[Congressional Record Volume 162, Number 100 (Wednesday, June 22, 2016)]
[Senate]
[Pages S4433-S4456]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT,
2016
[...]
Amendment No. 4787
Mr. LEAHY. Mr. President, as a member of the Appropriations
Committee, I am concerned about a pending amendment, McCain amendment
No. 4787.
We had a series of votes earlier this week on sensible gun safety
measures. We know by all the polling that the overwhelming majority of
Americans supported these measures, but they were blocked by Senate
Republicans.
Now it appears the Republican leadership wants to change the subject.
They are resorting to scare tactics to divert the attention of the
American people from their failure to act in response to mass
shootings. Let's be clear about what we need to stay safe. We need
universal background checks for firearms purchases and we need to give
the FBI the authority to deny guns to terrorist suspects.
Senate Republicans rejected those commonsense measures earlier this
week, but we still have the chance to give law enforcement real and
effective tools. We should strengthen our laws to make it easier to
prosecute firearms traffickers and straw purchasers.
I am a gun owner. I know if I go in to buy a gun in Vermont--even
though the gun store owner has known me most of their life--I have to
go through a background check. But you can have somebody who has
restraining orders against them, warrants outstanding against them, or
who could have been convicted of heinous crimes, and they can walk into
a gun show, with no background check, and buy anything they want.
We also know they can go and buy all kinds of weapons to sell at a
great profit to criminal gangs that couldn't buy them otherwise, and of
course to those who are going to commit acts of terrorism and hate
crimes.
[[Page S4435]]
We also need to fund the FBI and the Justice Department so they have
the resources to combat acts of terrorism and hate. Those are the
elements of the amendment that Senators Mikulski, Baldwin, Nelson and I
filed yesterday.
In contrast, Republicans are proposing to reduce independent
oversight of FBI investigations, and make permanent a law that as of
last year had never been used. The McCain amendment would eliminate the
requirement for a court order when the FBI wants to obtain detailed
information about Americans' Internet activities in national security
investigations.
You can almost hear J. Edgar Hoover, who loved to be able to spy on
any American he didn't like, asking: Why didn't I have that when I was
the head of the FBI?
The McCain amendment could cover Web sites Americans have visited;
extensive information on who Americans communicate with through email,
chat, and text messages; and where and when Americans log onto the
Internet and into social media accounts. Over time, this information
would provide highly revealing details about Americans' personal lives,
Americans who are totally innocent of any kind of criminal activity,
and they get all of this without prior court approval.
That is why this amendment is opposed by major technology companies
and privacy groups across the political spectrum, from FreedomWorks to
Google, to the ACLU.
Senator Cornyn and others have argued that we cannot prevent people
on the terrorist watch list from obtaining firearms without due process
and judicial review. Yet at the same time they are proposing to remove
judicial approval when the FBI wants to find out what Web sites
Americans are visiting. The FBI already has the authority to obtain
this information if it obtains a court order under section 215 of the
USA PATRIOT Act.
None of us would feel comfortable if the FBI or any law enforcement
agency could just walk into our home, rifle through our desks, and go
through the notes of whom we have called or whom we have talked to. But
they are saying because we have done it electronically and through the
Internet, we ought to be able to just ignore any right of privacy and
go into it.
So rather than trying to distract us from their opposition to
commonsense gun measures, such as their opposition to requiring
somebody who has criminal indictments pending against them from being
able to go to a gun show and buy guns, Republicans should support
actions that will help protect us, such as those in the amendment filed
by Senators Mikulski, Baldwin, Nelson, and myself.
Instead of kowtowing to a very well-organized special interest
lobbying group, why not listen to the lobby of the American people and
do what Americans want. I hope Senators will oppose the McCain
amendment. I hope they will support measures that will actually help
keep our country safe.
Mr. President, I yield the floor to the distinguished Senator from
Oregon.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I thank my colleague. He and I have worked
on this. He is really outlining the hypocrisy behind what has been
going on over the past few days.
Mr. President, due process ought to apply as it relates to guns, but
due process wouldn't apply as it relates to the Internet activity of
millions of Americans. My view is that the country wants policies that
promote safety and liberty. Increasingly, we are getting policies that
do not do much of either. Supporters of this amendment, the McCain
amendment, have suggested that Americans need to choose between
protecting their security and protecting their constitutional right to
privacy.
The fact is, this amendment doesn't improve either. What it does is,
it gives an FBI field office new authority to administratively scoop up
Americans' digital records, their email and chat records, their text
message logs, Web-browsing history, and certain types of location
information without ever going to a judge.
The reason this is unnecessary--and it is something I believe in very
strongly and worked hard for it in the FREEDOM Act--there is a very
specific section in the FREEDOM Act, which I worked for and authored in
a separate effort in 2013, that allows the FBI to demand all of these
records--all of the records I described--in an emergency and then go
get court approval after the fact. So unless you are opposed to court
oversight, even after the fact, there is no reason to support this
amendment.
The FBI has not, in any way, suggested that having this authority
would have stopped the San Bernardino attack or the massacre at an LGBT
nightclub in Orlando. That is because there is no reason to think that
is the case.
The Founding Fathers wrote the Fourth Amendment to the Constitution
for a good reason. We can protect security and liberty. We can have
both. Somehow, the sponsors of the McCain amendment have said: You can
really only have one or the other.
Mr. President and colleagues, the other argument that was made
yesterday--some have said, we have to have this amendment because it
will just fix a typo in the law. That is not true. I urge colleagues to
take a look at the record on this. The record makes it clear that this
provision was carefully circumscribed, was narrowly drawn. The notion
that this is some sort of typo simply doesn't hold water.
The fact is, the Bush administration--hardly an administration that
was soft on terror--said this was not needed, this was not something
they would support; that the national security letter statute ought to
be interpreted narrowly just the way the authors in 1993 envisioned.
I see my friend, the distinguished chair of the Intelligence
Committee. I know we are going to hear how this is absolutely pivotal
in order to protect the security of the American people. I will recap.
No. 1, never once has the FBI suggested this would have prevented
Orlando; No. 2, in the face of an emergency under the legislation I
authored, the government, in an Orlando or San Bernardino issue, can go
get the records immediately and then after the fact settle up; No. 3,
this was not a typo. This was what the authors had suggested; No. 4,
the Bush administration, hardly soft on terror, didn't believe what
this amendment was all about was necessary. This is an amendment that
would undermine fundamental American rights without making our country
safer.
In my view, undermining the role of judicial oversight, particularly
when it doesn't make the country safer and we have a specific statutory
provision for emergencies to protect the American people, this
amendment defies common sense.
I hope my colleagues will oppose it. I urge my colleagues to do so. I
think it is going to be very hard to explain to the American people how
an approach like the one behind this amendment, that would allow any
FBI field office to issue an administrative subpoena for email and chat
records, text message logs, web-browsing history, location
information--that you ought to be able to do it without judicial
oversight, when you have a specific law that says government has the
right to move quickly in an emergency. I think it is going to be pretty
hard to explain to the American people how you are going to have an
arrangement like this that does not make us safer and certainly
jeopardizes our liberties.
I am for both, and this amendment doesn't do much of either.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. BURR. Mr. President, as I grew up, I remember listening daily to
Paul Harvey on the radio. Paul Harvey's motto was, ``and now the rest
of the story.''
That is where we are. I give Senator Wyden a tremendous amount of
credit for consistency. He is consistently against providing the tools
that law enforcement needs to defend the American people. That is fine,
if that is your position, but let's talk about fact.
This statute was changed in 1993, and in one subpart of that
legislation, it was not carried over about the ISP--Internet service
provider--responsibility to provide this information when requested by
law enforcement.
From 1993 until 2010, every technology company, when requested by the
FBI, continued to provide this information. This is not a new
expansion.
[[Page S4436]]
It is clearly something that continued from 1993 until 2010, 6 years
ago, when all of a sudden a tech company looked at it and said: Boy, it
is in this subpart, but it doesn't state it in that subpart so we are
not going to provide it for you anymore.
Myth: We have never asked for this. We have never had this.
No, we have had it for a long time, and until 2010, every company
supplied it to the Federal Bureau of Investigation. All of a sudden,
one company's general counsel said: We don't see it in this subpart;
therefore, we are not bound to provide that for you.
We are either going to fight terrorism and prosecute criminals or we
are not going to do it. We can take away every tool because we use this
excuse that technology now forbids us from accessing information.
Let me say about this, we get no content. To get content, you have to
go to a judge on a bench, and that judge has to give you permission to
actually read the content. We are talking about addresses, locations,
times that, in the case of reconstruction or in the case of trying to
prevent an attack, could be crucial.
The one fact I heard from my colleague from Oregon is that this
wouldn't have stopped San Bernardino or Orlando. He is 100 percent
correct. But I hope there is no legislation we are considering in the
Senate that is about a single incident. This is about a framework of
tools law enforcement can use today, tomorrow, and into the future; it
is not about looking back and saying: But it didn't exist here.
Let me just explain what happens if, in fact, this inadvertent change
isn't made. It means the FBI goes from a 1-day process of getting this
vital information to over a month. To go to the FISA Court and get
approval to seek the information--over a month. If it had to do with a
terrorist attack, boy, I hope the American people are comfortable with
saying: As long as the FBI figures this out a month in advance, then we
are OK. But when you look at the MO of attacks around the world, in
most cases, we had no notice. In most cases, maybe another thread of
information might have given us the preventive time we needed.
In many cases, connecting the dots is also a matter of time. Director
Comey came and had a session with all Members of the Senate last week.
His comment about expediting this information into the public domain
was because he wanted to assure the American people that they had
reviewed as much as they could to certify that there was not another
cell, that the American people could sleep safe that night. Well, this
is part of that process--being able to access the information you need
in a timely fashion.
You know something he forgot to say is that this is the Obama
administration's language. We can talk all we want to about Bush or
Clinton or whatever; this is the Obama administration--the one that has
the responsibility today to keep the American people safe. It is the
administration that has come to the Senate, provided the language, and
asked for this clarification to be made because it was inadvertently
left out in 1993.
So we are here today to fix something that is broken, not to expand
in any way, shape, or form the powers or to intrude into privacy,
because there is no content collected. This is simply to provide law
enforcement with tools that enable them to fulfill their mission, which
is to keep America safe.
In addition to the ECTA fix, let me say there is a lone-wolf
provision that extends the lone wolf permanently. The lone wolf
provision provides the government's ability to target non-U.S.
persons--foreigners only--who engage or attempt to engage in
international terrorism but do not show specific links to a foreign
power or terrorist organization to be under the lone-wolf provision. It
is too important to let it expire.
This provision is not about addressing or responding to a single
specific threat--particularly one that has already manifested itself--
any more than the underlying bill is. I urge my colleagues to support
this legislation. The American people need it, law enforcement needs
it, and the Obama administration wants it. It is what we operated under
from an understanding from 1993 until 2010, when a general counsel in
one company decided to buck the system and say: Spell it out for me or
we are not going to do it. Let's spell it out for them and give law
enforcement this tool.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, how much time remains?
The PRESIDING OFFICER. Ten minutes remains.
Mr. McCAIN. I won't take the entire 10 minutes. I notice the Senator
from Oregon, and I would be glad to yield to him 3 minutes of the 10
minutes remaining so he can speak in his usual articulate fashion.
Mr. WYDEN. I thank my colleague for the time.
Mr. McCAIN. I yield 3 minutes of my 10 minutes to the Senator from
Oregon.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I want to come back again to the argument I
made earlier. The Senator from North Carolina said the FBI would have
to wait around if there was something that really had the well-being of
the American people at stake. That is simply inaccurate. In the USA
FREEDOM Act, I was able to add a provision I feel very strongly about,
which says if the FBI thinks the security and well-being of the
American people are on the line, the FBI can move immediately to
collect all the information we have been talking about. So there is no
waiting. There is no dawdling under the amendment we put in the FREEDOM
Act. The government can go get that information immediately and come
back and then settle up later with the judge. Frankly, that was
something I felt extremely strongly about because I wanted it
understood that there is not a debate about privacy versus security.
This is about ensuring that we have both, and that is why that
emergency provision is so important.
My colleague made mention of the fact that the FBI would be waiting
around if the country's safety and well-being were on the line. No
way--not because of the specific language in the USA FREEDOM Act I
offered and my colleague supported. This is about ensuring that the
American people can have both security and liberty.
We have heard the lone-wolf provision referred to. That was extended
for 4 years in the USA FREEDOM Act. I supported that as well.
So what we are talking about today is not making the country safer
but threatening our liberty. And I did draw a contrast between this and
the issue with respect to guns. Our colleagues said we ought to have
due process as it relates to guns. I certainly support the idea of due
process, but it shouldn't be a double standard--we are going to have
due process there, and we are not going to have due process as it
relates to these national security letters.
The PRESIDING OFFICER. The Senator has used 3 minutes.
Mr. WYDEN. If I could have 10 additional seconds, and I appreciate my
colleague's courtesy.
Mr. McCAIN. Certainly.
Mr. WYDEN. The amendment gives the FBI field office authority to
scoop up all this digital material without judicial oversight. That is
a mistake.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, obviously I urge my colleagues to support
this amendment. I thank the distinguished chairman of the Select
Committee on Intelligence, who knows as much about this issue as any
Member of Congress or anyone else, and I appreciate the great job he is
doing and his important remarks.
Look, this is pretty simple. The amendment has the support of the
National Fraternal Order of Police; the Federal Law Enforcement
Agencies Association, which is the largest national professional law
enforcement association; and the Federal Bureau of Investigation Agents
Association. Literally every law enforcement agency in America supports
this amendment so they can do their job and defend America.
Ronald Reagan used to say that facts are stubborn things. The fact
is, according to the Director of the CIA, according to the Director of
National Intelligence, right now Baghdadi, in Raqqa, is calling people
in and saying: Get on this. Get on this and get back to the United
States or Europe and contact us then and we will attack.
[[Page S4437]]
There will be more attacks, according to both the Director of the CIA
and the Director of National Intelligence.
Right now there are, unfortunately, young people in this country who
are self-radicalizing. And what vehicle is doing the self-
radicalization? It is the Internet.
We are not asking for content here; we are just asking for usage, the
same way we can do with financial records, the same way we can do with
telephone records. This is an important tool.
How could anyone--and I say this with great respect for the Senator
from Oregon. He is a passionate and articulate advocate for what he
believes in, and he has my respect and friendship. But I ask, in all
due respect, after the events of the last few days, when we know that
attacker was self-radicalized--and what did he use for it? He used the
Internet.
I don't know if that attack could have been prevented, but I know
that attacks can be prevented because that is the view of the chairman
of the Select Committee on Intelligence, the Director of the Federal
Bureau of Investigation, the Director of the CIA, and the Director of
National Intelligence, who are not interested in taking away our
liberties but are interested in carrying out their fundamental
responsibilities, which happen to be to protect this Nation.
So all I can say to my colleagues is that we need to protect the
rights of all of our citizens. We can't intrude in their lives. This
constant tension will go on between the right of privacy and national
security, and I think there are gray areas we need to debate and come
to agreement on finally over time, but this issue is, honestly, a no-
brainer.
When the Director of the Federal Bureau of Investigation, who is
probably one of the most respected individuals in America, admired and
respected by all of us, is saying this is one of his highest priorities
in order to protect America, then I think we should listen to him. When
the Director of the CIA says they are planning further attacks on the
United States of America and Europe, we should give them the tools they
need to prevent that. When the Director of National Intelligence
testifies before the Committee on Armed Services that there will be
further attacks, shouldn't we give them this rudimentary tool, which,
according to the chairman of the Select Committee on Intelligence, was
basically an oversight? Shouldn't we correct that, and can't we protect
the rights of every individual and every American and still enact this
really modest change, which, although in some ways modest, according to
the Director of the FBI, is of his highest priorities?
So let's listen. Let's listen to those whom we entrust our Nation's
security to after going through the confirmation process and the
approval or disapproval of the Members of this body, who are then
entrusted with the solemn obligation of defending this Nation. They are
saying unanimously that they need this authority in order to carry out
their responsibilities.
Mr. President, we are going to vote here in a couple of minutes, and
I would urge my colleagues to respect the views--maybe not mine, maybe
not the chairman of the Select Committee on Intelligence, but let's
respect the views of those who are entrusted with defending this
Nation. I believe we should give them this authority.
This debate will go on, I say to my friend from Oregon. There will be
other areas where there is tension between the right of every citizen
to privacy and the requirement to defend this Nation because we are
facing a challenge the likes of which we have never seen before, and
that is this whole thing of self-radicalization and people who are
sneaking into this country to commit acts of terror, which has the
entire American public concerned--San Bernardino, Orlando.
I hope the Senator from Oregon and those who will vote no on this
amendment understand that in the view of the experts on terrorism in
this world--absolutely are convinced there will be further attacks.
Shouldn't we give them this fundamental tool, this basic tool they have
asked for? I believe they respect all Americans' right to privacy as
well.
I urge my colleagues to vote aye on this amendment, and then we can
move on to other ways to help our enforcement agencies and our
intelligence agencies defend this Nation against this threat, which is
not going away.
Mr. President, I believe my time has expired.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. HEINRICH. Mr. President, has all the time expired?
The PRESIDING OFFICER. All time has expired.
Mr. HEINRICH. I ask unanimous consent to speak for 2 minutes.
Mr. McCAIN. I object.
The PRESIDING OFFICER. Objection is heard.
Cloture Motion
Pursuant to rule XXII, the Chair lays before the Senate the pending
cloture motion, which the clerk will state.
The bill 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 Senate amendment
No. 4787 to amendment No. 4685 to Calendar No. 120, H.R.
2578, an act making appropriations for the Departments of
Commerce and Justice, Science, and Related Agencies for the
fiscal year ending September 30, 2016, and for other
purposes.
Mitch McConnell, Chuck Grassley, Orrin G. Hatch, John
Thune, Thad Cochran, Marco Rubio, Tom Cotton, Richard
Burr, Pat Roberts, Thom Tillis, Mike Rounds, John
Cornyn, John Barrasso, Deb Fischer, Cory Gardner,
Shelley Moore Capito, Johnny Isakson.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on
amendment No. 4787, offered by the Senator from Kentucky for the
Senator from Arizona, to amendment No. 4685 to H.R. 2578, shall be
brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The bill clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Idaho (Mr. Crapo).
Mr. DURBIN. I announce that the Senator from Indiana (Mr. Donnelly),
the Senator from California (Mrs. Feinstein), and the Senator from New
Jersey (Mr. Menendez) are necessarily absent.
The PRESIDING OFFICER (Mr. Sullivan). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 58, nays 38, as follows:
[Rollcall Vote No. 108 Leg.]
YEAS--58
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Casey
Cassidy
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Cruz
Enzi
Ernst
Fischer
Flake
Graham
Grassley
Hatch
Heitkamp
Hoeven
Inhofe
Isakson
Johnson
King
Kirk
Klobuchar
Lankford
Manchin
McCain
McCaskill
Mikulski
Moran
Nelson
Perdue
Portman
Reed
Reid
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Sessions
Shelby
Sullivan
Thune
Tillis
Toomey
Vitter
Warner
Whitehouse
Wicker
NAYS--38
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Coons
Daines
Durbin
Franken
Gardner
Gillibrand
Heinrich
Heller
Hirono
Kaine
Leahy
Lee
Markey
McConnell
Merkley
Murkowski
Murphy
Murray
Paul
Peters
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Warren
Wyden
NOT VOTING--4
Crapo
Donnelly
Feinstein
Menendez
The PRESIDING OFFICER. On this vote, the yeas are 58, the nays are
38.
Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
The Republican leader.
Mr. McCONNELL. Mr. President, I enter a motion to reconsider the
vote.
The PRESIDING OFFICER. The motion is entered.
Mr. CORNYN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. PORTMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Amendment No. 4787
Mr. CORNYN. Mr. President, would the Senator from Arizona yield for a
question?
Mr. McCAIN. Absolutely.
Mr. CORNYN. Mr. President, I would say to my friend from Arizona,
before lunch we had a vote on a very important amendment the Senator
sponsored, along with the chairman of the Intelligence Committee, that
received a majority vote of the Senate but not enough to get us to the
60-vote threshold. I know the majority leader has put in a motion to
reconsider, which will allow him to bring that up because of some
absenteeism.
I want to ask my friend, during the time the shooter in Orlando was
under surveillance by the FBI and was actually put on a watch list, the
authority they had to gather information about him and particularly his
computer usage by issuing a subpoena to the Internet service provider
in order to identify IP addresses and perhaps email addresses, not
content--they were denied the opportunity to get that kind of
information. Does the Senator have any idea whether perhaps the FBI
might have been tipped to the fact that this shooter--let's say he was
accessing YouTube videos of Anwar al-Awlaki like Nidal Hasan in Fort
Hood was before he committed his terrorist attack there, or let's say
one of the email addresses they were able to collect was one of a known
terrorist or somebody the FBI suspected was complicit in terrorism,
obviously, under the Senator's amendment, in order to get the content
of that, the FBI would have to go to the FISA Court and establish
probable cause.
Does the Senator have an opinion whether that kind of information, to
which the FBI was blinded by the lapse in this authority--whether that
would be helpful information in identifying potential threats like we
saw in Orlando?
Mr. McCAIN. I say to my friend and colleague who has done so much
hard work on trying to achieve a careful balance and compromise that
all of us could agree to on the issue of weapons, I appreciate the
question and I appreciate his work.
I can't specifically state I know for a fact that the failure of the
ability of the FBI to monitor and know about use of the Internet--not
content but use of the Internet, such as the Senator mentioned IP
addresses and others. I can't say that would have prevented it. What I
can say, and the Senator knows, the Director of the FBI said this is
the most important tool he needs to defend this country against further
attacks. Is there anyone now in America who doesn't believe there is
going to be another self-radicalized or instructed individual who will
try to attack the United States of America? Of course not.
In their wisdom, a majority of my colleagues over there and a group
of my colleagues over here have rejected the urgent request from the
Director of the Federal Bureau of Investigation. I have seen a lot of
strange votes around here, I would say to my friend from Texas, but to
see Republicans, who advertise themselves as trying to protect the
people of this Nation, not give the Director of the Federal Bureau of
Investigation the tool he needs the most to counter what is clearly
coming, frankly, is one of the most puzzling and disappointing actions
that have been taken by my colleagues on this side of the aisle.
Mr. CORNYN. I thank the Senator.
I would merely add, this is not a partisan issue. As the Presiding
Officer and as the Senator from Arizona knows, the Intelligence
Committee has voted in a bipartisan way, with only one Senator
dissenting in the Intelligence reauthorization bill, to reinstate this
very authority the amendment of the Senator from Arizona pertained to.
I believe, of all the votes we have had this week, the vote on Senator
McCain's amendment was the one with the greatest potential to stop
future terrorist attacks like we saw in Orlando--because we all know
the shooter in Orlando was under two separate FBI investigations and he
was put on a watch list. With so much discussion about watch lists, he
was no longer on a watch list so the FBI was not notified when he went
in and purchased the two firearms he used in this attack. We also know
he was a licensed security guard, and he actually had a license to own
firearms.
This is a complicated and complex and confusing picture we have all
been presented, and we are all trying to figure out what is the
solution or what could we do to help reduce the possibility that
something like this might happen in the future? I can guarantee one
thing. It is not to limit the constitutional rights of law-abiding
citizens. That is not going to stop future terrorist attacks. If we
fail to give law enforcement and counterterrorism authorities the means
by which to identify these self-radicalized terrorists before they
kill--if we don't do that, then shame on us. This is not partisan, as I
said, because a bipartisan majority--with one dissenting vote--on the
Intelligence Committee voted for this provision, but we need to get
serious about this. I know, because of some absenteeism today--
necessary, I am sure--we didn't have every Senator here present and
voting.
[[Page S4454]]
I hope in the interim, from the time of that failed cloture vote on
the McCain-Burr amendment until the time we vote on this again when the
majority leader moves to reconsider, we can have some serious
discussions and serious efforts at trying to make our country safer and
protecting innocent Americans from terrorist attacks on our own soil.
If we deny the FBI Director the No. 1 legislative priority of the
agency, as he has told us time and time again--most recently in the
SCIF, in the secure facility. Obviously, that part is not classified,
but he said this is a very important tool. If we are going to ask the
FBI and our counterterrorism authorities to connect the dots, well,
they can't connect the dots unless they can collect the dots. Again,
this is with proper and appropriate regard, under the Fourth Amendment,
for American citizens when it comes to searches of their property or
seizures. Under the Fourth Amendment, we know there has to be
established probable cause that a crime has been committed, established
before an impartial judge. We are not talking about the content. We are
saying, if there are enough dots to connect together to raise a
reasonable suspicion on the part of our counterterrorism authorities,
they ought to then have the opportunity to go to a judge and get the
content of that communication under appropriate constitutional Fourth
Amendment procedures. If they don't even have access to the basic
information, then they can't connect the dots because they can't
collect them.
So of all the votes we have had this week, I believe the vote on the
McCain-Burr amendment was the most important because I think it was the
one most likely to produce additional tools that our counterterrorism
authorities could use in an investigation to identify self-radicalized
terrorists in the United States before they strike. It is too late
after they strike, when we are all asking the question: What can we
possibly do in order to prevent something like this from happening
again? We now know what we can do. It may not be a panacea, but it is
making sure our law enforcement authorities, such as the FBI, have the
tools they need in order to conduct these investigations, again to
collect the dots so they can connect those dots.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Flake). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. COATS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COATS. Mr. President, there is a lot going on around here. Before
lunch, we finished a vote that I was very disappointed did not reach
the 60-vote threshold so we could proceed to debate and vote on what I
think is one of the more important issues we are dealing with; that is,
our ability to stop terrorist attacks.
As a member of the Senate Intelligence Committee, we have had the
opportunity to meet several times with Director Comey, the head of the
FBI, asking him if they have the tools necessary to prevent terrorist
attacks against innocent Americans. Simply because of changes in
technology, a tool they had before--and by ``tool,'' a method they had
before to try to determine who is trying to do us harm--works for one
type of technology, but new technology, basically because of an
omission in the language that was never intended by the Congress, does
not give us the ability to so-call connect the dots to give us the
opportunity to then go and seek a warrant for further investigation.
This was the vote we had on the floor. We came up just one or two
votes short. I know the majority leader made a motion to reconsider so
we will be taking this up again. I hope my colleagues who did not vote
for this will take the opportunity as a Member of the U.S. Senate to
come to the Intelligence Committee to sit down, look at the classified
information, and assure themselves this does nothing that invades
anyone's privacy rights.
There seems to be a lack of information as to what is being asked
for. In that regard, hopefully during this next few days, we will have
the opportunity for our colleagues to come and understand this.
Frankly, it is something many had voted for but were not aware of this
glitch in the language that has put us in this particular position. I
will be happy to accompany any of my colleagues to a place where we can
look through, on a classified basis, why this is so important.
[...]
