[Congressional Record Volume 161, Number 80 (Friday, May 22, 2015)]
[Senate]
[Pages S3253-S3255]
TRADE BILL AND BULK DATA PROGRAM
Mr. McCONNELL. Madam President, I am glad the Senate voted yesterday
to take another step forward on the important trade legislation that is
before us. This bill represents an opportunity for Republicans and
Democrats to stand together for the middle class, so I hope our friends
across the aisle will allow us to seize this opportunity. I am
optimistic. We all know that trade is important for American workers
and American jobs. We all know that by passing this legislation, we can
show we are serious about advancing new opportunities for bigger
American paychecks, better American jobs, and a stronger American
economy.
We want to process as many amendments as we can. The Republican and
Democratic bill managers, Senator Hatch and Senator Wyden, have done a
great job managing this bill in a bipartisan spirit thus far. My hope
is that, with some cooperation from across the aisle, we can vote on
some amendments today and complete our work on this trade legislation
today.
I appreciate all the hard work from both sides that got us to the
point we are today. Let's keep the momentum going so we can finally
pass a bill that Republicans, President Obama, and many Democrats all
agree is good for the middle class, good for the economy, and good for
our country.
Let's also move forward in the same spirit to finish our work on the
other two important issues on the Senate's to-do list. I will speak
about one of them in a moment. But the point is, we have to get our
work done, however long it takes. With bipartisan cooperation, we can
get it done as soon as this afternoon.
On the issue I mentioned, following the attacks of September 11, the
United States improved its laws and legal authorities in an effort to
better understand the terrorist threat and, rather than treat it as a
crime to be handled by civilian prosecution, to combat it as a matter
of warfare--not as a crime but as a matter of warfare. But that does
not mean Al Qaeda and its affiliates stood still. The terrorist threat
metastasized under regional affiliates such as Al Qaeda in the Arabian
Peninsula, al-Shabaab, Al Qaeda in Iraq, and AQIM.
We have all seen the advance of the Islamic State in Iraq and the
Levant, which, despite coalition air attacks and Iraqi military ground
operations, actually seized Ramadi last weekend. Although ISIL has
broken from core Al Qaeda, it is emblematic of how the threat continues
to evolve.
Last week, the Director of the FBI explained how ISIL, operating from
safe havens within Syria, is now using social media to radicalize
Americans by making contact through Twitter and then directing them to
encrypted venues. Moreover, through the publication of online
magazines, Al Qaeda and ISIL are able to radicalize recruits and reveal
the tactics needed for small-scale attacks here at home. These tactics,
along with the information gained by terrorist networks from the
unlawful disclosure of classified information by Edward Snowden,
challenge counterterrorism officials in their efforts to detect
terrorist plots and terrorist communications.
This all comes at a moment of elevated threats to the American
people.
Let me read something the L.A. Times recently reported. This is what
the Times had to say:
Alarmed about the growing threat from Islamic State, the
Obama administration has dramatically stepped up warnings of
potential terrorist attacks on American soil after several
years of relative calm.
Behind the scenes, U.S. authorities have raised defenses at
U.S. military bases, put local police forces on alert and
increased surveillance at the nation's airports, railroads,
shopping malls, energy plants and other potential targets.
Driving the unease are FBI arrests of at least 30 Americans
on terrorism-related charges this year in an array of ``lone
wolf'' plots, none successful, but
[[Page S3254]]
nearly all purportedly inspired by Islamic State propaganda
or appeals.
I ask unanimous consent to have the article printed in the Record at
the conclusion of my remarks.
We need to recognize that terrorist tactics and the nature of the
threat have changed and that at a moment of elevated threat, it would
be a mistake to take from our intelligence community any--any--of the
valuable tools needed to build a complete picture of terrorist networks
and their plans, such as the bulk data collection program of section
215. The intelligence community needs these tools to protect us from
these attacks.
I would like to quote the observations that someone intimately
familiar with this program made in the aftermath of the unauthorized
leaks of classified material by Edward Snowden.
``This program does not involve the content of phone calls or the
names of people making calls,'' he said. ``Instead, it provides a
record of phone numbers and the times and lengths of calls, metadata
that can be queried if and when we have a reasonable suspicion that a
particular number is linked to a terrorist organization.''
He then described why the program was necessary.
``The program grew out of a desire to address a gap identified after
9/11,'' he said.
One of the 9/11 hijackers, Khalid A. Mihdhar, made a phone
call from San Diego to a known Al Qaeda safe house in Yemen.
NSA saw that call, but it could not see that the call was
coming from an individual already in the United States. The
telephone metadata program under Section 215 was designed to
map the communications of terrorists, so we can see who they
may be in contact with as quickly as possible.
Let me say that again: ``as quickly as possible.''
This capability could also prove valuable in a crisis. For
example, if a bomb goes off in one of our cities and law
enforcement is racing to determine whether a network is
poised to conduct additional attacks, time is of the essence.
Being able to quickly review telephone connections to assess
whether a network exists is critical to that effort.
He concluded by noting this:
The Review Group turned up no indication that this database
has been intentionally abused.
``[N]o indication that this database has been intentionally abused.''
And I believe it is important that the capability that this
program is designed to meet is preserved.
The person who made those observations I just quoted was President
Obama, and he made them just last year--just last year.
Unfortunately, there is now a huge gap between the capabilities the
President rightly recognized as being necessary for our intelligence
professionals and the legislation he is endorsing today. The untried--
and as of yet, nonexistent--bulk collection system envisioned under
that bill would be slower and more cumbersome than the one that
currently helps keep us safe. At worst, it might not work at all due
to, among many other problems, the lack of a requirement for
telecommunications providers to retain the data to begin with--no
requirement to retain the data.
Last week, the Obama administration briefed Senators on the current
bulk data program under section 215. Senators were impressed with the
safeguards built into the current program, and they were impressed that
there had not been one incident--not one--of abuse of the program. But
many Senators were disturbed by the administration's inability to
answer basic, yet critical, questions about the alternate bulk data
system that would be set up at some point--at some point--under the
legislation the administration now supports. The administration could
not guarantee whether a new system would work as well as the current
system, and the administration could not guarantee whether there would
be much, if any, data available to be analyzed under a new system given
the lack of a data-retention requirement in the legislation.
Despite what the administration told us just last week about its
inability to guarantee that this nonexistent system could even be built
in time, it did an about-face earlier this week--sort of. The
administration had the Director of NSA write that the nonexistent
system could be built in time if--if--the providers cooperated in
building it. And, of course, they are not required to.
The problem, of course, is that the providers have made it abundantly
clear that they will not commit to retaining the data for any period of
time as contemplated by the House-passed bill unless they are legally
required to do so. There is no such requirement in the bill. For
example, one provider said the following: ``[We are] not prepared to
commit to voluntarily retain documents for any particular period of
time pursuant to the proposed USA FREEDOM Act if not otherwise required
by law.''
Far from addressing the concerns many have had about the USA FREEDOM
Act, the administration in its letter only underscored the problem. It
said the only way this nonexistent system could even be built in time
is if the providers cooperate. But the providers have made it
abundantly clear they will not cooperate, and there is nothing--
absolutely nothing--in the bill that would require them to do so.
This is just as cynical as the letter from the Attorney General and
the Director of National Intelligence that assured us they would let us
know about any problems after the current program was replaced with a
nonexistent system. Let me say that again. This is just as cynical as
the letter from the Attorney General and the Director of National
Intelligence that assured us they would let us know about any problems
after the current program was replaced with a nonexistent system. Boy,
that is reassuring.
This is beyond troubling. We should not establish an alternate system
that contains a glaring hole in its ability to function--namely, the
complete absence of any requirement for data retention.
I have begun the legislative process to advance a 60-day extension of
section 215 and the other two authorities that will expire soon. This
extension will allow for the Intelligence Committee to continue its
efforts to produce a compromise bill we can send to the House that does
not destroy an important counterterrorism tool that is needed to
protect American lives.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Los Angeles Times, May 19, 2015]
White House Steps Up Warnings About Terrorism on U.S. Soil
(By Brian Bennett)
Alarmed about the growing threat from Islamic State, the
Obama administration has dramatically stepped up warnings of
potential terrorist attacks on American soil after several
years of relative calm.
Behind the scenes, U.S. authorities have raised defenses at
U.S. military bases, put local police forces on alert and
increased surveillance at the nation's airports, railroads,
shopping malls, energy plants and other potential targets.
Driving the unease are FBI arrests of at least 30 Americans
on terrorism-related charges this year in an array of ``lone
wolf'' plots, none successful, but nearly all purportedly
inspired by Islamic State propaganda or appeals.
The group's leader, Abu Bakr Baghdadi, drove home the
danger in a 34-minute audio recording released online
Thursday. He urged Muslims everywhere to ``migrate to the
Islamic State or fight in his land, wherever that may be.''
The audio was released with translations in English,
French, German, Russian and Turkish, signaling the militants'
increasingly ambitious attempts to draw new recruits--and to
spark violence--around the world.
U.S. officials estimate the Sunni Muslim group has drawn
22,000 foreign fighters to Syria and Iraq, including about
3,700 from Western nations. About 180 Americans have gone, or
tried to go.
U.S. counter-terrorism officials initially viewed Islamic
State as primarily a regional security threat, focused on
expanding and protecting its self-proclaimed Islamist
caliphate in Syria and Iraq, rather than launching attacks
abroad.
But the analysis has shifted sharply as gunmen inspired by
the group, but not controlled or assisted by them, opened
fire at the Parliament in Ottawa; at a cafe in Sydney,
Australia; at a kosher grocery in Paris; and, on May 3, in
Garland, Texas.
In the Texas case, two would-be terrorists apparently
prompted by Islamic State social media messages tried to
shoot their way into a provocative contest for caricatures of
the prophet Muhammad. Both gunmen were shot to death, and no
one else was killed. Islamic State later claimed
responsibility for the assault, the first time it has done so
for an attack on U.S. soil.
James B. Comey, the FBI director, warned this month that
``hundreds, maybe thousands'' of Americans are seeing
recruitment pitches from Islamic State on Facebook, Twitter
and other social media, as well as messages sent to
smartphones of ``disturbed
[[Page S3255]]
people'' who could be pushed to attack U.S. targets.
``It's like the devil sitting on their shoulders saying,
`Kill, kill, kill,' '' Comey told reporters.
The United States has entered a ``new phase, in my view, in
the global terrorist threat,'' Jeh Johnson, director of
Homeland Security, said Friday on MSNBC.
``We have to be concerned about the independent actor, and
the independent actor who is here in the homeland who may
strike with little or no warning,'' he said. ``The nature of
the global terrorist threat has evolved.''
That poses a special challenge for U.S. intelligence and
law enforcement agencies, which spent years desperately
trying to penetrate and understand Al Qaeda's rigid hierarchy
and top-down approach to terrorism.
Now they are struggling to detect and prevent lethal
attacks by individuals--such as the April 2013 bombing of the
Boston Marathon by two Russian-born brothers--with little or
no outside communication or support.
The administration has sought to stiffen homeland defenses,
and intelligence gathering, in response.
This month, U.S. Northern Command boosted security at all
bases in the United States. Officials cited the May 3
shooting in Texas, specific threats against military
personnel and the increasing number of Americans
communicating with Islamic State supporters.
In March, a group calling itself ``Islamic State Hacking
Division'' posted online the names, home addresses and photos
of 100 U.S. troops. The group wrote on Twitter that it was
posting the apparent hit list ``so that our brothers residing
in America can deal with you.''
More armed guards have been deployed at federal buildings
across the country, and Homeland Security officials have
quietly urged more security at privately run facilities and
infrastructure that could be targeted, including shopping
malls, railroads, water treatment facilities and nuclear
power generators.
``Since last summer we have ramped up security at federal
installations across the country, and we have increased our
outreach with critical infrastructure operators,'' a senior
Homeland Security official said in an interview.
Authorities have urged companies to conduct more ``active
shooter'' drills to ``heighten awareness and make sure people
are leaning forward with security protocols,'' he said. The
official was not authorized to publicly discuss internal
communications and security measures.
Defeating Islamic State will take not only the ongoing
military operations in Iraq and Syria, U.S. officials said,
but stronger international efforts to block foreign recruits
from joining and to cut the group's financing networks.
Officials acknowledge they also need better messaging to
counter a barrage of polished videos, social media and
Internet appeals from the militants.
``It's a long-term challenge,'' Brett McGurk, deputy
assistant secretary of State for Near Eastern affairs, told
CNN. ``We have not seen this before. And it's going to take a
very long time to defeat them.''
Still, attacking Western targets is not the group's top
priority, as it was for Osama bin Laden, according to Seth
Jones, a former U.S. counter-terrorism official now with Rand
Corp., the Santa Monica-based think tank. The group is far
more focused on the battleground in Iraq and Syria, and
establishing ties to terrorist groups in Libya, Yemen,
Algeria and elsewhere.
Without a strong hand to help direct and organize attacks
abroad, they are ``likely to be less sophisticated,'' Jones
said. ``You actually need a lot of training to conduct a
Madrid-style attack or a London-style attack. Those kinds of
bombs are hard to put together.''
Most of the 30 Americans arrested this year were suspected
of aiding or trying to join Islamic State. Many were
approached on social media or on chat programs designed for
cellphones.
In March, for example, a 22-year-old Army National Guard
specialist was arrested at Chicago Midway International
Airport as he allegedly attempted to join Islamic State in
Syria. The FBI said he had downloaded military training
manuals to take with him and told an undercover agent he was
prepared to ``bring the flames of war'' to the United States.
That same month, a retired Air Force avionics instrument
specialist was indicted in Brooklyn, N.Y., on suspicion of
trying to travel to Syria to join the group. Prosecutors in
Brooklyn also have charged three other men with seeking to
link up with the militants.
And on Thursday, the FBI arrested a former interpreter for
the U.S. military in Iraq, now a naturalized American
citizen, who had tried to travel to Syria from Texas. In June
he had used Twitter to ``pledge obedience'' to Islamic State.
``As a numbers game, it is pretty easy for ISIS to reach
out to a very large number of people using a very robust
social media presence,'' said J.M. Berger, a nonresident
fellow at the Brookings Institution, using a common acronym
for Islamic State.
``I suspect we should see more plots going forward,'' he
added.
____________________
[Congressional Record Volume 161, Number 80 (Friday, May 22, 2015)]
[Senate]
[Pages S3274-S3289]
USA FREEDOM Act
Mr. LEAHY. Mr. President, I have been having a lot of people ask me
where we are on the USA Freedom Act of 2015, and we actually have a
very interesting, easy choice: We can either pass the bipartisan bill
the House of Representatives passed with a majority of Republicans and
a majority of Democrats voting for it, or we can let the expiring
provisions of the USA PATRIOT Act sunset at the end of the month. Some
may prefer that. I think the House made a number of improvements which
protect our freedoms and protect our security, and that is what we
ought to pass.
Some people have talked about short-term extensions. Well, we could
have a 2-day extension or we could have a 5,000-year extension; we
would be extending something that doesn't exist. The fact is that the
House gave us the USA FREEDOM Act in plenty of time to act upon it, to
amend it if we wanted to, to send it back and go to a conference. But
now the House has adjourned and gone on recess. If we don't vote for
their bill, we will end up at the end of the month with nothing. There
will be nothing to extend. We could feel good about passing an
extension, but we can't extend something that is dead.
I have worked for more than two years with Members of Congress from
both parties and in both Chambers to develop the USA FREEDOM Act of
2015. It is a commonsense, balanced reform bill that protects
Americans' privacy, while also ensuring our national security.
The bill doesn't go nearly as far as the bill I first introduced in
October of 2013 with Congressman Sensenbrenner. It doesn't go as far as
the USA FREEDOM Act that was filibustered last November by Senator
McConnell and others. At that time, the incoming majority leader wanted
to wait and see how it would be with a Republican majority and was able
to rally his Members to delay reform. But we shouldn't delay it any
further. Americans deserve to have their privacy restored and their
national security protected. There should be no more excuses.
In the bill Senator Lee and I have introduced and supported, the USA
FREEDOM Act of 2015--it has not just our support, it has the
administration's support, it has the support of the Director of
National Intelligence, the Attorney General, the FBI Director, a
supermajority of the House of Representatives, the technology industry,
privacy and civil liberties groups, librarians, and the NRA. I mean,
when are we ever going to find all these groups coming together? Well,
they came together because they know the USA FREEDOM Act is a good
bill, and the support for our bill continues to grow.
Just yesterday, national security experts at the conservative
Heritage Foundation concluded that the USA FREEDOM Act ``strikes a
balance between maintaining our national security capabilities and
protecting privacy and civil liberties.'' Why? Because it is a
reasonable and responsible bill. When we get the civil liberties
groups, the NRA, the Heritage Foundation and privacy groups together,
we have something.
I have been here 41 years. I have seen very few pieces of legislation
where these diverse groups come together, and they did because the USA
FREEDOM Act is a responsible and reasonable bill. But even if they
hadn't come together, it is the only option left for any Senator who
wants to avoid a sunset of the surveillance authorities at midnight on
May 31. We won't be in session. The other body won't be in session. The
one thing that will happen is our current authorities will sunset. They
will go away. Wow. Can't you hear the cheers from some of our enemies?
Last year when the current Senate majority leader led the filibuster
of the USA FREEDOM Act, we were told that the Senate needed more time
to consider the issue and that the new Senate would take up the matter
under new leadership. All right. We have known the sunsets were coming
for years. That is why I brought up the bill last year. There has been
nothing done on this urgent matter this year--no public hearings and no
committee markups, unlike the six public hearings I held in the
Judiciary Committee last year.
In contrast, the House leadership has acted responsibly and
decisively. They moved the USA FREEDOM Act of 2015 through the
Judiciary Committee and passed this bipartisan bill overwhelmingly.
We had significant debate on this issue this week. I have heard
Senators across the political spectrum who have spoken at length on the
Senate floor about their views. Most of these Senators have urged us to
reform the government's bulk collection program--which is, of course,
the same way the vast majority of Americans feel. But there have also
been voices urging more surveillance. We have heard the familiar fear-
mongering and demands for a data-retention mandate on the private
telecom companies. Well, I disagree with those Senators who voiced that
perspective, but they have at least been heard.
Unfortunately, the clock has been running. The House worked very
hard, they completed their work, and they left. They are not coming
back until after the surveillance authorities are set to expire. And
the House leadership has made clear that they will not pass an
extension. Even if they were in session and we passed an extension,
they made it very clear to Republican and Democratic leadership that
they will not take it up.
So here is the choice. It is a very simple one. We can let the three
provisions at issue expire--some may like that; frankly, I don't--or we
can pass the bipartisan and bicameral USA FREEDOM Act of 2015.
We all know that the NSA has for years been using section 215 of the
USA PATRIOT Act to sweep up phone
[[Page S3275]]
records of innocent Americans without any connection to terrorism. I am
sure innocent Americans who may be in the Chamber or who are hearing
what we are saying have had their phone records swept up. Well, I don't
think anybody would feel very comfortable with that.
We also know that the NSA used a similar legal theory for years to
collect massive amounts of metadata related to billions of emails sent
to and from innocent Americans--a parent to a child asking, ``how is my
granddaughter's cold coming along?'' or ``How did my grandson do in
school?'' or somebody writing to a friend, back and forth.
The American people oppose this indiscriminate dragnet collection of
their records--not only that, the courts do, too. They found it to be
unlawful. The House of Representatives listened to the American people,
they listened to the courts, and they voted overwhelmingly to end this
program through the USA FREEDOM Act and assumed, of course, that the
Senate would do what the courts have said and what the vast majority of
the American people said.
Last November, when Senator McConnell convinced his caucus to block
the USA FREEDOM Act, I warned that we would not have much time in the
new Congress, and that the American people were demanding action.
People should go back and see the number of letters and emails that
came pouring in to the Capitol saying: We want this passed. Yet, here
we are--Congress racing against the clock to act before the sunsets
take effect next weekend.
Well, this is a manufactured crisis. I think there are some who hope
that enough Senators will be scared by the prospect of these
authorities expiring that they will blindly vote in favor of a clean
extension even though that will go nowhere. We have all seen this movie
before. We know that opponents of the USA FREEDOM Act simply want to
delay again. Well, I don't frighten.
Many Americans, especially my constituents, are wondering what
opponents of the USA FREEDOM Act have been doing for the past six
months? They are rapidly approaching a sunset that has been on the
books for years--the original sunset provision written by myself and
Republican leader Dick Armey. It is not as though this deadline
suddenly snuck up on the leadership or the chairman of the Intelligence
Committee, who is just now considering alternative proposals.
Remember, we are just a few days away from the expiration date. But
despite this urgency and the extensive debate we have been having for
many months, the only bill that has been filed by the opponents of the
USA FREEDOM Act is a 2-month rubberstamp of the USA PATRIOT Act
provisions--a bill the Senate sponsors know cannot pass the House even
if they were in session. And because they are not in session, if we
were to pass it here, it would become a ``nothingburger'' because there
would be no law to extend.
I read in the press that there may be an alternative proposal in the
works. It may include a provision to keep the bulk collection program
in place for more than two years. But even if we could legally pass
that, it is entirely unnecessary.
Just this week, the NSA Director stated in a letter to Leaders
McConnell and Reid that the NSA only needs 180 days to transition to
the new targeted program established by the USA FREEDOM Act. Not 2
years. The 180-day transition has been part of the USA FREEDOM Act for
more than a year. And during all the negotiations about the bill,
neither the NSA nor the intelligence community ever raised a concern
with me about this provision. In fact, we have on the record that they
support it.
I ask unanimous consent to have printed in the Record a copy of the
May 20 letter from Admiral Rogers, the head of NSA.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Security Agency
Fort George G. Meade, MD, May 20 2015.
Hon. Mitch McConnell,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Harry Reid,
Minority Leader, U.S. Senate,
Washington, DC.
Dear Senators McConnell and Reid: The USA Freedom Act would
establish a 180-day period for transitioning from the current
bulk-collection program for telephone metadata to a model
where queries would be carried out against business records
held by telephone service providers. Several questions have
been raised about the feasibility of the 180-day deadline.
Should the USA Freedom Act of 2015 become law, NSA assesses
that the transition of the program to a query at the provider
model is achievable within 180 days, with provider
cooperation. We base this judgment on the analysis that we
have undertaken on how to make this model work. Upon passage
of the law, we will work with the companies that are expected
to be subject to Orders under the law by providing them the
technical details, guidance, and compensation to create a
fully operational query at the provider model. We are aware
of no technical or security reasons why this cannot be tested
and brought on line within the 180-day period.
We very much appreciate the time and attention the Senate
continues to devote to this important issue.
Michael S. Rogers,
Admiral, U.S. Navy, Director,
National Security Agency.
Mr. LEAHY. We all know this last-ditch attempt at further delay is
just too late. We have two options: Pass the USA FREEDOM Act or let the
provisions expire. A growing majority of the Senate--a straight up-or-
down vote--supports the USA FREEDOM Act. If we pass it today, the
President can sign it today or tomorrow.
Also, the intelligence community says: Is the law going to be here or
is the law gone? By passing the USA FREEDOM Act, they can move forward
with the certainty they need to protect the American people.
Senator Lee and I, along with a bipartisan group of Senators ranging
from Senator Durbin, to Senator Heller, to Senator Schumer, to Senator
Cruz--and that is going across the political spectrum--are moving for a
responsible path forward.
We have worked for 2 years on this bill to end the NSA bulk
collection of Americans' phone records. Republicans and Democrats have
worked together for 2 years to end the NSA's bulk collection of
Americans' phone records, something that every one of us, at a townhall
meeting--I do not care what State you are in, if you ask Americans ``Do
you want a bulk collection of all your phone records?'' you know what
the answer would be: ``Of course not.''
The clock has run out, but there is a responsible choice before us.
Let's pass the USA FREEDOM Act today. Then we will have important
reforms, we will keep America secure, and we will not have all of these
authorities expire.
Mr. President, I see other Senators on the floor.
I yield the floor.
The PRESIDING OFFICER. The Senator from Montana.
Mr. TESTER. Mr. President, I ask unanimous consent for Senator Daines
and I to speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Mr. SANDERS. [...]
USA PATRIOT Act
Mr. President, there is another issue I wish to very briefly touch on
as well today. That issue deals with the USA PATRIOT Act and FISA and
civil liberties in this country. Let me make a few basic points.
There is nobody in the Senate, there is nobody in the House who does
not understand that there are terrorist groups out there that want to
attack the United States of America and our allies and that want to do
us harm. There is nobody in the Senate or in the House or, I think, in
the United States of America who does not believe that as a nation we
have to do everything we can to protect the people of our country from
terrorist attacks. There is no debate on that. What the debate is about
is how we protect the American people without undermining the
Constitution of the United States of America or undermining the privacy
rights of the American people.
I think everybody does understand and should understand that modern
technology in all of its forms--from iPhones to a dozen or 100
different ways--has greatly outstripped public policy in terms of
protecting privacy rights. By and large, the privacy rights we have on
the books now were written years and years before the development of
the technologies we see right now.
It is absolutely imperative that as a nation we begin a serious
conversation, which includes some of the most knowledgeable people in
this country--people who know about what technology can do today and
what it can do tomorrow, people who are concerned about civil liberties
and privacy rights, our law enforcement officials, our national
security people, and Members of Congress. What that discussion should
be about is pretty simple: How do we protect our country against
terrorism at the same time that we protect our privacy rights and our
constitutional freedoms.
As we consider whether to reauthorize parts of the PATRIOT Act, we
must take stock of where we are today. It is no secret that NSA
collects vast sums of information and at one point or another has
collected information on virtually every person in this country who
uses a telephone. That is no great secret. Since June 2013, we have
learned that the NSA collects phone call metadata, including the
numbers of both parties, location, time, and duration. They collect
text messages, email chat, and Internet browsing history; smart phone
app data, including Google Maps, which can pinpoint a person's location
to within a few yards. They collect maps of people's social networks,
bank and credit card transactions. This is just the tip of the iceberg.
There is undoubtedly much more being done that we simply don't know
anything about.
Further, local governments and other agencies are also collecting
information about the movements and the habits of law-abiding
Americans. When we drive down the street, there are cameras that can
take pictures of license plates. There are cameras on street corners,
cameras in private buildings. The government knows where we are
traveling and how long we are gone. Let's be clear. While today we are
focusing appropriately on the role of the Federal Government in issues
of civil liberties, we must also understand that
[[Page S3279]]
it is not just the government that is collecting information on law-
abiding Americans. In fact, the private sector's collection of
information is just as intrusive and equally dangerous. Private
companies, private corporations know a whole lot about what we do. Our
every move can be tracked by a smart phone. Almost two-thirds of the
American people, by the way, have smart phones.
Private companies can know what we read, what we are emailing about,
what Web sites we visit. They know when we have purchased a ticket, and
they know where that trip is taking us. They know whether we are going
on a plane or a train or a bus. When we go to a grocery store, our
discount card gets scanned and the grocery store knows exactly what we
are eating. It is the same situation at the pharmacy. They know what
kind of medicine we are buying, enabling people to make judgments about
one's health. They know when a woman is pregnant based on her
purchases. In the name of fitness, people are wearing watches and
Fitbits that record our heart rate and exercise pattern and how much we
sleep.
In the wrong hands, this information could prevent us from getting
health insurance through our jobs. It could even prevent us from
getting hired in the first place. In other words, enormous, enormous,
undreamed of amounts of information are out there and, in the wrong
hands, that could be a real danger to our country and to the lives of
millions of innocent people.
This is what the attack on privacy looks like. Someone can access our
phone calls. They can access our credit card records. They can comb
through our purchases. They can analyze our spending habits. They can
access our emails and our contacts. They can track our movements.
Pretty much anything and everything we do these days can be tracked and
recorded.
Now, many of my colleagues come to the floor of the Senate and talk
about America being a free country. Well, if somebody knows everything
we are doing, maybe it is time to recognize that we are not quite as
free as we think we are. I know that in response to the argument I am
raising, people will say: Well, trust these large corporations; trust
the government. They are honest people. By and large, many of them are.
I am not suggesting otherwise.
In terms of government policy, however, let us not forget that 45
years ago we had a President of the United States named Richard Nixon.
And what Richard Nixon believed was that anything the President of the
United States did, by definition, was legal. The President can break
into his or her opponent's political headquarters--not a problem. He is
the President. He can spy on people--not a problem. He is the
President.
So I ask my colleagues and the American people--and I do not suggest
for one second that this is true of the Obama administration. But I ask
the American people to think about what happens in the future if we
have a President who really does believe that he or she is the law,
that he or she can or should have access to the kinds of information
that are out there. Think about the incredible power the administration
has, the potential for blackmail, the political advantages that
administration has.
People say: Well, it is a pretty crazy idea. It is never going to
happen.
Well, a lot of things have happened that we never thought could
happen.
It seems to me that now is the time for us as a nation, for us as
elected officials to have a very important conversation about how we
balance our need--of which there is no debate--to protect the American
people against terrorist attacks while at the same time we respect the
privacy rights and the constitutional rights of our people and how we
maintain America as a free and open society.
I got involved in this issue a number of years ago when I voted
against the USA PATRIOT Act. I remember some librarians in the State of
Vermont came to me and they said: You know, as a result of section 215
of the USA PATRIOT Act, law enforcement officials--the FBI can come to
a librarian and demand that the librarian provide information about the
books people are borrowing from the library.
Of course, section 215 goes a lot further than that.
Do we want to be a nation in which we are looking over our shoulders
and worrying about the books we are reading because somebody may say:
Oh, well, you are reading a book about Osama bin Laden; clearly, you
must be a terrorist. Is that really the kind of fear we want to see
established in this country?
So I say to my colleagues, it is great to come to the floor and talk
about freedom, but what freedom is about ultimately is the right of
people to do what they want to do in a law-abiding way without harming
other people. That is called freedom. In my view, people have a right
to make a telephone call today without that information being collected
by the government. People have a right to go on the Internet and send
an email with the absolute assurance that as law-abiding citizens their
visits to a Web site or the emails they send will not be tracked by the
government. People have a right to go to a grocery store and make
purchases without somebody knowing what they are buying.
I intend to introduce legislation shortly which will call for a
comprehensive review of data collection by public and private entities
and the impact that data is having on the American people. I don't know
if this is a progressive piece of legislation or a conservative piece
of legislation, but I would hope this concept would have broad support
across the political spectrum from people who actually do believe in a
free society, that our young people should not be worried about the
kinds of books they read or the Web sites they visit.
We must bring together leaders in the technology world, people who
not only know what technology today is doing as far as invading our
privacy rights but what the future holds, because I am quite certain
that every single day, this technology is growing more and more
sophisticated and more and more intrusive, and sitting down with people
who are experts on technology--we have to have civil libertarians,
people who understand what the First Amendment is, what the Fourth
Amendment is, what our Bill of Rights is about, what our Constitution
is about, and, of course, involved in that discussion must be law
enforcement and our security experts. The goal of all of this must be
to create legislation which does everything we can to protect the
safety of the American people but also protects our privacy rights and
our constitutional rights.
I look forward to working with my colleagues on both sides of the
aisle on that legislation.
With that, I yield the floor.
[...]
The PATRIOT Act
Mr. SESSIONS. Mr. President, we will be talking about the PATRIOT Act
and the USA FREEDOM Act that has been offered, and I think it is an
important issue. I believe the PATRIOT Act provides critical tools that
have helped protect America, and I believe it does so without any
infringement on constitutional rights.
Some say we have to compromise rights or balance rights against the
threats. Maybe sometimes we have to do that. But when we wrote the
PATRIOT Act in the Judiciary Committee--of which I am a member, Senator
Leahy is a strong libertarian, Senator Hatch is a strong libertarian,
Senator Hatch was chairman, Senator Leahy was ranking member, I had
been a Federal prosecutor for 15 years; people like Jon Kyl and Dianne
Feinstein and so many others worked on it for months--it wasn't passed
in a few days without thought. People talked about it. It was on the
radio and television, we got letters, we had hearings with professors
and constitutional scholars, law enforcement officers, some public and
some classified briefings, and we tried to write a bill, and I believe
did, that provided the Federal Government an expedited method to access
phone call data, metadata as it is called, under section 215 of the
act.
Now, this data has no content--no phone communications at all. It is
just phone numbers, even less than you get on your telephone bill when
it comes to you in the mail every month. That data is maintained at the
telephone companies in their records. Everybody who makes a phone call
should know that, if they are alert to the world. So that record is not
your personal record. That record is the telephone company's record.
Now, if you have documents at home, if you have records in your desk,
records anywhere in your house, if you have a gun or drugs that are
illegal in your house, nobody can come in your house, they can't go
into your car, can't go into your glove compartment or trunk without a
court order because it is within your custody and you have a right,
under the Fourth Amendment, to be free from an unreasonable search. The
law enforcement officer has to get a court order, backed up by facts,
before they can breach that Fourth Amendment.
Of course, the Fourth Amendment simply says that your right is
against unreasonable search and seizure. It doesn't say the government
can never conduct a search. An unreasonable search and seizure is what
the Constitution talks about. I would say, first and foremost, it is
reasonable the government be able to identify certain matters of
evidence that could prevent a 9/11-type attack on America that could
cause the deaths of thousands of Americans.
So what is it that is provided for under this act? I am raising this
because I think my colleagues have misunderstood it, and they are more
worried about it than they should be. In fact, I think many of their
worries are based on a false understanding of how the system works and
a false understanding of how law enforcement is conducted in America
every day.
So these telephone companies all maintain these records and they are
accessible by law enforcement. And it does not take a court order,
colleagues; it takes a subpoena. A subpoena is an order for production
issued by an entity empowered to issue subpoenas.
The basic standard for a Drug Enforcement Administration agent to get
people's telephone records that are in the possession of a telephone
company is the administrative subpoena. They do not have to go to a
judge, they do not have to go to the U.S. attorney or any Federal
prosecutor. They are empowered if the documents are relevant to an
investigation they are conducting because they are not an individual's
possession; they are the phone company's records. This is done every
day.
Now, oddly, the FBI doesn't have that power. The FBI is the Agency
charged with the responsibility of investigating and stopping terrorist
attacks, but they have never been given this power. They have to issue
their subpoenas simply by calling the Federal prosecutor in the U.S.
attorney's office. I was a U.S. attorney for 12 years, an assistant
U.S. attorney for 2\1/2\. I approved hundreds and hundreds, thousands
of subpoenas.
In almost every major investigation you want telephone toll records.
You are investigating a drug dealer and you capture somebody and he
starts providing evidence. He says: I talked to the main drug dealer.
How many times? Hundreds. Did you use a phone? Yes. So you immediately
subpoena the telephone records. Those come right in, and they can prove
he is telling you the truth. He has made 50 or 100 phone calls to the
main drug dealer. That corroborates his testimony and builds truth and
power in the prosecution's case that this person is indeed a drug
dealer and this witness is telling the truth.
Now, there are all sorts of reasons for getting documents. That is
just one of them, but it is done every day by a subpoena. As I said, a
subpoena does not require a judge's approval.
So this all got stirred up in the PATRIOT Act, and we set up this
procedure with judicial oversight where the phone companies' phone
data--metadata--is simply put in one secure system that is accessible
by the Federal Government. I don't believe that violates any
constitutional rights. It is just a mechanism by which to further the
system. And before they can access it, the FBI, the National Security
Agency, has to have more proof and put out more evidence and go through
more hoops than the drug enforcement agent does to get your telephone
records. Remember, these records have no names. They have nothing but a
telephone number, the date the number was called, and how long the
conversation was.
Nobody is accessing those records for personal gain. Only 30-some
people in the United States have the ability to access this system.
That is the way it works, and so I believe, colleagues, this does not
in any way impact the integrity of the constitutional right to be free
from unreasonable search and seizure under the Constitution.
Somebody may say: Well, they could abuse that. Well, they could abuse
it, that is true. But I have to tell you, I have seen this system. I
have seen the people who operate it. They are not out there trying to
corruptly spy on politicians or anyone else. I don't know how they
could use the system to do that anyway. Anybody who works at the
telephone company can access your telephone toll records now. So how
much security do you have in your telephone toll records, pray tell?
But these people aren't doing that. They are intensely focused. If
they have information connecting a phone number to a foreign terrorist
or terrorist organization and they can see other people have called
that number. They can do some preliminary investigations and if there
is a hit and some information that coincides with other data they have,
they may be able to investigate it. That may lead to other information
that may stop an attack on the United States of America.
These people are not after drug dealers, they are not after bank
cheats, fraudsters or armed robbers; they are
[[Page S3284]]
after terrorists. That is all they are authorized to use the system
for.
I just have difficulty having the words to express how I feel about
this.
So this system can save this country from massive attacks. We know,
and our officials are telling us, there are more threats out there than
before.
A lot of people watch these television programs, these CSI shows and
things, and they get the false impression of the power of the American
Government to conduct surveillance and the extent to which it is
limited. I have worked with FBI agents, DEA and IRS agents. They are
not risking their careers. They are not signing false statements. You
see that sometimes on television. Even the heroes do things that
violate the rules. In my experience, none of the Federal officers I
dealt with violated the rules. If criminals walked, they walked. Even
though they desperately needed some information, the agents do not lie,
defraud or cheat.
I will tell you, these people at the NSA aren't doing that. They are
patriots. They are the best kind of people you want to have serving in
America. So I think this is an exaggerated thing.
I hope, colleagues, we will spend more time identifying and looking
through the challenges we face, the threats we face in America, and
that we will examine this program and be sure we fully understand what
is at stake and the advantages that it brings. The President has given
us examples of what will happen. Director Comey of the FBI said that
losing these authorities would be a big problem as the Agency uses
section 215, the key section, in about 200 cases a year to get records
through the Foreign Intelligence Surveillance Court.
By the way, colleagues, the Internal Revenue Service can issue an
administrative subpoena to get your bank records. I think they have the
power to issue telephone toll records too--but, no, not here in this
system. You have to go through the court process.
We talk about the roving wiretap authority that would expire if we do
not reauthorize these programs. That is used in counterespionage and
counterterrorism investigations and it allows the FBI to conduct
surveillance on a person who may be using a burner phone. In other
words, using a telephone and then throwing it away and switching to a
new phone so they maintain their ability to communicate without
interception.
This is important when you actually do get a warrant that allows a
title III wiretap of a terrorist phone. You get this ability when you
go to court. In the affidavits I have seen--in all 12 years as a U.S.
attorney, I think I had one or two wiretaps approved--they were
hundreds of pages of affidavits. You have to monitor it all. It takes
tremendous time, but if you are after a terrorist, a wiretap can be a
decisive and important matter.
Then, you face the problem of, well, you have a wiretap and it names
the phone and the number of it, but he throws that phone down and picks
up another one. How do you deal with that? So this allows a roving
wiretap and provides a mechanism for a person who changes phones, and
it is consistent with the fundamental principle we use in drug cases
and organized crime cases.
In a Washington Times article published today, the President of the
Law Enforcement Legal Defense Fund and former Assistant Director of the
FBI, Ron Hosko, said:
ISIS is singing a siren song calling people to their death
to crash on the rocks--and it's the rocks that ISIS will take
credit for. They're looking for those who are disaffected,
disconnected and willing to commit murder. So if we're
willing to take away tools, OK, congressman, stand behind
it [and] take the credit by putting the FBI in the dark.
In other words, be sure we will be taking credit for shutting off the
ability of our investigators to protect America.
President Obama said it is indeed helping protect America. Last year,
he said:
The program grew out of a desire to address a gap
identified after 9/11. One of the
9/11 hijackers, Khalid al-Mihdhar, made a phone call from San
Diego to a known al-Qaida safehouse in Yemen. NSA [the
National Security Agency] saw that call, but could not see
that the call was coming from an individual already in the
United States.
They didn't have the legal ability or a system at that time that
could do it.
The President went on to say of the telephone metadata program:
Section 215 was designed to map the communications of
terrorists, so we can see who they may be in contact with as
quickly as possible.
Speed is critical.
The President went on to say:
This capability could also provide valuable information in
a crisis. For example, if a bomb goes off in one of our
cities and law enforcement is racing to determine whether a
network is poised to conduct additional attacks, time is of
the essence. Being able to quickly review telephone
connections to assess whether a network exists is critical to
that effort.
I think the President is right about that. We don't have superhuman
abilities in this country. We don't monitor everybody's phone calls.
There is no way humanly possible Federal agents can do that. But once
they identify someone who is being connected to a terrorist group, they
can at least follow their phone number and whom they may be calling.
Passing the House bill I believe is not the right thing. The bill
would eliminate entirely the database through which our intelligence
analysts are able to quickly access information to connect the dots.
The bill ends these programs. It just does. It ends the metadata
program, replacing it with a nonexistent, untested system. It relies on
the hope that private telephone companies will agree to retain this
data. But these companies have made it clear they will not commit, and
flatly refuse to commit, to retaining this telephone data in their
computer systems for any period of time as contemplated by the House-
passed bill, unless they are legally required to do so--and the bill
does not require them to do so.
One provider said the following:
[We are] not prepared to commit to voluntarily retain
documents for any particular period of time pursuant to the
proposed [House bill] if not otherwise required by law.
The House has refused to put that in.
Colleagues, when I was prosecuting, phone companies kept the data 3
years, some phone companies more. One rural phone company never got rid
of their data. It was amazing how often older phone calls helped
connect the dots, improved facts that are critical in a prosecution.
For example, somebody says: I never called John Jones, and then you
find 50 calls from their phone document to John Jones. These things
have tremendous importance. When we are looking to prevent an attack on
America, trying to produce intelligence to prevent enemy attacks on
this country, just the fact that one individual is calling another
individual who is known to be a terrorist is exceedingly valuable
information. My goodness, maybe it is an innocent call, but it is
worthy of looking at and investigating. That is how investigation work.
That is how crimes are solved. That is how attacks are stopped. One
shred of evidence, one bit can lead to new bits that can lead to more
and more evidence and reveals an entire organization poised to attack
our country.
Let me repeat. I don't believe we have a violation of the
Constitution. I am absolutely convinced the procedures utilized in this
process are utterly consistent with the policies approved by thousands
of court cases nationwide that law enforcement uses on a daily basis to
investigate tax cheats and drug dealers. And we can't use these same
tactics against terrorists who are enemies of the United States and
seek to perhaps blow up and kill thousands of people?
I think this is a mistake. I urge my colleagues to be careful about
it.
Yesterday, we received a letter from the Sergeants Benevolent
Association. It pleads with us to do a short-term extension of the
program: Congress, do your duty. The letter says:
With provisions of the USA PATRIOT Act set to expire in
less than two weeks, the responsible course is to pass a
short-term extension of the expiring authorities--including
section 215. This will allow time for the Senate to undertake
the kind of serious deliberative process critical national
security issues demand and that the American people expect of
``the world's greatest deliberative body.''
I think we are doing that now. That is my opinion. I was present when
the law was drafted, and we tried to be sure we did that and I believe
we did. Some of the concerns are real. A lot of good people are
concerned about it. So I think it is time for us to slow down, go
[[Page S3285]]
back to the basics, lay out this program, see what the complaints are,
and then see if they are justified. If they are, the program will have
to end. But I don't believe it needs to end, and right now we are
heading on a path that will end it.
I thank the Presiding Officer and I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Boozman). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
[Congressional Record Volume 161, Number 80 (Friday, May 22, 2015)]
[Senate]
[Pages S3300-S3301]
USA PATRIOT ACT
Mr. HATCH. Mr. President, today I wish to speak on a critical
national security issue: the importance of renewing the authority for
essential anti-terrorism tools which is set to expire by the time
Congress returns to Washington after Memorial Day.
Every single Member of this body remembers where he or she was on
September 11, 2001. I was here in the Senate. I remember evacuating the
Capitol and the office building. I remember standing on the lawn
outside, wondering if a plane was headed toward this very building.
That terrible day gave us a taste of what terrorists want to visit
upon our country. We realized that these fanatics would stop at nothing
to kill innocent men, women, and children and to bring our country to
its knees.
Knowing the threat this country faced, we resolved not to let
bureaucratic red tape hinder the ability of our law enforcement and
intelligence communities to keep us safe. As the ranking member of the
Judiciary Committee, I joined with colleagues of both parties as well
as the Bush administration to craft the USA PATRIOT Act, which passed
the Senate 98 to 1. The PATRIOT Act and its subsequent reauthorizations
have proven critical to our ability to investigate terrorist threats
and prevent another mass-casualty attack on the homeland.
Let me make one matter perfectly clear: we continue to face a very
serious terrorist threat. The evil that struck us on September 11 has
metastasized and continues to present a clear and present danger to the
national security of the United States. As the American people's
elected representatives, it is our primary duty to keep this country
safe. Accordingly, we must continue to provide the necessary tools to
the law enforcement and intelligence communities that have helped keep
this Nation safe for the past 14 years.
Unfortunately, some of these tools have become quite controversial,
despite the repeated showing of strong bipartisan support for them. The
collection of telephone metadata under section 215 has drawn particular
criticisms and worrisome calls for ``reform.'' I find this development
enormously concerning.
Consider what President Obama himself had to say about our need for
such a capability:
The program grew out of a desire to address a gap
identified after 9/11. One of the 9/11 hijackers, Khalid al-
Mihdhar, made a phone call from San Diego to a known al-Qaeda
safe house in Yemen. NSA saw that call, but it could not see
that the call was coming from an individual already in the
United States. The telephone metadata program under Section
215 was designed to map the communications of terrorists so
we could see who they may be in contact with as quickly as
possible.
The President was absolutely right. The collection of telephone
metadata in bulk facilitates our mapping of terrorist networks and our
ability to disrupt terrorist plots. Contrary to the wild fantasies that
critics frequently spout, this collection does not meaningfully intrude
on our privacy. It does not involve the NSA listening in on anyone's
calls. It is simply a very important means of finding a proverbial
needle in a haystack. We should reauthorize this authority without
delay.
A number of my colleagues have taken a different approach, taking up
the cause of the so-called USA FREEDOM Act to ``reform'' our
counterterrorism efforts. I find the name of this bill ironic, in the
sense that their legislation aims to restore a freedom that was never
under threat while sacrificing critical tools that secure our freedom.
For instance, under this legislation, metadata would no longer be
collected by the government but instead retained by private
communications corporations. While this idea may seem initially
appealing, I have strong reservations about such an approach. Their
proposal contains no requirement for these companies to maintain this
data for any length of time. Without such a requirement, the
effectiveness of a search would obviously be compromised.
This is hardly my only concern. Consider also the provision of the
so-called FREEDOM Act that would create a body of outside experts to
advise the Foreign Intelligence Surveillance Court on the government's
warrant applications. Such an unprecedented move would cause serious
constitutional concerns and could undermine the adversarial system
which at the core of the judicial branch.
[[Page S3301]]
For these and many other reasons, I cannot support the so-called
FREEDOM Act. While I would prefer to pass a long-term extension of our
current authorities, I will support a short-term extension to
facilitate the search for a long-term solution. I urge my colleagues in
both Houses to support this effort.
____________________
[Congressional Record Volume 161, Number 80 (Friday, May 22, 2015)]
[Senate]
[Pages S3302-S3303]
USA PATRIOT ACT
Mr. GRASSLEY. Mr. President, I wish to explain why I support a short-
term reauthorization of the national security authorities that expire
on June 1, and why I will not vote for cloture on the latest version of
the USA FREEDOM Act at this time. These authorities need to be
reauthorized and reformed in a way that appropriately balances national
security with the privacy and civil liberties of all Americans. I am
hopeful that during the next few weeks we can do a better job of doing
just that.
I start with the premise that these are important national security
tools that shouldn't be permitted to expire. If that were to happen,
there is little doubt that the country would be placed at greater risk
of terrorist attack, at a time when we can least afford it. This isn't
exaggeration or hyperbole.
We have recently witnessed the emergence of ISIS, a terrorist
organization that controls large swaths of Iraq and Syria, including,
as of just days ago, the capital of the largest province in Iraq. ISIS
is beheading Americans and burning its captives alive for propaganda
value. And fueled in part by black market oil sales, ISIS reportedly
has at least $2 billion.
The organization isn't just sitting on that money. Members of ISIS
and related groups are actively recruiting would-be terrorists from
around the world to come to Syria. They are inspiring attacks, often
using social media, in the West, from Paris, to Sydney, to Ottawa, and
even here in the United States, in places like New York City, Ohio, and
Garland, TX. Director Comey has reported that the FBI has
investigations of perhaps thousands of people in various stages of
radicalization in all 50 States.
So this isn't the time to let these various authorities expire. This
isn't the time to terminate the government's ability to conduct
electronic surveillance of so-called ``lone wolf' terrorists--people
who are inspired by groups like ISIS but don't have direct contact with
them. And this isn't the time to end the government's ability to seek
roving wiretaps against terrorists. After all, this is a tool that
prosecutors have used in criminal investigations since the mid-1980s.
Most of all, this isn't the time to sunset the government's ability
to acquire records from businesses like hotels, car rental agencies,
and supply
[[Page S3303]]
companies, under section 215, in a targeted fashion. These kinds of
records are routinely obtained by prosecutors in criminal
investigations, though the use of grand jury subpoenas. It makes no
sense for the government to be able to collect these records to
investigate bank fraud, insider trading and public corruption, but not
to help keep the country safe from terrorists.
While we must reauthorize these authorities, however, it is equally
important that we reform them. But we don't yet have a reform bill that
I am satisfied with.
The American people have made clear that they want the government to
stop indiscriminately collecting their telephone metadata in bulk under
section 215. They also want more transparency from the government and
from the private sector about how section 215 and other national
security authorities are being used. They want real reform.
I want to be clear that I emphatically agree with these goals. They
can be achieved responsibly, and doing so will restore an important
measure of trust in our intelligence community.
I agree with these reforms because the civil liberties implications
of the collection of this type of bulk telephone metadata are
concerning. This is especially so, given the scope and nature of the
metadata collected through this program.
Now, there haven't been any cases of this metadata being
intentionally abused for political or other ends. That is good. I
recognize that the overwhelming majority of those who work in the
intelligence community are law-abiding American heroes to whom we owe a
great debt for helping to keep us safe.
But other national security authorities have been abused.
Unfortunately, to paraphrase James Madison, all men aren't angels. I've
been critical, for example, of the Department of Justice's handling of
the so-called LOVEINT cases uncovered by the NSA's Inspector General.
Given human nature, then, the mere potential for abuse makes the
status quo concerning the bulk collection of telephone metadata under
section 215 unsustainable, especially when measured against the real
yet modest intelligence value the program has provided.
The USA FREEDOM Act would in some ways reauthorize and reform section
215 along these lines. It would end the bulk collection of telephone
metadata in 6 months, and transition the program to a system where the
phone companies hold the data for targeted searching by the government.
But the bill's serious flaws cause me to believe that we can do
better. Let me discuss just a few.
First, while the system to which the bill would transition the
program sounds promising, it does not exist at present, and may well
not exist in 6 months. Intelligence community leaders don't know for
sure how long it will take to build. They don't know for sure how fast
it will be able to return search results to the government. They don't
know for sure whether the phone companies will voluntarily keep the
metadata for later searching by the government.
On this score, then, this bill feels like a leap into the dark when
we can least afford it. While we need certainty that the bulk
collection of telephone metadata under section 215 will end, we also
need more certainty that the new system proposed will work and be
effective.
Second, the bill contains reforms to the FISA Court that are unneeded
and risky. I am strongly in favor of reforming the court to make clear
that it can appoint a traditional amicus, or a friend of the court, to
help it get the law right. This is a well understood legal concept.
But this bill goes further--potentially dangerously so. Under certain
circumstances, the bill directs the FISA Court to name a panel of
outside experts who would, in the words of the New York Times,
``challenge the government's pleadings'' before the court.
Especially when the bill already ends the kind of dragnet
intelligence collection under section 215 that affects so many innocent
Americans, this is wholly unnecessary. And for this reason, the
Administrative Office of the U.S. Courts sent a letter alerting
Congress to its concerns that this outside advocate could ``impede the
court's work'' by delaying the process and chilling the government's
candor.
In addition, this proposed advocate is contrary to our legal
traditions, in which judges routinely make similar decisions on an ex
parte basis, hearing only from the government. Mobsters don't get a
public defender when the government seeks to wiretap their phones.
Crooked bankers don't get a public defender when the government seeks a
search warrant for their offices. There is no need to give ISIS a
public defender when the government seeks to spy on its terrorists to
keep the country safe.
Third, the bill also contains language that amends the federal
criminal code to implement a series of important and widely-supported
treaties aimed at preventing nuclear terrorism and proliferation.
However, the bill doesn't authorize the death penalty for nuclear
terrorists. Nor does it permit the government to request authorization
from a judge to wiretap the telephones of these terrorists or allow
those who provide them material support to be prosecuted. These common-
sense provisions were requested by both the Bush and Obama
Administrations, but for unknown reasons they were omitted from the
bill.
In fact, Senator Whitehouse and I have introduced separate
legislation, the Nuclear Terrorism Conventions Implementation and
Safety of Maritime Navigation Act of 2015, which would implement these
treaties with these provisions included.
Recently, I have been heartened that there is a bipartisan group of
members of the Judiciary and Intelligence Committees who share these
and other concerns. We have been discussing an alternative reform bill
that would also end the bulk collection of telephone metadata under
section 215. But it would also do a better job of ensuring that our
national security is still protected.
So I support a short, temporary reauthorization with the hope that an
alternative reform bill can be crafted that addresses the core reform
goals of the American people and that appropriately balances national
security with the privacy and civil liberties of all Americans. There
is work ahead, but it is important that we get this reform right.
____________________
[Congressional Record Volume 161, Number 80 (Friday, May 22, 2015)]
[Senate]
[Pages S3303-S3304]
USA FREEDOM ACT
Mrs. FEINSTEIN. Mr. President, I rise today to discuss the votes the
Senate will soon take relating to three expiring provisions in the
Foreign Intelligence Surveillance Act.
I will vote to support the USA FREEDOM Act, the bill passed by the
House last week by a vote of 338 to 88, and strongly urge my colleagues
to do the same. In my view, this is the only action that we can take
right now that will prevent important intelligence authorities from
expiring at the end of next week.
Let me describe the situation in a little more detail.
On Monday morning at 12:01 a.m. on June 1, three separate sections of
the Foreign Intelligence Surveillance Act, or FISA, will expire. Two of
those provisions were first added to FISA in 2001 in the USA PATRIOT
Act, shortly after the terrorist attacks of September 11. They are the
business records section, also known as section 215, and the roving
wiretap provision.
The business records provision was originally intended to allow the
government to go to the FISA Court to get an order to be able to obtain
a variety of records relevant to an investigation. The authority was,
and remains, very important for the FBI.
Since 2006, the business records authority in FISA has also been used
by the NSA to get telephone metadata records from telephone companies--
the records of the telephone numbers and the time and duration of a
call. Metadata does not include the content or the location or names of
the individuals on the phone.
The roving wiretap provision allows the government to use
surveillance authorities under FISA, pursuant to a court order, against
an individual who seeks to evade surveillance by switching
communication devices. If a terrorist gets a new cell phone or changes
an email address, the government can continue surveillance on that
individual under the same probable cause
[[Page S3304]]
warrant from the FISA court rather than having to go back to the Court
for authority to collect information from each new phone number or
email address.
The third provision, the so-called ``lone wolf'' provision, was added
in 2004 over concern that the intelligence community may not be able to
gather information on a known terrorist if it could not demonstrate his
membership in a specific terrorist group. Given the threat we face
today from individuals inspired by ISIL, for example, that threat is
even more real today than it was a decade ago.
These provisions have been reviewed by the Intelligence and the
Judiciary Committees for many years and have been subject to enormous
public scrutiny.
For more than a year, there has been a strong desire by the American
public, supported by the President and by the House of Representatives,
to make a basic change in the use of the business records authority.
That change is to end the bulk collection of phone records by the NSA
and to replace it with a system for the government to get a FISA Court
order to be able to obtain a much more specific set of records from the
telecommunications providers when there is a ``reasonable, articulable
suspicion'' that a phone number is associated with a foreign terrorist
group.
The Director of National Intelligence and the Attorney General have
written to the Senate to indicate their support for this change, which
they state ``preserves essential operational capabilities of the
telephone metadata program and enhances other intelligence capabilities
needed to protect our nation and its partners.''
I would also note that the USA FREEDOM Act will allow private
companies that receive requests and orders from the government to
produce information, at their own discretion, that allows them to be
more transparent about those requests and orders from the government. I
support this additional transparency and thank the sponsors of the USA
FREEDOM legislation for including it.
I have spoken to a number of technology companies, including several
founded and based in California, that believe that transparency is not
only good policy but that it will help them show publicly that their
products and services are secure and independent from government
control.
So the choice before the Senate today is a clear one: whether to vote
for the only sure way to continue the use of important intelligence
authorities in a way that has the support of the American people, the
President, the intelligence community, and the Department of Justice or
to hope that the authorities will be renewed for 2 months despite clear
communications from the House that it will not support such an
extension.
FBI Director Comey said earlier this week that the expiration of the
business records and roving wiretap authorities would be a ``huge
problem,'' and I believe him.
Given the wide range of threats facing Americans, both at home and
abroad--particularly from ISIL and Al Qaeda--we should not allow these
valuable authorities to expire.
To me, this is an easy choice, and I will support the USA FREEDOM
Act.
Mr. BROWN. Mr. President, I ask unanimous consent to engage in a
colloquy with Senator Cornyn and Senator Leahy, ranking member of the
Judiciary Committee, regarding important aspects of S. 337, the FOIA
Improvement Act of 2015, that could affect the essential work of our
financial regulators.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
[Congressional Record Volume 161, Number 81 (Saturday, May 23, 2015)]
[Senate]
[Pages S3313-S3314]
CLOTURE MOTION
The ACTING PRESIDENT pro tempore. 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 the motion to
proceed to 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 devises, and use other forms of
information gathering for foreign intelligence,
counterterrorism, and criminal purposes, and for other
purposes.
Mitch McConnell, Lamar Alexander, Michael B. Enzi, David
Vitter, John Cornyn, Johnny Isakson, Lisa Murkowski,
John Barrasso, Richard Burr, Pat Roberts, Roy Blunt,
Bob Corker, Orrin G. Hatch, Jerry Moran, Patrick J.
Toomey, Mike Lee, Ted Cruz.
The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to 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 legislative clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Wyoming (Mr. Enzi).
The ACTING OFFICER pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The yeas and nays resulted--yeas 57, nays 42, as follows:
[[Page S3314]]
[Rollcall Vote No. 194 Leg.]
YEAS--57
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cruz
Daines
Donnelly
Durbin
Feinstein
Flake
Franken
Gardner
Gillibrand
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Johnson
Kaine
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Peters
Reed
Reid
Sanders
Schatz
Schumer
Scott
Shaheen
Stabenow
Sullivan
Tester
Udall
Warner
Warren
Whitehouse
Wyden
NAYS--42
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Ernst
Fischer
Graham
Grassley
Hatch
Inhofe
Isakson
King
Kirk
McCain
McConnell
Moran
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Sessions
Shelby
Thune
Tillis
Toomey
Vitter
Wicker
NOT VOTING--1
Enzi
The ACTING PRESIDENT pro tempore. On this vote, the yeas are 57, the
nays are 42.
Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
The majority leader.
Mr. McCONNELL. Mr. President, I enter a motion to reconsider the
vote.
The ACTING PRESIDENT pro tempore. The motion is entered.
Mr. McCONNELL. Mr. President, the Senate has demonstrated that the
House-passed bill lacks the support of 60 Senators. I would urge a
``yes'' vote on the 2-month extension. Senator Burr, the chairman of
the Intelligence Committee, and Senator Feinstein, the ranking member,
as we all know, have been working on a proposal that they think would
improve the version that the Senate has not accepted that the House
sent over. It would allow the committee to work on this bill, refine
it, and bring it before us for consideration. So the 2-month extension,
it strikes me, would be in the best interest of getting an outcome that
is acceptable to both the Senate and the House and hopefully the
President.
Mrs. BOXER. Mr. President.
Mr. McCONNELL. So I would urge a ``yes'' vote.
The ACTING PRESIDENT pro tempore. The Senator from California.
____________________
[Congressional Record Volume 161, Number 81 (Saturday, May 23, 2015)]
[Senate]
[Page S3314]
CLOTURE MOTION
The ACTING PRESIDENT pro tempore. Pursuant to rule XXII, the Chair
lays before the Senate the pending cloture motion, which the clerk will
state.
The 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 the motion to
proceed to S. 1357, a bill to extend authority relating to
roving surveillance, access to business records, and
individual terrorists as agents of foreign powers under the
Foreign Intelligence Surveillance Act of 1978 until July 31,
2015, and for other purposes.
Mitch McConnell, John Cornyn, Daniel Coats, Thom Tillis,
Mike Rounds, Pat Roberts, Richard Burr, John Barrasso,
Tom Cotton, Shelley Moore Capito, David Perdue, Lamar
Alexander, Michael B. Enzi, David Vitter, Johnny
Isakson, Roy Blunt.
The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S. 1357, a bill to extend authority relating to
roving surveillance, access to business records, and individual
terrorists as agents of foreign powers under the Foreign Intelligence
Surveillance Act of 1978 until July 31, 2015, 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 Senator is necessarily absent: the Senator
from Wyoming (Mr. Enzi).
The PRESIDING OFFICER (Mr. Sullivan). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 45, nays 54, as follows:
[Rollcall Vote No. 195 Leg.]
YEAS--45
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Donnelly
Ernst
Fischer
Flake
Graham
Grassley
Hatch
Hoeven
Inhofe
Isakson
Johnson
Kirk
Lankford
McCain
Nelson
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Sessions
Shelby
Sullivan
Thune
Tillis
Toomey
Vitter
Wicker
NAYS--54
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Crapo
Cruz
Daines
Durbin
Feinstein
Franken
Gardner
Gillibrand
Heinrich
Heitkamp
Heller
Hirono
Kaine
King
Klobuchar
Leahy
Lee
Manchin
Markey
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Paul
Peters
Reed
Reid
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Warner
Warren
Whitehouse
Wyden
NOT VOTING--1
Enzi
The PRESIDING OFFICER. On this vote, the yeas are 45, the nays are
54.
Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
The majority leader.
Mr. McCONNELL. Mr. President, I would say to my colleagues that it is
clear there aren't 60 votes in the Senate for the House-passed bill,
and there aren't 60 votes for a 60-day extension.
So I am going to propound a series of unanimous consent requests to
see if we can avoid having the program expire roughly 1 week from now.
____________________
[Congressional Record Volume 161, Number 81 (Saturday, May 23, 2015)]
[Senate]
[Page S3314]
UNANIMOUS CONSENT REQUEST--H.R. 2048
Mrs. BOXER. Mr. President, I ask unanimous consent that since a
strong bipartisan majority of the Senate voted to invoke cloture on the
motion to proceed to the USA FREEDOM Act, that the motion to proceed be
agreed to, that the bill then be read a third time, and the Senate vote
on passage of the USA FREEDOM Act.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. BURR. Objection.
The ACTING PRESIDENT pro tempore. Objection is heard.
Mrs. BOXER. Mr. President, let's be clear what happened here. We
tried with the majority----
Mr. McCONNELL. Regular order.
Mr. BURR. Regular order.
Mrs. BOXER. To protect this country, and the Republicans objected.
Let's be clear.
The ACTING PRESIDENT pro tempore. Regular order has been called for.
Debate is not in order.
Mrs. FEINSTEIN addressed the Chair.
The ACTING PRESIDENT pro tempore. Debate is not in order.
Mrs. FEINSTEIN. Mr. President, if I may a point of personal
privilege.
Mr. President, I would like to correct the majority leader,
regretfully. I did not support the Burr bill. I do not believe that is
the way to go. I have taken a good look at this. For those who want
reform and want to prevent the government from holding the data, the
FREEDOM Act is the only way to do it. The House has passed it. The
President wants it. All of the intelligence personnel have agreed to
it, and I think not to pass that bill is really to throw the whole
program--that whole section 215 as well as the whole business records,
the ``lone wolf,'' the roving wiretaps--into serious legal jeopardy.
Mr. McCONNELL. Regular order, Mr. President.
The ACTING PRESIDENT pro tempore. Regular order.
____________________
