to not have us go forward and examine this. If we
had been putting half of the passion into that, we would really be
servicing the American people and the breaches of their privacy that
are just apparent.
Here we have a program that has never had a case of a breach of
privacy, that has more oversight than any other program in the entire
U.S. Government, that involves all three branches of our government--
the judicial, the legislative, and the executive--all with the intent
of having something in place that can stop Americans from being killed
by terrorists, and we have to spend weeks arguing just to correct the
record, when so clearly in front of us are abuses by this
administration that we are not putting attention to--the irony of that
and the irony of the fact that every day we have more information about
the scope of these potential terrorist attacks against Americans. Here
we are releasing five known terrorist leaders from Guantanamo to a
country. We are combing the world to see if somebody will take them
because we do not want to retain them here, and we know they are going
to go back. They are not going back to be baristas at Starbucks. They
are not going back to do lawn work back home or start a microbusiness.
They are going back to join the enemy attack against us. They are going
back to the Taliban. They are going back to Al Qaeda. They are going
back to do what they were arrested for in the first place.
How ironic and how uncertain our situation here is relative to our
security, and we are arguing over a tool that can help protect us
instead of focusing on the real threat.
Anyway, I got worked up during the 6 days a number of times. I
appreciate the opportunity to, once again, try to clarify where we are.
Hopefully, the American people are listening.
We have a momentous decision to make coming up here very shortly. I
hope each of us will use not polls and not what the public perception
is, I hope each of us will use the judgment that we have had and the
access to information that we have had to make a
[[Page S3439]]
decision on the basis of what is best for the American people, not
about what is best politically, not what gets us past the next
election, not what is pleasing to people who want to hear things back
at home, not on any other basis than what is necessary to do everything
we can to keep us safe from known terrorist attacks that are
multiplying faster than we can keep up with across the world, and
Americans are in the crosshairs. Our decision should be based on that
and that alone.
I yield the floor.
____________________
[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Pages S3439-S3444]
USA FREEDOM ACT OF 2015--Continued
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I would like to inquire as to the order.
The PRESIDING OFFICER. The Senate is considering H.R. 2048
postcloture.
Mr. INHOFE. Mr. President, I ask that I be recognized.
The PRESIDING OFFICER. The Senator is recognized.
Mr. INHOFE. Mr. President, I know we have all had a chance to talk
about this and the seriousness of what is now before us at this time. I
look at the seriousness of this, and I listened to a lot of people
standing on the floor and saying things that sound popular to people
back home, and I have heard from some of the people in my State of
Oklahoma, saying: They talk about the privacy problems and all these
things that might be existing. Then I always think about my 20 kids and
grandkids and think that they are the ones who are at stake.
This world we have right now is a much more dangerous world than it
has ever been before. I look wistfully back at the good old days of the
Cold War when we had a couple superpowers. We knew what they had--
mutual assured destruction. It really meant something at that time. Now
we have crazy people with capabilities, people in countries who have
the ability to use weapons of mass destruction.
So right after 9/11 we formed the NSA. We have been talking about
that down here. It is not perfect, but I think it is important at this
last moment to point out the fact that a lot of lies have been told
down here. I heard one person--I think two or three different ones
talking about and making the statement that since the NSA procedure was
set up after 9/11, that has not stopped one attack on America. I would
like to suggest to you that a good friend of mine and a good friend of
the Chair's, General Alexander, who is a very knowledgeable person and
ran that program for a while, said--and this was way back 2 years ago,
2013--information ``gathered from these programs provided government
with critical leads to prevent over 50 potential terrorist events in
more than 20 countries around the world'' and that the phone database
played a role in stopping 10 terrorist acts since the 9/11 attacks.
I was very pleased to hear from my good friend, Senator Sessions, a
few minutes ago that a brand new poll that just came out of the field
shows that almost two-thirds of the people in America want to go back
and give back to the NSA those tools we took away 2 days ago.
Now we have a situation where we can talk about a few of the cases
where major attacks on this country were stopped by the process we put
in place after 9/11.
One was a planned attack in 2009. Najibullah Zazi was going to bomb
the New York City subway system. The plan was for him and two high
school friends to conduct coordinated suicide bombings, detonating
backpack bombs on New York City subway trains near New York's two
busiest subway stations; that is, Grand Central Station and Times
Square.
Sean Joyce, the Deputy FBI Director, said that the NSA intercepted an
email from a suspected terrorist in Pakistan communicating with someone
in the United States ``about perfecting a recipe for explosives.''
On September 9, 2009, Afghan-American Zazi drove from his home in
Aurora, CO, to New York City, after he emailed Ahmed--that was his Al
Qaeda facilitator in Pakistan--that ``the marriage is ready.'' That was
a code that meant ``We are ready now to perform our task.'' The FBI
followed Zazi to New York and broke up the plan of attack, and they
stated it was because of the email that was intercepted by the NSA that
allowed them to do that.
How big of a deal is that? People do not stop and think about the
fact that if you look at the New York City subway stations down there,
we know that the average ridership of the New York City subway during
peak hours averages just under 900,000 people--that is 900,000 people,
Americans who are living in New York City.
What we do know is that when they came to New York City to perform
their plan at Grand Central Station and Times Square, it was the NSA
using the very tools we took away from them 2 days ago, and you wonder,
how many lives would have been lost? If there are 900,000 riders on the
subway and they are ready to do this at two stations, are we talking
about 100,000 lives, 100,000 Americans being buried alive? That attack
was precluded by the tools that were used by the NSA that we took away
from them just 2 days ago. Many more have not been declassified.
GEN Michael Hayden and GEN Keith Alexander, who are both former
Directors of the NSA, and others have confirmed to me personally that
at least one of the three terrorist attacks on 9/11 could have been
avoided, and perhaps all three could have been avoided if we had had
the tools we gave the NSA right after 9/11, and also the attack on the
USS Cole could have been prevented entirely.
So you have to stop and think, it is a dangerous thing to stand on
the floor and say we have formed this thing in this dangerous world and
it has not stopped any attacks on America. That is what we are faced
with today.
I voted against the program the House passed that is going to be
considered in just a few minutes. I felt it was better to leave it as
we had it. Now that is gone. I look at it this way: I do support the
amendments that are coming up. I do think the last opportunity we will
have will be the program we will be voting on in just a few minutes.
So let's think about this, take a deep breath, and go ahead and pass
something so we at least have some capability to stop these attacks and
to gather information from those who would perpetrate these attacks and
then have time to put together a program that will be very workable and
make some changes if necessary.
With that, Mr. President, I yield the floor.
Extending FISA Provisions
Mr. LEAHY. It is unfortunate that we were unable to pass the USA
FREEDOM Act before the June 1, 2015, sunset of sections 206 and 215 of
the USA PATRIOT Act and the so-called ``lone wolf'' provision of the
Intelligence Reform and Terrorism Prevention Act. Senator Lee and I
both sought to bring up the USA FREEDOM Act well before the sunset date
to avoid just this situation. Now that the roving wiretap, business
records, and so-called ``lone wolf'' provisions have lapsed, it is
important that we make clear our intent in passing the USA FREEDOM Act
this week--albeit a few days after the sunset. Could the Senator
comment on the intent of the Senate in passing the USA FREEDOM Act
after June 1, 2015?
Mr. LEE. Although we have gone past the June 1 sunset date by a few
days, our intent in passing the USA FREEDOM Act is that the expired
provisions be restored in their entirety just as they were on May 31,
2015, except to the extent that they have been amended by the USA
FREEDOM Act. Specifically, it is both the intent and the effect of the
USA FREEDOM Act that the now-expired provisions of the Foreign
Intelligence Surveillance Act, FISA, will, upon enactment of the USA
FREEDOM Act, read as those provisions read on May 31, 2015, except
insofar as those provisions are modified by the USA FREEDOM Act, and
that they will continue in that form until December 15, 2019. Extending
the effect of those provisions for 4 years is the reason section 705 is
part of the act.
[[Page S3440]]
Mr. LEAHY. I would also point out that when we drafted the USA
FREEDOM Act, we included a provision to allow the government to collect
call detail records, CDRs, for a 180-day transition period, as it was
doing pursuant to Foreign Intelligence Surveillance Court orders prior
to June 1, 2015. This provision was intended to provide as seamless a
transition as possible to the new CDR program under section 101 of the
USA FREEDOM Act. I thank the junior Senator from Utah for his
partnership on this bill.
Mr. HATCH. Mr. President, our terrorist enemies continue to present a
clear and present danger to our Nation's safety. We must use a broad
array of information gathering tools to be successful in thwarting
their plots and preventing future attacks. As the top Republican on the
Senate Judiciary Committee after 9/11, I worked across party lines to
give our law enforcement and intelligence communities the authorities
they need to keep us safe. Having served longer than any other
Republican on the Intelligence Committee, I can personally attest to
the critical importance of these authorities in combating real
terrorist threats.
Given the extensive and effective privacy and civil liberties
safeguards already in place, I strongly supported a clean
reauthorization of the existing law. Unfortunately, such legislation
could not gather sufficient support in today's climate of
misinformation about our efforts to stay one step ahead of the
terrorists. Contrary to the claims of its proponents, the so-called USA
FREEDOM Act will hamper our ability to address serious terrorist
threats. My concerns about this legislation were further enhanced when
the Senate voted down several reasonable amendments that represented
modest changes needed to preserve our security. Accordingly, I voted
against the bill because it will not provide the protections we need
and will put our Nation at risk.
One of the fundamental flaws of the USA FREEDOM Act is its creation
of unnecessary delays and impediments to our efforts to protect the
American people. Under this legislation, telephone metadata-consisting
of information like the number calling and the length of the call-would
no longer be collected by the government but instead be retained by
private communications corporations. Proponents of the bill argue that
this move is necessary to protect privacy. This argument is
unpersuasive, given that the data collected does not include the
identities of the callers or the content of their communications. I
oppose this approach because the bill lacks any requirement for these
companies to retain this data for any length of time. Without such a
requirement, the effectiveness of a search of telephone metadata would
obviously be compromised.
One of the other major flaws of the USA FREEDOM Act is its amicus
curiae provision, which would insert a legal advisor into the FISA
COURT process to make arguments to advance privacy and civil liberties.
Such an approach threatens to insert leftwing activists into an
incredibly sensitive and already well-functioning process, a radical
move that would stack the deck against our law enforcement and
intelligence communities. Given that previous law already provided
intense scrutiny and oversight from the Justice Department, Congress,
and the courts, this new provision is both unnecessary and potentially
quite dangerous.
The Senate's action today undermines not only the operational
effectiveness of one of our most critical tools to safeguard our
national security. Going forward, I will do everything within my power
to ensure that our law enforcement and intelligence professionals have
all the tools they need to keep us safe.
Mrs. BOXER. Mr. President, Sunday night was just another self-
inflicted crisis from Senator McConnell and the Republican leadership.
Playing politics with our national security is reckless. And allowing
others to play politics with our national security, against the
majority of the U.S. Senate and House, is not leadership.
The Republicans said, ``Put us in the majority and we will govern
responsibly.'' They claimed there would be no more shutdowns, no more
governing by crisis. Yet, on Sunday night our intelligence
professionals were left without the important tools they need to fight
terrorism. And now Republicans are at it again--proposing amendments
that would delay the process and leave us without these critical
capabilities for even longer.
FBI Director Comey said that his Agency uses section 215 fewer than
200 times per year, but when the FBI uses it, ``it matters
tremendously.'' And the White House National Security Council's Ned
Price said that a sunset would result ``in the loss, going forward, of
a critical national security tool.''
I can't believe Republicans would take us to the brink and put our
country at risk. It is shameful. The USA FREEDOM Act is supported by a
wide, bipartisan majority in both Chambers. It passed the House with
338 votes. A little over a week ago, a clear majority of Senators, 57,
voted to proceed to this legislation. That still wasn't enough. Senator
McConnell and his Republican colleagues blocked it from moving forward.
On Sunday night, even more Senators did the right thing and voted in
support of the USA FREEDOM Act. Mr. President, 77 Senators voted to
proceed to a debate on the USA FREEDOM Act.
I want to thank my colleagues who worked tirelessly on this
legislation, who reached out to the intelligence community, technology
companies, and privacy and civil liberties groups to come up with a set
of reforms that maintains the important balance between protecting
privacy and keeping our country safe. It is not easy to get this level
of support. The USA FREEDOM Act strikes an important balance between
protecting our privacy and defending our country.
The bill reforms the PATRIOT Act by ending the bulk collection of
Americans' telephone records while still providing the ability for
investigators to get the records in a more targeted manner. It would
improve the transparency of the government's surveillance activities by
adding additional reporting requirements and giving private companies a
greater ability to publically report when they receive requests for
information from the FBI or NSA. And it would add a panel of experts to
the FISA Court who can assist in providing additional points of view
when cases involve significant or novel interpretations of the law.
We need to pass this bipartisan bill immediately and send it to the
President, without amendments to water it down and further delay the
intelligence community's access to these important authorities.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. FRANKEN. Mr. President, thank you.
I rise today to urge prompt passage of the House-passed USA FREEDOM
Act of 2015 and to urge opposition to the amendments offered by the
majority leader. Those amendments are unnecessary. They would weaken
the bill in unacceptable ways, and they would only serve to prolong and
deepen the uncertainty around the reform and continuation of important
national security authorities.
The House-passed USA FREEDOM Act is measured, compromise legislation
that is the result of lengthy negotiations that bring much needed
reforms to some of our surveillance authorities, ensuring that we
safeguard Americans' rights while increasing the government's
accountability. I am proud to have worked with Senator Dean Heller of
Nevada to craft the bill's transparency provisions, which draw support
from privacy advocates, the business community, and national security
experts.
The USA FREEDOM Act works to end bulk collection programs that our
intelligence community has told us are not necessary. At the same time,
the bill makes sure our national security agencies have legal tools
that are necessary to protect our Nation. Put simply, the USA FREEDOM
Act of 2015 strikes the balance we need--making sure that our
government can keep our Nation safe without trampling on our citizens'
fundamental privacy rights.
Of course, the public cannot know if we are succeeding in striking
that balance if they do not have access to even the most basic
information about our major surveillance programs. That is why my focus
has been on the legislation's transparency provisions. Under the
provisions I wrote with Senator
[[Page S3441]]
Heller, the American people will be better able to decide for
themselves whether we are getting this right.
For all these reasons, the act has my strong support. And I am in
good company. The House has passed it. The President is ready to sign
it. We have the votes here to pass it. So what are we waiting for?
Senator McConnell has offered several amendments. And here is the
problem: They deviate from the House bill without improving the
legislation. At best, the result of adopting these amendments would be
further delay, further negotiation, and a highly uncertain outcome.
Now that we have allowed the national security authorities at issue
to expire, we simply do not know how the House would proceed if we sent
them back a modified bill. Maybe that kind of risk and delay would be
justified if these amendments improved the bill, but they do not. I
would like to talk a little bit about why these amendments are both
unnecessary and problematic.
The majority leader's main substitute amendment makes two additions
to the bill. The first is a requirement that electronic communications
service providers notify the government if they plan to shorten the
length of time they retain call detail records--records that the
government may seek to query under the USA FREEDOM Act.
The fact is, based on how our country's telecom infrastructure is set
up, the government only goes to a handful of companies for call detail
records, and those companies have told us they have business reasons
for retaining records. Based on a long history of working with these
companies--under these authorities, other authorities--the Attorney
General and the Director of National Intelligence have told us the USA
FREEDOM Act is fine as it is. There simply is not a problem in need of
a solution here. And look, this is the kind of thing that we can
revisit if in the future some change in circumstances means that data
retention threatens to become a problem. It certainly does not need to
risk derailing the bill and its reforms now.
The second change in the majority leader's substitute amendment is a
certification requirement asking the Director of National Intelligence
to certify to Congress that the USA FREEDOM Act's transition from bulk
collection of call detail records to a more targeted approach is
operationally effective.
To be clear, this certification, whether issued or not, in no way
affects the effective date of the bill or the timeline for the
transition. It has no statutory limitations. It is a wholly unnecessary
deviation from the House-passed bill. If there is a problem with the
operational effectiveness of the transition, you can bet that the
Director of National Intelligence is going to let us know, and I would
certainly hope and expect that we would all be ready to listen and work
with him at that point. Again, this is the kind of thing that should
not risk derailing the bill now.
The majority leader has offered other amendments that seek to weaken
the USA FREEDOM Act more directly. One amendment would lengthen the
time before the bill with its various reforms goes into full
effect. That would do nothing but unnecessarily extend bulk collection
programs. NSA has told us they can transition in 6 months, as provided
for in the bill as it stands. There is no justification for extending
the timeline now.
Another amendment would render ineffective one of the safeguards for
Americans' privacy rights and civil liberties in the bill. This
amendment would weaken the role of outside, nongovernment experts in
participating in certain cases before the FISA Court. That is an
unacceptable change to a provision that has already been the subject of
bipartisan negotiations and compromise.
That is really the thing to remember--this is a compromise bill. In
writing our transparency provisions, Senator Heller and I had to
compromise a great deal. We didn't get everything we wanted when we
initially negotiated these provisions last year, and we had to
compromise further still this year. I am disappointed that the bill
doesn't include all of the requirements that were agreed to in our
discussions with the intelligence community and that were included in
the Senate bill last Congress. But that is the nature of bipartisan
compromise. And I recognize that right now we need to start by taking
one big step in the right direction, and that is by passing the USA
FREEDOM Act.
Down the road, we will have the opportunity to revisit these issues
as needed. For my part, I am committed to pushing my colleagues to
revisit the transparency provisions. We still have work to do,
particularly with regard to section 702, which has to deal with the
collection of communications of foreigners abroad. But, again, right
now it is clear what needs to happen in this Chamber. We need to pass
the House-passed USA FREEDOM Act without further amendment. If we do
that, we can get these authorities back up and running. That is exactly
what we should do.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I wish to thank the Senator from Minnesota
for his words. The press and everybody else does not see the hundreds
of hours of negotiations between Democrats and Republicans, Senators
and Members of the House of Representatives working on this. The
Senator from Minnesota is one of those who worked very hard to get us
to the point where we are today. It has not been easy. Nobody got
everything they wanted. I didn't get everything I wanted. Senator Lee
didn't get everything he wanted. The Senator from Minnesota didn't get
everything he wanted. But because of the work of people such as the
Senator from Minnesota, we have a far better piece of legislation, and
it is probably why it passed overwhelmingly in the other body, with
Republicans and Democrats agreeing. In fact, that is why we have to
reject these amendments and we have to cleanly pass the House-passed
USA FREEDOM Act.
Again, I cannot emphasize to Senators how much time has gone into
this by key Republicans and key Democrats in the House and key
Republicans and key Democrats in the Senate. We have worked behind the
scenes for days, weeks, and months to get here.
Cleanly passing the House-passed USA FREEDOM Act is the only way to
avoid prolonging the uncertainty that the intelligence community now
faces because of the lapse in the three authorities this past Sunday. I
think both Senator Lee and I would agree the lapse in authorities was
entirely avoidable. The Senate majority has put the intelligence
community and the American people in this position because of a
manufactured crisis, procedural delays.
Understand that any changes in this bill--as I have stated and as the
distinguished senior Senator from California has indicated, as well as
others, any changes in the bill will force it back to the House, and
there is absolutely no guarantee that the House will accept the
Senate's changes and pass the new bill. In fact, the House Republican
majority leader said this morning that it would be a challenge to pass
any bill that came back with changes. The Republican chairman of the
House Judiciary Committee put it more bluntly. He warned that any
amendments would likely make the sunsets permanent. Keep that in mind.
We can pass some amendments we may not think are major, although some
of us think they are, but by passing them, all those who say they want
to give the tools to the intelligence community--they are making the
sunsets permanent if we pass these amendments.
So I urge Senators to oppose all of the amendments that are being
offered by the majority leader. Senator Blumenthal, Senator Franken,
and others have spoken about the reasons to oppose the FISA Court
amicus amendment and the substitute amendment. I agree with them
wholeheartedly, and I thank them for their leadership. As I said
earlier to others, Senator Blumenthal used his experience as a former
attorney general, former U.S. attorney to work on the amicus provision.
I also urge Senators to oppose the amendment which would leave the
current bulk collection program in place for a full year. Extending the
current bulk collection program for a full year
[[Page S3442]]
is unnecessary. Beyond being unnecessary, it creates significant legal
uncertainty for the government. Remember, a Federal appellate court has
already ruled that the program is unlawful, and they upheld a provision
assuming that Congress is going to change it. But it is very obvious
when we read the Second Circuit opinion that they mean a relatively
short time, not a year.
So the amendment to leave the bulk collection program in place for a
full year is only going to invite further legal challenges. It will
also delay implementation of tools the intelligence community has asked
us to provide, including what is in this bill--a new emergency
authority to request business records under section 215.
I can't say enough about all of the work we have put in for 2 years
across the aisle and across the Capitol. This is a bill which brings
much needed reform to the government's surveillance authorities, but it
also ensures that the intelligence community has the tools to keep us
safe.
The USA FREEDOM Act is milestone legislation. It will enact the most
significant reforms of government surveillance powers since the USA
PATRIOT Act. I am proud of the bipartisan and the bicameral effort that
led to this bill.
Today, we can pass important surveillance reform legislation and then
work to build on these reforms in coming years.
So I urge Senators to oppose all amendments and then vote to pass the
USA FREEDOM Act, just as the House passed it. We don't need to inject
any more uncertainty or delay into the process. None of these
amendments are worth causing further delay. Pass it. This will be
signed into law tonight by the President.
I see the distinguished majority leader on the floor, so I yield the
floor.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. Mr. President, I know of no further debate on the
bill.
The PRESIDING OFFICER. Is there further debate?
Amendment No. 1453
If not, the question is on agreeing to amendment No. 1453.
Amendment No. 1452
Mr. McCONNELL. I move to table amendment No. 1452.
The PRESIDING OFFICER. The question is on agreeing to the motion.
The motion was agreed to.
Vote on Amendment No. 1451
The PRESIDING OFFICER. The question is on agreeing to amendment No.
1451.
Mr. McCONNELL. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Mr. DURBIN. I announce that the Senator from Virginia (Mr. Warner) is
necessarily absent.
The PRESIDING OFFICER (Mr. Lankford). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 42, nays 56, as follows:
[Rollcall Vote No. 198 Leg.]
YEAS--42
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Ernst
Fischer
Flake
Grassley
Hatch
Hoeven
Inhofe
Isakson
Johnson
King
Kirk
McCain
McConnell
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Sessions
Shelby
Thune
Tillis
Toomey
Vitter
Wicker
NAYS--56
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cruz
Daines
Donnelly
Durbin
Enzi
Feinstein
Franken
Gardner
Gillibrand
Heinrich
Heitkamp
Heller
Hirono
Kaine
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Nelson
Paul
Peters
Reed
Reid
Sanders
Schatz
Schumer
Scott
Shaheen
Stabenow
Sullivan
Tester
Udall
Warren
Whitehouse
Wyden
NOT VOTING--2
Graham
Warner
The amendment (No. 1451) was rejected.
The PRESIDING OFFICER. The majority leader.
Unanimous Consent Agreement--H.R. 1735
Mr. McCONNELL. Mr. President, I ask unanimous consent that the
cloture motion with respect to the motion to proceed to H.R. 1735,
which is the Defense bill, be withdrawn; further, that at 11 a.m. on
Wednesday, June 3, the Senate proceed to the consideration of H.R.
1735, and it be in order for Senator McCain to offer amendment No.
1463, the text of which is identical to S. 1376, the Armed Services
Committee-reported NDAA bill; finally, that the time until 2:30 p.m. be
for debate only and equally divided between the bill managers or their
designees.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Mr. President, reserving the right to object, we are not
the sort of minority party that objects to virtually everything. We
want to help move things forward. But I also want to be clear that we
are not going to require a vote to move forward on the Defense
authorization bill. But everyone should be aware that the President
said he would veto this bill. It has all of this strange funding in
it--funding that my Republican colleagues railed against on previous
occasions. Now they are using it.
We have grave concerns about this bill. Unless it is changed, I
repeat, the President will veto it. I hope there are some significant
changes in the bill while it is on the floor so we can help to vote to
get it off the floor. So based upon that, I do not object.
The PRESIDING OFFICER. Without objection, it is so ordered.
Vote on Amendment No. 1450
The question is on agreeing to amendment No. 1450.
The yeas and nays have been previously ordered.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Mr. DURBIN. I announce that the Senator from Virginia (Mr. Warner) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 44, nays 54, as follows:
[Rollcall Vote No. 199 Leg.]
YEAS--44
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Ernst
Fischer
Flake
Grassley
Hatch
Hoeven
Inhofe
Isakson
Johnson
Kirk
McCain
McConnell
Nelson
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Schatz
Scott
Sessions
Shelby
Thune
Tillis
Toomey
Vitter
Wicker
NAYS--54
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cruz
Daines
Donnelly
Durbin
Enzi
Feinstein
Franken
Gardner
Gillibrand
Heinrich
Heitkamp
Heller
Hirono
Kaine
King
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Paul
Peters
Reed
Reid
Sanders
Schumer
Shaheen
Stabenow
Sullivan
Tester
Udall
Warren
Whitehouse
Wyden
NOT VOTING--2
Graham
Warner
The amendment (No. 1450) was rejected.
Vote on Amendment No. 1449
The PRESIDING OFFICER. The question is on agreeing to amendment No.
1449.
The yeas and nays have been previously ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 43, nays 56, as follows:
[[Page S3443]]
[Rollcall Vote No. 200 Leg.]
YEAS--43
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Ernst
Fischer
Grassley
Hatch
Hoeven
Inhofe
Isakson
Johnson
King
Kirk
McCain
McConnell
Nelson
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Sessions
Shelby
Thune
Tillis
Toomey
Vitter
Wicker
NAYS--56
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cruz
Daines
Donnelly
Durbin
Enzi
Feinstein
Flake
Franken
Gardner
Gillibrand
Heinrich
Heitkamp
Heller
Hirono
Kaine
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Paul
Peters
Reed
Reid
Sanders
Schatz
Schumer
Shaheen
Stabenow
Sullivan
Tester
Udall
Warner
Warren
Whitehouse
Wyden
NOT VOTING--1
Graham
The amendment (No. 1449) was rejected.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. Mr. President, I ask unanimous consent that Senator
Leahy be recognized for 3 minutes. Then, I would say to my colleagues,
I am going to use my leader time to make a final statement, and then we
will be ready for the final vote.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Vermont.
Mr. LEAHY. Mr. President, I thank the distinguished majority leader
for his courtesy.
Very briefly, we worked for 2 years across the aisle and actually
across the Capitol. I don't know how many meetings Senator Lee, and
others, and I have had. Now the Senate is finally poised to pass our
USA FREEDOM Act and send it to the President for his signature. This
bill brings much-needed reform to the government's surveillance
authorities. It will end the bulk collection of Americans' phone
records, increase transparency, improve oversight, and, most
importantly, help restore Americans' privacy--all while ensuring that
the intelligence community has the tools it needs to keep us safe.
I am proud to have done this. I have fought to protect the privacy
and constitutional rights of Vermonters and all Americans since 1975,
when I cast my first-ever vote as a Senator to approve the
establishment of the Church Committee. I will continue to fight for
Americans' privacy.
I urge Senators to vote to pass the USA FREEDOM Act.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. I will now proceed on my leader time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, earlier this year I observed that
President Obama's national security policy has been noteworthy for its
consistent objectives. He has been very consistent--drawing down our
conventional and nuclear forces, withdrawing from Iraq and Afghanistan,
ending the tools developed by the previous administration to wage the
war on terror, and placing a greater reliance upon international
organizations and diplomacy. That has been the hallmark of the Obama
foreign policy.
None of this is a surprise. The President ran in 2008 as the
candidate who would end the wars in Iraq and Afghanistan and the war on
terror. And our Nation has a regrettable history of drawing down our
forces and capabilities after each conflict, only to find ourselves ill
prepared for the next great struggle.
The book ends to the President's policies were the Executive order
signed his very first week in office that included the declaration that
Guantanamo would be closed within a year, without any plan for what to
do with its detainees, and the Executive order that ended the Central
Intelligence Agency's detention and interrogation programs. Now, some
of these detainees, my colleagues, are now in Qatar, preparing to
rejoin the Taliban. Some are in Uruguay, camped out in a park across
from the American embassy. And, regrettably, some are back on the
battlefield in Yemen, Afghanistan, and Syria. These are other hallmarks
of the Obama foreign policy.
Last year the President announced that all of our combat forces would
be withdrawn from Afghanistan by the end of his term in office, whether
or not--whether or not--the Taliban were successful in capturing parts
of Afghanistan, whether or not Al Qaeda senior leadership has found a
more permissive environment in the tribal areas of Pakistan, and
whether or not Al Qaeda has been completely driven from Afghanistan.
I will repeat. The pattern is clear. The President has been a
reluctant Commander in Chief. And between those two book ends, my
colleagues, much has occurred that has undermined our national
security.
There was the failure to negotiate a status of forces agreement with
Iraq that would have allowed for a residual military force and
prevented the assault by the Islamic State of Syria and the Levant.
China is aggressively expanding its sphere of influence. There is the
threat to veto funding for the troops--we just heard it from the
minority leader--and their equipment without similar increases at the
IRS and EPA.
Let me say that again. The President is threatening to veto the
Defense bill unless we increase funding for the IRS and EPA. Now, this
is going to diminish our military's ability to respond to the myriad of
threats that are facing us today. And we all know what they are. Al
Qaeda in the Arabian Peninsula has doggedly pursued tactics and
capabilities to circumvent all that we have done since September 11,
2001, to defend our country.
So while the President has inflexibly clung to campaign promises made
in 2008, the threat from Al Qaeda has metastasized around the world.
ISIL, which has broken off from Al Qaeda, uses social media to
communicate with Americans, divert them to encrypted communications,
encourage travel to the would-be caliphate, and encourage attacks right
here at home. Al Qaeda and ISIL publish online magazines instructing
individuals in terrorist tactics. And in the long run, the al-Nusra
Front in Syria may present the greatest long-term threat--the greatest
long-term threat--to our homeland.
The President's efforts to dismantle our counterterrorism tools have
not only been inflexible, but they are especially ill timed.
So today the Senate will vote on whether we should take one more tool
away from those who defend this country every day: the ability of a
trained analyst, under exceedingly close supervision, and only with the
approval of the Foreign Intelligence Surveillance Court, to query a
database of call data records based on reasonable articulable
suspicion--no content, no names, no listings of phone calls of law-
abiding citizens. None of that is going on. We are talking about call
data records.
These are the providers' records, which is not what the Fourth
Amendment speaks to. It speaks to ``the right of the people to be
secure in their persons, houses, papers, and effects.'' But these
records belong to the phone companies. Let me remind the Senate that
the standard for reasonable articulable suspicion is that the terror
suspect is associated with a ``foreign terrorist organization'' as
determined by a court. Nobody's civil liberties are being violated
here.
The President's campaign to destroy the tools used to prevent another
terrorist attack has been aided by those seeking to prosecute officers
in the intelligence community, to diminish our military capabilities,
and, despicably, to leak and reveal classified information--putting our
Nation further at risk.
Those who reveal the tactics, sources, and methods of our military
and intelligence community give a playbook--a playbook--to ISIL and to
Al Qaeda. As the Associated Press declared today, the end of the
section 215 program is a ``resounding victory for Edward Snowden''--a
``resounding victory for Edward Snowden.'' It is also a resounding
victory for those currently plotting attacks against our homeland.
Where was the defense of the National Security Agency from the
President? Our chairman of the Intelligence
[[Page S3444]]
Committee and his committee colleagues have worked with determination
to educate the Senate concerning the legal, technical, and oversight
safeguards currently in place.
We hear concerns about public opinion. A CNN poll was released
today--just today. The CNN poll is not exactly part of the rightwing
conspiracy. It states that 61 percent of Americans--61 percent of
Americans--think that the expiring provisions of the PATRIOT Act,
including data collection, should be renewed.
So if there is widespread concern out of America about privacy, we
are not picking it up. They are not reporting it to CNN. Sixty-one
percent say: I am not concerned about my privacy. I am concerned about
my security.
So my view is that the determined effort to fulfill campaign promises
made by the President back in 2008 reflects an inability to adapt to
the current threat--what we have right now--an inflexible view of past
political grievances and a policy that will leave the next President in
a weaker position to combat ISIL.
I cannot support passage of the so-called USA FREEDOM Act. It does
not enhance the privacy protections of American citizens, and it surely
undermines Americans' security by taking one more tool from our war
fighters, in my view, at exactly the wrong time.
The PRESIDING OFFICER. The Democratic leader.
Mr. REID. Mr. President, if my friend the majority leader is
concerned, as he should be, about why the country is less secure--
especially in the last couple of weeks--he should look in the mirror.
We have a situation where he has tried to divert attention from what
has gone on here. It was as if there had been a big neon sign flashing
saying: You can't do highway reauthorization, you can't do FISA
reauthorization, and you can't do trade in 4 or 5 days.
To do this right, we should have spent some time on FISA. Because of
the mad rush to do trade, that did not happen. So today to try to
divert attention from what I believe has been a miscalculation of the
majority leader, it is making this country less safe. Every day that
goes by with the FISA bill not being reauthorized is a bad day for our
country. It makes us less safe. And to try to divert attention, as he
has tried doing in the last few minutes--blaming the Obama
administration for stopping torture, the detention centers, pulling
troops out of Iraq--I say, my friend is looking in the wrong direction.
The issue before us is not to be--and he is, in effect, criticizing
the House of Representatives for passing this FISA bill, to reauthorize
it in a way that is more meaningful to the American people and makes us
more safe. It makes it so people feel more secure about the
intelligence operations we have going on in this country.
Is he criticizing the Speaker for working hard to get this bill
reauthorized and in a fashion the American people accept? Because his
criticism today is not directed toward people who voted here today; it
is directed toward the bipartisan efforts in the House of
Representatives that passed this bill overwhelmingly, with 338 votes.
It is one of a few bipartisan things they have done over there, and
they did it for the security of this Nation. I do not think any of us
needs a lecture on why we are less secure today than we were a few days
ago. I hope everyone will vote to continue the surveillance
possibilities that we have available if this law passes. If it does not
pass, what are we going to do? It will go to the House of
Representatives. The majority leader of the House of Representatives,
the distinguished House Member from California, Mr. McCarthy, said:
They do not want anything from us. They want this bill passed. They
want the USA FREEDOM bill passed today. That is what the chairman of
the Judiciary Committee, Mr. Goodlatte, said. Of course, that is what
the Democratic leader says also.
Let's vote. A vote today to pass this bill will make our country
safer immediately, not a week from now. That is how long it will take,
at a minimum, if this bill is changed when it goes to the House--I am
sorry--if it does not go to the President directly, and it should go
directly from here to the President of the United States. He can sign
this in a matter of hours and put us back on a more secure footing to
protect ourselves from the bad guys around the world.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. Mr. President, as my good friend, the minority leader,
frequently reminded me over the last few years, the majority leader
always gets the last word.
Look, his fundamental complaint is he does not get to schedule the
Senate anymore. He wanted to kill the President's trade bill, and so he
did not like the fact that we moved to the trade bill early enough
before the opposition to it might become more severe.
I say to the Senator, the minority leader, he does not get to set the
schedule anymore. My observations about the President's foreign policy
are directly related to the vote we are about to cast. It remains my
view--I know there are differences of opinion, and I respect everybody
in here who has a different opinion--that this bill is part of a
pattern to pull back, going back to the time the President took office.
I remember the speech in Cairo back in 2009 to the Muslim world, which
sought to question American exceptionalism. We are all pretty much
alike. If we just talked to each other more, everything would be OK. In
almost every measurable way, all the places I listed, plus Ukraine--you
name them--we have been pulling back. My view with regard to my
position and my vote is that this is a step in the wrong direction. But
I respect the views of others, and I suspect the minority leader will
be happy at the end of the day. It appears to me the votes are probably
there to pass this bill, and it will go to the President. I still think
it is a step backward from where we are. It has been a great debate. I
respect all of those who engaged in it on both sides. I think it is
time to vote.
I yield the floor.
The bill was ordered to a third reading and was read the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass?
Mr. LEAHY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 67, nays 32, as follows:
[Rollcall Vote No. 201 Leg.]
YEAS--67
Alexander
Ayotte
Bennet
Blumenthal
Booker
Boozman
Boxer
Brown
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Coons
Cornyn
Cruz
Daines
Donnelly
Durbin
Feinstein
Flake
Franken
Gardner
Gillibrand
Grassley
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Johnson
Kaine
King
Kirk
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Peters
Reed
Reid
Rounds
Schatz
Schumer
Scott
Shaheen
Stabenow
Sullivan
Tester
Udall
Vitter
Warner
Warren
Whitehouse
Wyden
NAYS--32
Baldwin
Barrasso
Blunt
Burr
Coats
Cochran
Collins
Corker
Cotton
Crapo
Enzi
Ernst
Fischer
Hatch
Isakson
McCain
McConnell
Moran
Paul
Perdue
Portman
Risch
Roberts
Rubio
Sanders
Sasse
Sessions
Shelby
Thune
Tillis
Toomey
Wicker
NOT VOTING--1
Graham
The bill (H.R. 2048) was passed.
The PRESIDING OFFICER. The majority leader.
____________________
[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Page S3445]
USA FREEDOM ACT
Mr. LEAHY. Mr. President, the bill we just passed is a historic
moment. It is the first major overhaul of government surveillance laws
in decades that adds significant privacy protections for the American
people. It has been a long and difficult road, but I am proud of what
the Congress has achieved today. This is how democracy is supposed to
work. Congress is ending the bulk collection of Americans' private
phone records once and for all.
To my partners in the Senate on both sides of the aisle, I thank you.
Senator Lee, whose name is on our bill here in the Senate, believes
strongly in our constitutional system of government. He has worked
tirelessly to advance this bill from the day we first introduced the
USA FREEDOM Act. Senator Franken has devoted himself to the
transparency measures in the bill. Senator Blumenthal shaped the FISA
Court amicus provisions. This was hard fought, and they never wavered.
I also want to thank Senators Heller, Cruz, Murkowski, Daines,
Durbin, and Schumer, the other original cosponsors of this bill. They
have each worked to help advance this legislation and build the
coalition we needed to finally get to our strong bipartisan vote in the
Senate for passage. I must also mention Senator Feinstein, who provided
invaluable support to get this bill across the finish line. Of course,
I also need to thank Minority Leader Reid, who has never wavered in his
strong support and responsible leadership.
On the House side, Chairman Goodlatte and Congressmen Sensenbrenner,
Conyers, and Nadler have been the kind of bipartisan partners on this
bill that every legislator wants in their corner.
I also need to thank Senators Wyden and Heinrich and former Senator
Mark Udall, who used their positions on the Senate Intelligence
Committee to ask the hard questions behind closed doors and who have
fought to end this program for so long.
While we have much work to do, we have accomplished something
momentous today. We are a better nation for it.
I also want to thank the many staffers who have worked long hours on
this legislation for nearly two years now. On my own Judiciary
Committee staff, I thank Chan Park, Lara Flint, Jessica Brady, Hasan
Ali, Patrick Sheahan, Logan Gregoire, Jonathan Hoadley, Joel Park and
Kristine Lucius. My personal office staff, including J.P. Dowd, Erica
Chabot, David Carle, John Tracy and Diane Derby, also worked hard on
this effort, and I am grateful for that. I also want to thank
Democratic and Republican Senate staffers who have toiled countless
hours on this effort, including Matt Owen, Mike Lemon, Wendy Baig,
James Wallner, Josh Finestone, Scarlet Doyle, Ayesha Khanna, Alvaro
Bedoya, Helen Gilbert, Samantha Chaifetz, Sam Simon, John Dickas, Chad
Tanner, and Jennifer Barrett.
We not only worked across the aisle on this legislation, but we also
worked across the Capitol. The bipartisan group of House staff who
helped to craft this compromise bill and generated such an overwhelming
vote on this legislation deserve enormous credit for their work:
Caroline Lynch (who along with Lara Flint deserves a perfect attendance
award for extensive negotiating sessions), Bart Forsyth, Aaron Hiller
(whose wife deserves our thanks as she had a baby just weeks before the
House considered the bill), Jason Herring, Shelley Husband, Branden
Ritchie, and Perry Apelbaum.
I thank those at the White House who devoted countless hours
including Josh Pollack, Jeff Ratner, Ryan Gillis, Michael Bosworth, and
Chris Fonzone. I also appreciate the work of so many other executive
branch officials at the Justice Department, Federal Bureau of
Investigation, Office of the Director of National Intelligence, and
National Security Agency who work so hard to keep our country safe and
answered our questions at all hours of the day and night.
I also need to thank the many public interest groups, on all ends of
the political spectrum, who stuck with us despite many challenges.
There are too many to name, but without their energy and expertise,
this reform effort would never have come to fruition. Likewise, the
technology industry provided invaluable input and support for this
legislation.
And finally, I would like to thank the dedicated staff in the Office
of Senate Legislative Counsel, whose tremendous work in assisting us
with legislative drafting often goes unnoticed and unrecognized. In
particular, I want to thank John Henderson, Kim Albrecht-Taylor, and
James Ollen-Smith for their assistance and technical expertise.
Seeing nobody else seeking recognition, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Ayotte). Without objection, it is so
ordered.
____________________
[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Pages S3447-S3448]
USA FREEDOM ACT
Mr. TOOMEY. Madam President, I rise today to speak on H.R. 2048, the
USA FREEDOM Act. I want to put it in some context and discuss why I
voted the way I did today, but first, a little background.
It has been now more than a decade since Al Qaeda launched its deadly
attacks on U.S. soil that we all remember so well, killing 2,977 people
in New York City, in Washington, DC, and just outside of Shanksville,
PA, injuring about 2,700 more, and taking away far too many parents,
children, wives, husbands, families, and friends.
As we gather here today, we face other grave threats as well. One of
the most grave threats is the threat of the Islamic State of ISIS.
Secretary of Defense Hagel described it this way. He said ISIS is
``beyond anything that we've seen'' and constitutes an ``imminent
threat to every interest we have.''
We know this is a brutal group. They behead people. They crucify
people. They burn people alive. They systematically sell young girls
into slavery. They control large regions in the Middle East now. They
have their sights set on attacking the United States.
We know there are radicalized ISIS sympathizers and adherents here in
the United States. Many of them are eager to carry out this group's
destructive ambitions right here in our own country.
We know ISIS has the resources to carry out attacks on our homeland.
Al Qaeda spent about half a million dollars. That is what it cost them
to plan and execute the entire attack on the World Trade Center and the
Pentagon. ISIS has amassed a $2 billion fortune--4,000 times as much
money as Al Qaeda spent on September 11. ISIS collects something on the
order of an additional $1 million to $2 million every day through the
variety of means it has because of the land it controls. So this is a
very serious threat.
Like any other threat, we have an obligation to protect the American
people from this to the extent we can. In the process, we have an
obligation to strike an appropriate balance between the national
security we owe our constituents, the American people, and the robust
civil liberties we ought to protect because they are enshrined in our
Constitution and important to our country. In my view, section 215--the
controversial part of the USA PATRIOT Act--appropriately struck that
balance.
The best policy we could have pursued this week would have been to
reauthorize section 215 in pretty much the form it has been in. If we
had done so, we would have been repeating what we had done many times
before by overwhelming bipartisan majorities I think seven previous
times. In 2005, 2006, 2009, 2010, and 2011, Congress reauthorized the
USA PATRIOT Act, including section 215. Congress did that because there
is nothing radical about section 215 or the PATRIOT Act. This--what
became a very controversial section recently--simply gave our national
security officials the same kind of ability to access documents,
reports, and other tangible items when investigating a potential
international terrorist attack that a grand jury has and has long had
when investigating ordinary criminal events such as a car theft.
It is important to note what section 215 did not authorize. It did
not authorize the NSA to conduct wiretaps or listen in on any phone
conversations. That has never happened. Despite that, there has been
rampant misinformation about the telephone metadata program, as it is
referred to, that was conducted under section 215, so I want to discuss
that a little bit.
I think one of the most important things to stress here is that this
metadata program contained only information a third party had. It was
not private information that an individual possessed; it was third-
party information held by a telephone company. What is that information
the phone companies have always had? It is a phone number. It is a date
and time of a call. It is the duration of a call. It is the number
being called. That is it. That is the sum total of all of the
information in this so-called metadata program. Because that is all the
information, it was completely anonymous. Not only did it not include
any context of any conversation--that was not possible. Conversations
have never been recorded, so the contents have never been captured. But
it also did not contain any identifying information with the phone
numbers. There are no names, no addresses, no financial information.
There is no information that would in any way identify anybody with any
particular number.
So what did the government do with the metadata it had received?
Well, it stored it all in a big database, on a big spreadsheet with all
of those numbers. That is all it was, was a lot of numbers.
When the government discovered a phone number from a known terrorist,
when a group of special ops American forces took down a terrorist group
somewhere and grabbed a cell phone, then the government could conduct a
search of the metadata, but first a Federal judge would have to give
permission.
After running the search to determine whether in that metadata there
had been phone calls between the known terrorists and numbers in that
database, even after doing the search, the government still had no
information identifying the phone number because that is not in the
database. Of course, as I said before, certainly there was no content
because content had never been recorded.
But a link might be established--and if it were to be established, if
Federal investigators discovered that the known terrorist was in
regular phone communications, for instance, with someone in the United
States, then that fact could be turned over to the FBI, and the FBI
could conduct an investigation, which might be a very useful
investigation to have.
Well, we have had a number of officials who have told us how
important this program has been, the intelligence value we have
received. President Obama, himself, explained that had the section 215
metadata program been in place prior to 9/11, the government might have
been able to prevent the attack. Remember, we learned afterward about
our inability to connect the dots. This was a program that was designed
to enable us to connect those dots.
Even the critics of this program--which, as we know, there are many--
have never suggested this program was in any way abused, that any
individual person had their rights violated, that there was any breach.
That case has never been made, not that I have heard. Given the value
of the program--as we have heard from multiple sources--and the
complete absence of any record of any abuse of the program, in my view,
Congress should have reauthorized this program, including section 215.
But, instead, we have passed an alternative, and that is the USA
FREEDOM Act. I voted against this measure today because I am concerned
the USA FREEDOM Act does not provide us with the tools we need at a
time when the risks have been as great as ever. Let me just mention
some of these.
First, under the USA FREEDOM Act, it is entirely possible that the
government may not be able to continue any metadata program at all. I
say that because the bill explicitly forbids the government from
maintaining the database that we have been maintaining and instead the
bill assumes that private phone companies will retain the data, and
then the government will be able to access that data as needed.
But there is a problem with this assumption. The problem is the bill
doesn't require the phone companies to preserve any of this data. Under
the USA FREEDOM Act, the phone companies could destroy the metadata
instantaneously after a phone call occurs.
They have a regulatory obligation to keep billing information, but a
lot of bills are unlimited calls with a single monthly charge. They
have no statutory or regulatory requirement to retain the records of
these calls. As currently practiced, I am not aware of any phone
companies that retain this data for the 5 years our intelligence
officials believe is the necessary timeframe to provide the security
they would like to provide.
[[Page S3448]]
There is another problem, it seems to me, with the USA FREEDOM Act;
that is, it is entirely possible the time period contemplated for
establishing the software that will enable the government to query the
many different private phone company databases--that timeframe will not
be long enough. We don't know whether it is going to be long enough. We
will just find out, I suppose, when the time comes. But this is a
complex exercise that has to be carried out in real time, and the USA
FREEDOM Act simply creates a deadline. It doesn't ensure that we will
have this in place.
A second concern I have is that the USA FREEDOM Act weakens other
intelligence-gathering tools that are unrelated to any of the metadata
programs which have received most of the attention.
So the USA FREEDOM Act gives intelligence officials----
The PRESIDING OFFICER. The Senator from Pennsylvania has used 10
minutes.
There is an order to recognize the Senator from South Dakota.
Mr. TOOMEY. Madam President, I ask unanimous consent for 30 seconds
to wrap up.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TOOMEY. Madam President, I conclude by saying that we are at
least at as great a risk as we have ever been, and the first priority
of the Federal Government of the United States is to protect people of
the United States.
I am deeply concerned that the USA FREEDOM Act diminishes an
important tool for providing for this security, and I hope that in the
coming months we can address this bill and try to correct the many
flaws it has.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Dakota.
____________________
