[Congressional Record Volume 163, Number 45 (Wednesday, March 15, 2017)]
[Senate]
[Pages S1811-S1824]
EXECUTIVE SESSION
______
EXECUTIVE CALENDAR
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to resume consideration of the following
nomination, which the clerk will report.
The legislative clerk read the nomination of Daniel Coats, of
Indiana, to be Director of National Intelligence.
The PRESIDING OFFICER. Under the previous order, the time until 10
a.m. will be equally divided in the usual form.
The Senator from North Carolina.
Mr. BURR. Mr. President, I rise today to support Senator Dan Coats,
our former colleague and a friend, as the President's nominee to be the
next Director of National Intelligence. Dan Coats has been asked to
lead our Nation's intelligence community of over 100,000 individuals
during, I think, the most profound period of threats and change. Let me
say to my colleagues, it is a job that Dan Coats is well prepared to
do.
After graduating from Wheaton College, Dan served honorably in the
U.S. Army before serving the State of Indiana as a House Member, as a
Senator, and for not only Indiana but this country as Ambassador to
Germany.
While in the Senate, Dan was engaged and was a valuable member of the
Senate Intelligence Committee. He dedicated countless hours to
understanding and overseeing the intelligence community--in essence,
one of 15 people who certified for 85 others and for the American
people that we do everything we can to keep America safe but we do it
within the parameters of the rule of law. He is well versed in the
operational capabilities and authorities. He understands the threat we
are facing at home and abroad. He understands that we need to improve
our ability to collect against our adversaries, and Dan will be a
forceful advocate for intelligence collection but, again, never
jeopardizing that line of what is legal and what is not.
Dan's legislative experience also translates to his understanding and
his appreciation of the need for transparency with the appropriate
oversight committees and, more importantly, with the Congress and the
American people.
Dan's intellect, his judgment, his honorable service, and his
commitment to the workforce make him a natural fit as Director of
National Intelligence. I have absolute trust that he will lead the
community with integrity, and he will ensure that the intelligence
enterprise operates lawfully, ethically, and morally.
So today I rise in this austere body to urge my colleagues to support
the President's nominee for Director of National Intelligence. We are
now in March. We have gone from January until March with one of the
most important posts of this administration unfilled. Congress must act
quickly, and it is my hope that Members, before the end of this day,
will make sure we have a Director of National Intelligence in place.
I urge my colleagues to support this nomination.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Cotton). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
CLOTURE MOTION
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will state.
The senior assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the
[[Page S1812]]
Standing Rules of the Senate, do hereby move to bring to a
close debate on the nomination of Daniel Coats, of Indiana,
to be Director of National Intelligence.
Mitch McConnell, Michael B. Enzi, David Perdue, Bob
Corker, John Hoeven, Lamar Alexander, Bill Cassidy,
John Barrasso, Dan Sullivan, Tim Scott, James Lankford,
Tom Cotton, Mike Rounds, James M. Inhofe, Chuck
Grassley, Roy Blunt, Richard Burr.
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 the
nomination of Daniel Coats, of Indiana, to be Director of National
Intelligence, 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 Georgia (Mr. Isakson).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 88, nays 11, as follows:
[Rollcall Vote No. 88 Ex.]
YEAS--88
Alexander
Barrasso
Bennet
Blumenthal
Blunt
Boozman
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Cochran
Collins
Coons
Corker
Cornyn
Cortez Masto
Cotton
Crapo
Cruz
Daines
Donnelly
Durbin
Enzi
Ernst
Feinstein
Fischer
Flake
Franken
Gardner
Graham
Grassley
Hassan
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Johnson
Kaine
Kennedy
King
Klobuchar
Lankford
Leahy
Lee
Manchin
McCain
McCaskill
McConnell
Menendez
Moran
Murkowski
Murphy
Murray
Nelson
Perdue
Peters
Portman
Reed
Risch
Roberts
Rounds
Rubio
Sasse
Schatz
Schumer
Scott
Shaheen
Shelby
Stabenow
Strange
Sullivan
Tester
Thune
Tillis
Toomey
Udall
Van Hollen
Warner
Whitehouse
Wicker
Young
NAYS--11
Baldwin
Booker
Duckworth
Gillibrand
Harris
Markey
Merkley
Paul
Sanders
Warren
Wyden
NOT VOTING--1
Isakson
The PRESIDING OFFICER. On this vote, the yeas are 88, the nays are
11.
The motion is agreed to.
The Senator from Virginia.
Mr. WARNER. Mr. President, first of all, I thank my friend the
Senator from Texas for giving me the courtesy of letting me get in my
comments about the nomination of former Senator Dan Coats to serve as
the fifth Director of National Intelligence, a position recommended by
the 9/11 Commission and established by the Intelligence Reform and
Terrorism Prevention Act of 2004.
Dan Coats is a friend of mine and many in this body. He represented
Indiana in both the U.S. House and for separate terms in the U.S.
Senate. He was also U.S. Ambassador to Germany from 2001 to 2005. As
mentioned, for 6 years I served with the nominee on the Senate Select
Committee on Intelligence. I have always found Dan to be fairminded and
know him to be an advocate for strong oversight of the intelligence
community. He believes in the need for intelligence that is timely,
relevant, and free of political interference.
During my private meeting with him, as well as during his
confirmation hearing, Senator Coats committed to find and follow the
truth, regardless of where it leads, agreeing that his primary job will
be ``to speak truth to power,'' to the President, to policy and
military leaders, and to Members of Congress. I know these are traits
he will continue to employ if confirmed as the next Director of
National Intelligence.
During James Clapper's most recent tenure as the DNI, in 6 years he
put in place some fundamental changes in how the Intelligence community
operates. He reoriented the Office of the DNI to focus on intelligence
integration with an emphasis on mission. He often was willing to roll
up his sleeves and take on the hard challenges of trying to get the
intel community to operate on the same IT backbone systems. If
confirmed, I have encouraged Senator Coats to build upon former
Director Clapper's efforts, which are critical to ensuring that
policymakers, warfighters, law enforcement, and national security
officers receive intelligence products that are timely, relevant, and
objective.
Of course, if confirmed, Director Coats will take on the job as the
Nation's chief intelligence officer, leading the intelligence community
during a very difficult time because unfortunately this President,
along with his closest advisers, has repeatedly and unfairly disparaged
the professionalism and actions of the Nation's intelligence
professionals. These are men and women who maintain the highest
standards of professionalism and integrity. They anonymously sacrifice
for the country, often in the face of grave personal danger.
As DNI, Senator Coats is committed to defending the values and
integrity of the men and women of the intelligence community, even when
the White House may not like to hear it.
Another challenge Senator Coats will face on his first day on the job
is to effectively support the Senate Intelligence Committee's ongoing
investigation into Russian interference in the 2016 Presidential
election. Last week, I went to CIA headquarters in Langley, along with
a number of other Members of the committee, to review the beginnings of
the raw intelligence that led the community to conclude that Russia
massively interfered in our last Presidential election. Both in public
and in private, Senator Coats has promised he will support the
committee's investigation to the fullest. We will hold him to that
commitment.
On this topic, I want to reiterate on the Senate floor what I have
already said numerous times. This investigation is not about being a
Democrat or Republican nor about relitigating the 2016 election. The
investigation is about upholding the core values and sanctity of
democracy that all Americans hold dear. It is also about holding Russia
accountable for their improper interference in our elections and arming
our allies--one of which has an election today--with information about
the means employed by Russia in our elections so they can use that
information to protect the integrity of their own electoral process.
We will work to ensure that this critical investigation is done
right, done in a bipartisan manner, free of any political interference,
and as the chairman and I have both reiterated, that it follows the
facts wherever they may lead.
I have every reason to believe Senator Coats will be forthcoming in
supporting this investigation. If at any point it becomes clear to me
that the Senate Intelligence Committee is unable to keep up these
commitments, I am prepared to support another process.
Finally, let me acknowledge two other things.
During Senator Coats' confirmation hearing, he was asked about his
role on the National Security Council, including the Principals
Committee. He assured us that he will be attending these meetings and
participating in them despite the confusion created by an Executive
order that appeared to disinvite the DNI from these meetings. If he is
not included in these meetings, I will expect to know about it and the
reason why.
Senator Coats has also committed to me personally and to the
committee that he will not support the return of waterboarding and
other so-called enhanced interrogation practices, nor will he support
reestablishing secret detention sites into the activities of the
intelligence community. He reassured the committee that he will follow
the law as it now stands and that he will not advocate for changes to
the law or recommend a reinterpretation of the law based on any
personal beliefs. The law is clear: No interrogation techniques outside
the Army Field Manual are allowed.
Finally, Senator Coats has also reassured me and all of the members
of the committee that if confirmed, he will always present to the
President, to his Cabinet advisers, and to those of us in Congress the
unvarnished facts as represented by the best judgments of the
intelligence community whether or not that analysis is in agreement
with the views of the President, with ours in Congress, or with anyone
else's who might receive them.
[[Page S1813]]
For these reasons, I support the movement. I was glad to see 88
Members of this body support Dan's movement forward. I believe he will
be a great fifth Director of National Intelligence.
I thank my friend the Senator from Texas for giving me time.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I thank my friend, the Senator from
Virginia, who is the vice chair of the Senate Select Committee on
Intelligence, for his remarks.
I, too, support the nomination of Dan Coats to serve as the next
Director of National Intelligence and succeed James Clapper, who has
been in the intelligence business for 50-plus years. He has big shoes
to fill, but I have every confidence Dan Coats can do that.
One of the things I hope he looks at is that post-9/11, when the
Office of the Director of National Intelligence was created, we
basically created another layer in the intelligence community. As the
Presiding Officer and other Members know, the DNI--the Office of the
Director of National Intelligence--has grown by leaps and bounds. I
just hope he takes a good, hard look at the layers we have created,
perhaps at the duplicative functions that do not necessarily make our
intelligence any better but that do create more problems in managing
what is a very important office to our national security and certainly
to the intelligence community.
Sunshine Week
Mr. President, on another matter, in spite of the snow yesterday, I
recognize the fact that this is Sunshine Week. Sunshine Week is a
movement that was created to highlight the need for more transparent
and open government. Justice Brandeis is also often quoted when one
talks about transparency in government and its importance to a
functioning democracy when he said that sunlight is the best
disinfectant.
As a conservative, I would much rather have people change their
behavior in their knowing that their actions are going to be public
rather than to pass new laws and new regulations. To me, knowing that
the public is going to be aware of what one is doing causes people,
typically, to be on their best behavior. I think that is the reason I
support Justice Brandeis' comment that sunlight is the best
disinfectant. I believe that is true.
I have done my best to keep that sentiment in mind to create
legislation that presses our democracy toward more openness in the
Federal Government, not less. That is because I believe our country
grows stronger when operating under the principle that an open
government is the basic requirement for a healthy democracy. Of course,
when voters know and understand what their government is doing, they
are in the best position to change its direction if they disagree with
it or to reaffirm that direction by casting their votes as informed
members of the electorate.
Democracy can only work when the public knows what government is
doing and can hold it accountable, so I am glad that at this time of
year, we can look back at the successful efforts we have made to
promote transparency while looking ahead to do more.
Last Congress, I introduced the Freedom of Information Act
Improvement Act. It is a law that strengthens the existing Freedom of
Information Act, which is the country's chief open government law, by
requiring Federal agencies to operate under a presumption of openness
when considering whether to release government information in their
custody.
We passed it last summer, and President Obama signed it into law.
This important new law accomplishes some of the most sweeping and
meaningful reforms in its history to the Freedom of Information Act,
and it is already making a direct impact by helping the public access
more information.
Because of the Freedom of Information Act Improvement Act, last
October, the CIA released a portion of its official history of the Bay
of Pigs invasion, which has been kept classified for decades. This is a
critical part of our Nation's history that is worth knowing, and I
believe it is no longer necessary to keep it under wraps in order to
protect America's national security.
This serves as an example of what we are trying to accomplish with
this law and others like it so as to build upon the idea the Founding
Fathers recognized hundreds of years ago; that a truly democratic
system depends on an informed citizenry to hold its leaders
accountable. That is an idea everyone in this Chamber, on both sides of
the aisle, can agree upon.
I am thankful to the senior Senator from Vermont, Mr. Leahy, for
working with me on the Freedom of Information Act Improvement Act and
making it a priority. As a matter of fact, Senator Leahy has been my
partner on a number of our efforts in this important area over the
years that we have both been in the Senate.
I also appreciate Chairman Grassley's leadership, the chairman of the
Senate Judiciary Committee, for stewarding this bill through the
committee, and I appreciate Leader McConnell for making sure this was a
priority for this Chamber.
In looking ahead, I will continue working with Chairman Grassley to
make sure the Federal agencies are implementing this law in a timely
manner, and I look forward to doing more to strengthen greater
government transparency measures in the future.
Nomination of Neil Gorsuch
Finally, Mr. President, next week, the Judiciary Committee will take
up the nomination of Neil Gorsuch for the U.S. Supreme Court so he may
fill the seat that was vacated by the death of Justice Scalia. That
process, of course, begins with hearings to consider his qualifications
and his credentials, but heading into next week, we already know a lot
about his record.
He has been praised by people across the political spectrum--from
liberals to conservatives--as a highly qualified and exceptional judge
with impeccable integrity. He served with great distinction on the
Tenth Circuit Court of Appeals, based out of Denver, for the last 10
years, after having been confirmed by this Chamber unanimously. His
hometown newspaper, the Denver Post, encouraged the President to
nominate Judge Gorsuch before his nomination was even announced. This,
of course, was the same newspaper that endorsed Hillary Clinton for
President. Clearly, Judge Gorsuch has won the respect of those across
the political spectrum and on both sides of the aisle. Last week, the
American Bar Association announced its unanimous decision to grant
Judge Gorsuch the highest rating available; that of ``well qualified''
as a nominee to serve on the Supreme Court of the United States.
I should point out that both the minority leader and former chairman
of the Judiciary Committee--the senior Senator from Vermont--have
called the American Bar Association's rating system the ``gold
standard'' when it comes to assessing the qualifications of judicial
nominees.
Judge Gorsuch will also bring decades of experience on the bench, as
I mentioned a moment ago. He has also served in private practice, as an
attorney with the Justice Department, and, of course, as a Federal
judge.
It is time to move forward with the President's nominee to fill the
seat that was left open by the death of the late Justice Scalia, and I
believe Judge Gorsuch is just the man to fill it. I look forward to
hearing from him next week as we consider his nomination to this
important position.
I express my gratitude to Chairman Grassley and the ranking member,
Senator Feinstein, for their efforts thus far in putting these hearings
together, and I look forward to working with the rest of my colleagues
on the Judiciary Committee to consider the nomination of Judge Gorsuch,
starting next Monday, March 20.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I know both sides are working on trying to
get an arrangement for the vote.
Mr. President, I also want to tell my colleague from Texas that I
listened very carefully to his remarks with respect to transparency in
government. He has had a long interest in the Freedom of Information
Act and the like. I noted that he made a comment about the Bay of Pigs,
about which information is still classified, and I know something about
this because my dad wrote a book about the subject. My hope is that my
friend from Texas and his interest in transparency will also extend to
some other areas.
As I indicated, I am very familiar with my colleague's record with
respect to Freedom of Information Act issues, which really is
impressive. I
[[Page S1814]]
hope to get him involved in some other areas of transparency--perhaps
in campaign finance reform and the issue I am going to be speaking
about today, that of getting the American people the information--after
6 years of stonewalling--on how many lawful Americans are getting swept
up in what will be Dan Coats' top priority, that of the reauthorization
of the Foreign Intelligence Surveillance Act.
I want my colleague to know, in my being very much aware of his good
work on the Freedom of Information Act issues, that we are going to try
and conscript them into some other transparency issues as well.
Mr. CORNYN. Mr. President, may I ask the Senator to yield to consider
a couple of brief consent requests?
Mr. WYDEN. Mr. President, of course.
I will tell my colleague, as to what the majority and the minority
have agreed to, as soon as those consent requests are ready, then we
will take a time out from my remarks and make sure that matter is
resolved.
As we wait for the matter Senator Cornyn has mentioned, I will begin
the discussion of the nomination of Dan Coats to be the Director of
National Intelligence.
I have known Senator Coats for many years. He has been the lead
cosponsor of the bipartisan Federal income tax reform proposal, which
has been a special priority of mine. I do not know of a single U.S.
Senator who does not like Senator Coats. He is honest, a straight
shooter, and gracious. My remarks are not about my personal affection
for Senator Coats.
The reason I am voting against the nomination is due to the matter I
just touched upon with the Senator from Texas, which is, for 6 years,
it has been impossible to get the intelligence community to provide the
Congress and the American people information that is absolutely
critical to the debate on reauthorizing the Foreign Intelligence
Surveillance Act. For 6 long years, Democrats and Republicans, both in
this body and in the other body, have been trying to get this
information.
So this morning, given the fact that this legislation would be the
top priority of Senator Coats, as he said in the Intelligence
Committee, I want the Senate and the country to understand why this
issue is so important.
First, I am happy to yield to my friend from Texas.
The PRESIDING OFFICER. The Senator from Texas.
Order of Procedure
Mr. CORNYN. Mr. President, I thank my colleague for yielding for a
brief UC request, as I think this would be in the best interests of the
entire Senate.
I ask unanimous consent that notwithstanding rule XXII, the cloture
motion on Executive Calendar No. 19, the McMaster nomination, be
withdrawn; that the time until 1:45 p.m. be equally divided in the
usual form on the Coats and McMaster nominations concurrently; and that
at 1:45 p.m. the Senate vote on the Coats nomination, followed by a
vote on the McMaster nomination; and that, if confirmed, the President
be immediately notified of the Senate's actions, with no intervening
action or debate. I further ask that 1 hour of minority debate time be
reserved for Senator Wyden.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. CORNYN. Mr. President, I also ask unanimous consent that
following morning business on Tuesday, March 21, the Senate proceed to
executive session for the en bloc consideration of the following
nominations: Executive Calendar Nos. 21 and 22. I ask unanimous consent
that the time until 12 noon be equally divided and that following the
use or yielding back of time, the Senate vote on the nominations, en
bloc, with no intervening action or debate; that, if confirmed, the
motions to reconsider be considered made and laid upon the table, en
bloc, and the President be immediately notified of the Senate's action;
that no further motions be in order; and that any statements relating
to the nominations be printed in the Record.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. CORNYN. Mr. President, I thank my friend and colleague for
yielding for those unanimous consent requests.
Mr. WYDEN. I thank my colleague.
Now, as we consider the nomination of Senator Coats, and recognize
that his top priority, by his admission, would be the reauthorization
of the Foreign Intelligence Surveillance Act--particularly section
702--I want to begin this discussion by saying that it is because the
intelligence community has stonewalled Democrats and Republicans in
both this body and in the other body for 6 years on the information
that we need to do good oversight that I have come to the floor to
outline what I think the central issue is all about.
I am going to begin my remarks by way of saying that, at a time when
Americans are demanding policies that give them more security and more
liberty, increasingly, we are seeing policies come from both this body
and the other body that provide less of both.
A good example would be weakening strong encryption. Weakening strong
encryption is bad from a security standpoint, and it is bad from a
liberty standpoint. When government creates policies that give the
American people less of both--less security and less liberty--
obviously, the American people are not going to react well.
My view is that when the government--particularly intelligence
agencies--don't level with the American people about large-scale
surveillance of law-abiding Americans, our people are justifiably
angry. When the government tries to keep this information secret--as I
have pointed out on this floor before--in America, the truth always
comes out. Leveling with the American people is the only way for
agencies to have the credibility and the legitimacy to effectively do
their jobs. They have critically important jobs in keeping our people
safe from threats.
Now, with respect to Senator Coats, at his confirmation hearing,
since he said the Foreign Intelligence Surveillance Act would be his
top priority, I asked our former colleague how many Americans--
innocent, law-abiding Americans--have actually been swept up in the
surveillance program known as section 702 of the Foreign Intelligence
Surveillance Act. Under section 702, the government conducts
warrantless surveillance of foreigners who are reasonably believed to
be overseas. It does this work by compelling telecommunications
companies and internet service providers to provide the content, phone
calls, and emails, and other individual communications.
Now, there are several different ways this happens, and I will get to
that in the course of these remarks. What we are talking about--what I
want people to understand--is that this goes to the content of
communications. This is not about metadata collection. Congress, as the
Senate knows, reformed that in the USA FREEDOM Act. This is
surveillance without any warrants, and once the FISA Court signs off on
the overall program, the details are up to the government.
Now, this was not always the case. For decades, individual warrants
were required when the government needed the assistance of the
country's telecommunications firms. Then the Bush administration
created a secret, but legal, warrantless wiretapping program.
After the program was revealed, the government then went to the
Foreign Intelligence Surveillance Act Court to get approval. But when
the government ran into some trouble with the court, the Bush
administration argued that the Congress should create the current
program. It was first passed in 2007 under the name Protect America
Act. That became the Foreign Intelligence Surveillance Act Amendments
Act of 2008.
Now, fortunately, the Congress included a sunset provision, which is
why it was up for reauthorization in 2012, and that is why it is up for
reauthorization this year. This year it is Senator Coats' top priority,
if confirmed. Whoever is the head of the intelligence community will be
the point person for this legislation.
I want it understood that the reason that I am going through this
background is that I believe the American people deserve a fully
informed debate about the Foreign Intelligence Surveillance Act
reauthorization. You cannot have that debate--you cannot ensure that
the American people have security and liberty--unless you know the
impact of section 702 of that bill on the constitutional rights of law-
abiding Americans.
[[Page S1815]]
So for 6 years, in this body, Democrats and Republicans--and in the
other body, Democrats and Republicans--have been asking the same
question: How many law-abiding Americans are having their
communications swept up in all of this collection? Without even an
estimate of this number, I don't think it is possible to judge what
section 702 means for the core liberties of law-abiding Americans.
Without this information, the Congress can't make an informed decision
about whether to reauthorize section 702 or what kind of reforms might
be necessary to ensure the protection of the individual liberties of
innocent Americans.
At Senator Coats' nomination hearing before the Senate Intelligence
Committee, I asked Senator Coats whether he would commit to providing
Congress and the public with this information. I will say, because of
my respect for Senator Coats and our longtime cooperation on issues
like tax reform and a variety of others, I hoped that Senator Coats
would be the one--after 6 years of struggling to get this information--
to make a commitment to deliver it to the Senate Intelligence Committee
before work on the reauthorization began. Instead, Senator Coats said:
``I will do everything I can to work with Admiral Rogers at the NSA to
get you that number.''
If confirmed, I hope that happens. But after asking for the number of
law-abiding Americans who get swept up in these searches for years, and
getting stonewalled by the executive branch, hoping to get the
information we need to do real oversight is just not good enough.
The problem--the lack of information on the impact of this law on the
privacy of Americans--goes all the way back to the origins of the
authority. In December of 2007, the Bush administration, in its
statement of administration policy on the FISA Amendments Act, stated
that it would likely be impossible to count the number of people
located in the United States as communications were reviewed by the
government. In April of 2011, our former colleague Senator Mark Udall
and I then asked the Director of National Intelligence, James Clapper,
for an estimate. In July of that year, the Director wrote back and
said: ``It is not reasonably possible to identify the number of people
located in the United States whose communications may have been
reviewed under the authority of the Foreign Intelligence Surveillance
Act.''
He suggested reviewing the classified number of disseminated
intelligence reports containing a reference to a U.S. person, but that
is very different than the number of Americans whose communications
have been collected in the first place. And that is what this is all
about: How many law-abiding Americans--innocent, law-abiding
Americans--are getting swept up in these searches? It will be an
increasingly important issue as the nature of telecommunications
companies continues to change, because it is now a field that is
globally interconnected. We don't have telecommunications systems just
stopping at national borders. So getting the number of Americans whose
communications have been collected in the first place is the
prerequisite to doing real oversight on this law and doing our job, at
a time when it is being reauthorized and the American people want both
security and liberty and understand that the two are not mutually
exclusive.
So Director Clapper then suggested reviewing the classified number of
targets that were later determined to be located in the United States.
But the question has never been about the targets of 702, although the
mistaken targeting of Americans and the people in our country is
another serious question. The question that Democrats and Republicans
have been asking is about how many Americans are being swept up by a
program that, according to the law, is supposed to only target
foreigners overseas.
So let me repeat that. That is what the law says. The Foreign
Intelligence Surveillance Act says that the targets are supposed to be
foreigners overseas, and Democrats and Republicans want to know how
many law-abiding Americans, who might reside in Alaska or Oregon or
anywhere else, are getting swept up in these searches.
(Mr. SULLIVAN assumed the Chair.)
So this bipartisan coalition has kept asking. In July of 2012,
anticipating the first reauthorization of section 702 of the Foreign
Intelligence Surveillance Act, I and 11 other Senators from both
parties wrote to Director Clapper. This bipartisan group wrote:
We understand that it might not be possible for the
intelligence community to calculate this number with
precision, but it is difficult for us to accept the assertion
that it is not possible to come up with even a rough estimate
of this number. If generating a precise estimate would
require an inordinate amount of labor, we would be willing to
accept an imprecise one.
We asked about imprecise estimates, just a ballpark: How many law-
abiding Americans are getting swept up in these searches that the law
says are designed to target foreigners?
We asked about orders of magnitude: Is the number closer to a hundred
or a hundred thousand or a hundred million?
We still got no answer, and section 702 was reauthorized without this
necessary information. So last year, looking at the prospect of the law
coming up, there was a renewed effort to find out how many law-abiding
Americans are getting swept up in these searches of foreigners.
In April 2016, a bipartisan letter from members of the House
Judiciary Committee asked the Director of National Intelligence for a
public estimate of the number of communications or transactions
involving U.S. persons collected under section 702 on an annual basis.
This letter, coming from the House--Democrats and Republicans--again
asked for a rough estimate. This bipartisan group suggested working
with Director Clapper to determine the methodology to get this
estimate. In December, there were hints in the news media that
something might be forthcoming. But now, here we are, with a new
administration, considering the nomination of the next head of the
intelligence community, who has said that reauthorizing section 702 is
his top legislative priority, and there is no answer in sight to the
question Democrats and Republicans have been asking for over 6 years:
How many innocent, law-abiding Americans are getting swept up in these
searches under a law that targets foreigners overseas?
Having described this history, I want to explain why this issue is so
important, starting with the many ways in which innocent Americans can
be swept up in section 702 surveillance.
The first are targeting mistakes in which, contrary to the law, the
target turns out to be an American or someone in the United States. The
full impact of these mistakes on law-abiding Americans is not readily
apparent. The most recent public report on section 702 noted that there
were compliance incidents involving surveillance of foreigners in the
United States and surveillance of Americans. This is in violation of
the law, and it happens.
The second way in which Americans can be swept up in section 702
collection is when they communicate with an overseas target. This is
usually called incidental collection and is often mischaracterized. I
have heard many times that the program is intended to find out when
Americans are communicating with ``bad guys''--and I want it
understood, I am not interested in some kind of ``bad guys caucus.'' I
know of no Senator who is not interested in protecting our country from
those kinds of threats. If a known terrorist overseas is communicating
with someone in the United States, we ought to know about it. But
section 702 is not just a counterterrorism program. The statute
requires the collection be conducted ``to acquire foreign intelligence
information.'' As implemented, the standard for targeting individuals
under the program is that the government has reason to believe those
persons possess, are expected to receive, or are likely to communicate
foreign intelligence information. Obviously, that is broad. It doesn't
even require that a target be suspected of wrongdoing. So if someone
tells you that your communications will be collected only if you are
talking to al-Qaida or ISIS, that is just factually wrong.
It is also important to note that the government is prohibited from
collecting communications only when the sender of an email and everyone
receiving that email are in the United States. So an American in the
United States could send an email to another American in the United
States, but if
[[Page S1816]]
the email also goes to an overseas target, it is going to be collected.
That then brings us to the different kinds of collection under
section 702 and how they affect the liberties of our people in
different ways. In one form of collection known as PRISM, the
government orders an internet service provider to provide the
government with messages to and from a specific email address. Then
there is something known as upstream collection, which is when the
communications are collected off the telecommunications and internet
backbones. In other words, phone calls and email messages are collected
in transit. This kind of collection raises a number of other reasons to
be concerned about how many law-abiding Americans are getting swept up.
For one, it is through upstream collection that the government can
collect emails that are neither to nor from a target. The email merely
has to be about a target, meaning, for example, it includes a target's
email address in the content. In other words, the government can
collect emails to and from Americans, none of whom are of any interest
to the government whatsoever, so long as the target's email address is
in the content of the email. The law requires only that one of the
parties to the communication, who, again, could be another American, is
overseas, and even that requirement is harder for the government to
meet in practice.
The implications here ought to be pretty obvious. You don't even have
to be communicating with one of the government's targets to be swept up
in Foreign Intelligence Surveillance Act collection. You don't even
have to be communicating with a foreigner. You or somebody emailing you
just needs to reference a target's email address.
I have now mentioned that this target is not necessarily a terrorist
because the law allows for surveillance ``to acquire foreign
intelligence information.'' That has been interpreted to allow the
targeting of individuals who the government has reason to believe
possess, are expected to receive, or are likely to communicate foreign
intelligence information. It is a broad standard, and the government
could then collect the communications of all kinds of foreigners around
the world. Think about how easy it would be for an American business
leader to be in contact with the broad set of potential targets of this
program. Consider how easy it would be for Americans, communicating
with other Americans, to forward the emails of these people. All of
this could be collected by the government.
The upstream collection also includes the collection of what are
called multicommunications transactions. This is when the NSA collects
an email that is to, from, or about a target, but that email is
embedded among multiple other communications that are not. These
communications may have nothing to do with the target, but the
government just kind of, sort of ends up with them--and some of them
are sent and received entirely within the United States.
These are the ways in which law abiding Americans--innocent, law-
abiding Americans who have done absolutely nothing wrong, both overseas
and in the United States--can have their communications collected under
the Foreign Intelligence Surveillance Act. These are law-abiding
Americans, innocent Americans, not necessarily suspected of anything,
and it is their privacy and their constitutional rights that have
caused Democrats and Republicans in this body and in the other body to
seek the actual numbers of how many law-abiding Americans are getting
swept up in these searches that are supposed to target foreigners
overseas.
The reason this is important is that the program is getting bigger
and bigger. The exact numbers are classified, but the government's
public reporting confirms steady increases in collection. At some
point, the size of the program and the extent to which Americans'
communications are being collected raises obvious concerns about our
Fourth Amendment. The question is not if the program raises
constitutional concerns, but when. And that gets to the heart of what
our bipartisan coalition has been concerned about: If it is not
possible for the Senate to know as part of reauthorizing this law how
many Americans are being swept up by this program, we cannot determine
whether the government has crossed a constitutional line.
The Privacy and Civil Liberties Oversight Board, an agency the
Congress has tasked to look at these issues, has raised the very same
concerns I am outlining this morning. In the 2014 report by the Board--
the nonpartisan organization tasked by the Congress--concluded that the
lack of information about the collection of the communications of law-
abiding Americans' communications under section 702 ``hampers attempts
to gauge whether the program appropriately balances national security
interests with the privacy of U.S. persons.''
They went on to say:
The program [is] close to the line of constitutional
reasonableness. At the very least, too much expansion in the
collection of U.S. persons' communications or the uses to
which those communications are put may push the program over
the line.
They recommended exactly what our bipartisan coalition has been
calling for--that the government provide to the Congress and, to the
extent consistent with national security, that the public and the
Congress get data on the collection of these communications of law-
abiding Americans.
The most frequently heard argument against what our bipartisan group
of House and Senate Members has been calling for is that, whatever
number of communications are being collected on law-abiding Americans,
it is minimized, which implies that information about Americans is
hidden.
This is a particularly important issue. I have heard my colleagues on
the other side say frequently: Well, if law-abiding Americans are
having their communications swept up, we shouldn't get all concerned
about that because this array of Americans' communications is being
minimized. Somehow that means it is not getting out; it is being
hidden. That is not necessarily what happens. To begin with, all that
collection does not stay at the National Security Agency. All the
emails collected through the PRISM component of section 702 go to
several other agencies, including the CIA and the FBI. Then we have
those three agencies, in particular, authorized to conduct searches
through all the data for communications that are to, from, or about
Americans: Look for an American's name, telephone number, email
address, even a key word or phrase. They can do that without any
warrant. There doesn't have to be even a suspicion--even a suspicion--
that an American is engaged in any kind of wrongdoing. The FBI's
authorities are even broader. The FBI can conduct searches for
communications that are to, from, or about an American to seek evidence
of a crime. Unlike the National Security Agency and the Central
Intelligence Agency, the FBI doesn't even report how many searches for
Americans it is conducting. Moreover, neither the FBI nor the CIA
reports on the number of searches for Americans that it conducts using
metadata collected under section 702.
The authority to conduct searches for Americans' communications in
section 702 data is new. Before 2011, the FISA Court prohibited queries
for U.S. persons. I am going to repeat that. Under the Bush
administration and in the first 2 years of the Obama administration, it
was not possible to conduct these backdoor, warrantless searches of
law-abiding Americans. Then the Obama administration sought to change
the rules and obtained authority to conduct them.
In April 2014, the Director of National Intelligence's response to
questions from me and Senator Mark Udall publicly acknowledged these
warrantless searches. By June the House voted overwhelmingly to
prohibit them. That prohibition didn't become law, but I can tell you
that it is sure going to be considered in the context of this
reauthorization. The House voted overwhelmingly to prohibit these
warrantless searches.
So the question really is this: What exactly is the privacy impact of
these warrantless searches for Americans? In 2014, I managed to extract
from the intelligence community some, but not all, necessary
information about how many Americans had been subject of the searches.
That was a step forward, but what the data doesn't tell us is who the
subjects of these searches are. More to the point, it doesn't tell us
how many Americans are potentially the subject of these searches. If
the number
[[Page S1817]]
is small, the potential for abuse, obviously, would be smaller. If the
number is large, the potential for abuse is much greater. Without an
understanding of the size of the pool from which the government can
pull the communications of law-abiding Americans, there is just no way
of knowing how easy it would be for the government to use this law as a
means to read the emails of a political opponent, a business leader, a
journalist, or an activist.
I now want to turn to the ultimate form of abuse, and that is
something called reverse targeting. It is prohibited by law and defined
as collection ``if the purpose of the acquisition is to target a
particular, known person reasonably believed to be in the United
States.'' This prohibition also applies to U.S. persons. The question,
though, is how this is defined and how the public can be assured it is
not happening.
If you look at the language, you can see why there has been
bipartisan concern. The collection is only prohibited if the purpose is
to get the communications of Americans. The question obviously has
risen: What if getting the Americans' communications is only one of the
purposes of collecting on an overseas target? What is actually
acceptable here?
This issue was concerning in 2008, when the Foreign Intelligence
Surveillance Act Amendments Act passed with a prohibition on reverse
targeting. But that was before the country knew about the collection of
emails that are only about a foreign target and that could be to and
from Americans. That was before the Obama administration sought and
obtained authority to conduct warrantless searches for communications
to, from, and about Americans out of section 702 PRISM collection.
That makes an important point to me. This bipartisan coalition--of
which I have been a part--has fought back against executive branch
overreach, whether it is a Democratic administration or a Republican
administration. I cited the fact that President Obama brought back
something with the great potential for abuse and that President Bush
said he wanted no part of. As we look at these issues, it is important
to understand exactly what the scope of the problem is. Each of the
agencies authorized to conduct these warrantless searches--the NSA,
FBI, CIA--are also authorized to identify the overseas targets of
section 702. The agencies that have developed an interest in Americans'
communications, which are actually looking for these communications,
are the same agencies that are in a position to encourage ongoing
collection of those communications by targeting the overseas party.
I believe our bipartisan group believes that there is very
substantial potential for abuse. Because of these decisions taking
place in the executive branch without any judicial oversight, it is
possible that no one would ever know.
To quote the Privacy and Civil Liberties Oversight Board: ``Since the
enactment of the FISA Amendments Act of 2008, the extent to which the
government acquires the communications of U.S. persons under Section
702 has been one of the biggest open questions about the program, and a
continuing source of public concern.'' The Board noted that the
executive branch has responded with any number of excuses for why it
couldn't provide the number of how many innocent law-abiding Americans
get swept up in these searches. One excuse has been the size of the
program. But as Members--Democrats and Republicans--have said
repeatedly, an estimate, perhaps based on a sample, is sufficient.
Nobody is dictating how this be done.
Another excuse has been that determining whether individuals whose
communications have been collected are American would itself be
invasive of privacy. Now this is something of a head-scratcher. I will
just say that, as to the value of knowing how many law-abiding
Americans get swept up in these searches, privacy advocates have stated
that this far-fetched theory, this far-fetched excuse for not
furnishing it, doesn't add up in terms of the benefit of finding how
many Americans are swept up in these warrantless searches.
The government is genuinely concerned about the privacy implications
of calculating the number. I and many of my colleagues, both Democrats
and Republicans, have been willing--and we renewed this in the last few
weeks--to have a discussion about the methodology under consideration.
In the months ahead, the Senate is going to be debating a number of
issues relating to this topic, such as U.S. person searches, reverse
targeting, and the collection of communications that are just about a
target. The Senate is going to discuss how to strengthen oversight by
the Foreign Intelligence Surveillance Court, the Congress, and the
privacy board. The Director of National Intelligence will be right in
the center of the debate.
There is more information that the American people need. There is
more information that this body needs in order to carry out its
responsibility to do real oversight here. The center of these
discussions about the reauthorization of the Foreign Intelligence
Surveillance Act involves one question: How many innocent, law-abiding
Americans have been swept up in this program that has been written and
developed to target foreigners overseas? Congress's judgment about the
impact of section 702 depends on getting this number. An assessment of
the program's constitutionality rests on the understanding of the
impact it has on Americans. A full grasp of the implications of the
warrantless searches of Americans requires knowing how many Americans'
communications are being searched through. Countless questions related
to the reauthorization of the program all require that the public have
this information.
I am just going to close by way of saying what those questions are
because if you want to do real oversight over a critically important
program, you have to have the information to respond to these
questions. The questions are these: Should there be safeguards against
reverse targeting? Should Congress legislate on ``upstream''
collections and the collection of communications about targets, which
raises unique concerns about the collection of the communications of
law-abiding Americans? Are the rules related to the dissemination, use,
and retention of these communications adequate? Should there be limits
on the use of these communications by the FBI for non-intelligence
purposes?
Just think about that one for a minute. What does it mean to people
in our part of the world where people feel that liberty and security
are not mutually exclusive, but they are going to insist on both? What
does it mean to them on the question of whether there ought to be
limits on the use of this information by the FBI for non-intelligence
purposes? That is exactly the kind of question that people are going to
ask.
I am heading home today for townhall meetings in rural areas, and
those are exactly the kind of questions that Oregonians ask. People
understand this is a dangerous time. That is not at issue.
I serve on the Intelligence Committee, along with Senator Feinstein,
and I have been one of the longer serving members. The fact that this
is a dangerous world is not a debatable proposition. There are a lot of
people out there who do not wish our country well. But what I say to
Oregonians and what I will say again this weekend is this: Any
politician who tells you that you have to give up your liberty to have
security is not somebody who is working in your interest because smart
policies give you both.
That is why I started talking about the benefits of strong
encryption--critically important for security. These questions are ones
that I don't think are particularly partisan. That is why a big group
of Democrats and Republicans here and in the other body have been
seeking the information about how many law-abiding Americans get caught
up in these efforts to target a foreigner overseas. We are now at a
critical moment. A government surveillance program, with very obvious
implications for privacy and constitutional rights, is up for
reauthorization by the end of the year. While more information may be
part of the answer, we have to have the best possible estimate to
answer those questions that I just outlined.
The American people want Congress to get to the bottom of questions
that go right to the heart of our having
[[Page S1818]]
policies that promote both their security and their liberty. I think
the public expects a full debate. You can't have a full and real debate
over the Foreign Intelligence Surveillance Act unless you have some
sense of how many law-abiding Americans are getting swept up in these
searches of foreigners.
I believe the American people expect serious oversight over it. They
want assurances that their representatives in Congress have a sense of
what is actually being voted on. After years of secret surveillance
programs being revealed only in the news media, I think the public has
rightly insisted on more openness and more transparency.
So getting the information that I have described today, which will
deal with Senator Coats' top priority of reauthorizing the Foreign
Intelligence Surveillance Act, is a critical first step. Once the
Senate knows the impact of this program on Americans, then you can have
a full and real discussion--a real debate in Congress--with the public
and with the Director of National Intelligence.
I took the view in the committee, despite very much liking Dan Coats
and his being the bipartisan cosponsor of what is still the only
Federal income tax reform proposal we have had in the Senate since the
1986 law was authored, I said that I cannot support any nominee to be
the head of national intelligence if that nominee will not guarantee
that before this reauthorization is brought before the Senate and
brought before the Intelligence Committee, that we have the information
needed to do our job, to do real oversight, to show the American people
it is possible to come up with policies that promote security and
liberty. For that reason, despite my friendship with Senator Coats, I
cannot support the nomination.
I yield the floor.
Mr. VAN HOLLEN. Mr. President, never before has a sitting President
so maligned our intelligence community. President Trump has repeatedly
belittled and ridiculed the work of intelligence officials, calling
their assessments of Russia's hack into U.S. elections ``fake news.''
Over Twitter, President Trump accused intelligence officers of
executing a Nazi-like smear campaign against him. President Trump has
sided with the likes of Julian Assange and Vladimir Putin over our own
intelligence community.
More disturbingly, President Trump seems to hold shallow views on
critical intelligence questions like torture. On the campaign trail,
Mr. Trump constantly vowed to reinstate torture, asserting that only
``stupid people'' would think otherwise. In an interview with the New
York Times, Mr. Trump admitted that he was ``surprised'' that Defense
Secretary Mattis opposed torture, while adding that he would be
``guided by'' mass sentiments on torture. Mr. Trump's pronouncements on
torture are dangerous, irresponsible, and rally our enemies.
Senator Dan Coats has an enormous challenge ahead of him. President
Trump removed the Director of National Intelligence from the National
Security Council, marginalizing the intelligence community's essential
role in informing national security decisions. President Trump
reportedly plans to hire a New York billionaire with close ties to
Steve Bannon to conduct a review of the intelligence agencies, a core
responsibility of the Director of National Intelligence, and Senator
Coats' hardline assessments of Russia may meet with skepticism in a
White House that views Putin so favorably.
I am encouraged by Senator Coats' willingness to work with the
Congress in a bipartisan manner, particularly on probes related to
Russia's hack into our election. I expect Senator Coats to maintain his
commitment to follow the law on enhanced interrogation techniques and
not to seek to change them. For these reasons, I support his nomination
to the Office of the Director of National Intelligence.
Nomination of Herbert McMaster
Mr. CARDIN. Mr. President, I have a tremendous amount of respect for
Lieutenant General McMaster and a great deal of admiration for his
willingness to answer the call of service for his Nation as National
Security Advisor.
So I want to be clear that none of my comments are intended as a
reflection on General McMaster himself.
But I am greatly concerned about the current state of the
organization that General McMaster is being asked to run and that the
way in which the President and his senior advisers appear to be running
it is creating great risk for our Nation.
The President's first National Security Advisor, who lasted less than
a month in office, had failed to register as a foreign agent, a job
that he held throughout the Presidential campaign and into the
transition--so much for America first.
The initial Executive order structuring the National Security Council
system for the new administration deliberately omitted the Chairman of
the Joint Chiefs and the Director of National Intelligence from the
Principals Committee--in other words, a National Security Council
without the insight and guidance of our intelligence community or
military.
Every administration can structure the White House as it sees fit,
but national security without intelligence or military advice is,
frankly, mind-boggling.
At the same time, the NSC was to include Steve Bannon, the
President's political adviser. Although previous White Houses have had
staff from outside the NSC sit in on NSC meetings on occasion and as
appropriate, never before has an administration suggested that the
NSC's work of safeguarding our Nation be subordinate to the political
goals of safeguarding a President's political position and public
opinion ratings.
Alongside the NSC, this White House has established a so-called
Strategic Initiatives Group under Mr. Bannon, which is reportedly
undertaking strategic reviews of U.S. policy on sensitive issues--
including U.S.-Russia relations. Running a shadow NSC with crossing
lines of jurisdiction and authority seems like a recipe for disaster.
So all of this has created an environment of dysfunction and an
organization in severe distress. It is one thing to run a family real
estate company this way, but this is our national security that is at
stake.
If there is a crisis tonight--on the Korean Peninsula, with Russia,
in the Middle East or Persian Gulf--it is far from clear that the NSC
is in a position to provide our senior policymakers with the options
they need and the decision-space necessary to safeguard America in a
dangerous and unpredictable world.
I wish General McMaster all the best, but hope that he is approaching
the challenges of his job with clear-eyed conviction.
Mr. VAN HOLLEN. Mr. President, in a few short months, President Trump
has undermined U.S. credibility and our standing abroad. He has called
for a nuclear arms race, asserted the United States should reinvade
Iraq to take its oil, lavished praise on Vladimir Putin, and slandered
stalwart allies like Australia and Germany. He has issued two Muslim
bans--a move lauded by the Islamic State and condemned by top military,
intelligence, and diplomatic officials of both parties.
President Trump has put our national security apparatus under
enormous stress. He has appointed Steve Bannon, an extremist with the
explicit ambition to ``destroy the state,'' to the National Security
Council--the highest body charged with protecting the state. He has
failed to nominate officials for dozens of crucial national security
positions, hobbling our ability to respond to a future national
security crisis. He has repeatedly denigrated our intelligence
agencies, rejecting findings that clearly demonstrated Russia's role in
his election. He has accused the FBI of breaking the law by wiretapping
Trump Tower, a groundless claim for which he has offered no proof.
LTG H.R. McMaster is a respected military strategist with a
reputation for an independent mind. He has demonstrated throughout his
career that he is willing to challenge and criticize U.S. leadership,
irrespective of party. He does not appear to be sympathetic to the view
of President Trump or Steve Bannon that the United States is at war
with the entire Muslim world. Instead, while commanding U.S. forces in
Iraq, General McMaster told his soldiers: ``Every time you treat an
Iraqi disrespectfully, you are working for the enemy.''
I am concerned with General McMaster's handling of sexual assault
[[Page S1819]]
allegations against two of his cadets at West Point. McMaster's
reluctance to interfere with the training of these cadets, despite
allegations of sexual assault, was in violation of Army policy. I am a
strong supporter of efforts to reform the military's handling of sexual
assault, which is why I cosponsored legislation in the House to pass
new legal protections for victims of assault in the military.
While I remain deeply concerned with the large number of military
officials in senior positions in the Trump administration, I support
General McMaster's retaining his rank while he serves as National
Security Advisor. I do so with the hope that General McMaster will
remain faithful to his reputation for dissent, will challenge President
Trump when he takes a dangerous approach to the world, will restore
order to the National Security Council, and will steward a foreign
policy that makes America safer.
Mr. WYDEN. 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. UDALL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Freedom of the Press
Mr. UDALL. Mr. President, this week is Sunshine Week, a week when we
applaud open government and when we celebrate the institutions that
hold government accountable. Throughout our Nation's history, one of
the most important has been the press, the free press. Donald Trump, as
candidate and President, has repeatedly attacked the press. He has
called it the ``enemy of the people,'' he has labeled the national
media outlets as ``fake news,'' and he has criticized respected
reporters who have reported for years.
He has singled out mainstream newspapers like the New York Times,
Politico, and the Los Angeles Times, and television outlets like ABC,
NBC, CBS, CNN. That is how this President operates. He acts like a
bully, and not just with the media. He attacks the courts when article
III judges disagree with him, and when they find he is breaking the
law. He attacks sitting judges for deciding against him, even those
appointed by Republican Presidents.
Without basis, he attacks our intelligence agencies, and he even
demeans career public servants who risk their lives to keep our Nation
safe. The President's goal is obvious, to undermine the institutions in
our country who threaten him, who criticize him. Authoritarians have
used this strategy for centuries and continue to do so today in
countries where democracy is weak or nonexistent and where autocracy or
kleptocracy is strong.
But this is the United States. We are an example to the world of
democratic principles and action. The President's repeated attacks on
our democratic institutions need to stop and they need to stop now. A
free and robust press is critical for democracy to work, period, end of
story. Our Nation's history of a free press dates back to our founding.
Free press in the colonial United States developed in reaction to
severe restrictions on free speech in England.
During the latter half of the 17th century, all books and articles
were required to be licensed by the government to be published. Then,
``seditious libel''--bringing ``hatred or contempt'' upon the Crown or
the Parliament by written word--was a criminal offense. So to speak
against the Crown was a criminal offense. Truth was not a defense.
No publication could criticize the Crown or the government, even if
it was accurate. The first newspapers in the Colonies operated under
licenses from the colonial Governor. But by 1721, James Franklin,
Benjamin Franklin's older brother, was publishing one of the first
colonial independent newspapers, the New England Courant, in Boston.
Ben Franklin was his apprentice, typesetter, and sometimes
contributed under pen names. Several years later, Ben Franklin began
publishing his own independent newspaper, the Pennsylvania Gazette. His
newspaper became the most popular in the Colonies and was published
until 1800.
By 1735, the tenets of seditious libel were coming undone. John Peter
Zenger, the publisher of the New York Weekly Journal, ran articles
harshly critical of the colonial government. Zenger was arrested and
tried for libel. While he admitted he published the articles, his
lawyer argued truth was a defense. The press, the lawyer argued, has
``a liberty both of exposing and opposing tyrannical power by speaking
and writing the truth.''
The judge, however, instructed the jury as to the law at the time,
that Zenger must be found guilty if he published the articles, whether
truthful or not, but after 10 minutes of deliberation, the jury
acquitted Zenger. These were some of the beginnings of a free press in
our Nation.
The first rights in the Bill of Rights are freedom of religion, the
press, speech, petition, and assembly. The press, as an institution, is
expressly protected by the Constitution. In 1789, the drafters of the
Bill of Rights understood that a free press was essential to the growth
and success of our new democracy. They understood that debate,
disagreement, the free flow of ideas, make an informed public, that the
press helps educate voters.
They understood all too well that government power needed to be
checked and that the press holds the powerful in check by investigating
and exposing arbitrary conduct, abuse, and corruption. A democracy
cannot exist without a free press. It is as simple as that, but our
President does not seem to understand this or he does not care.
According to him, the press is ``dishonest,'' ``not good people,''
``sleazy,'' and, ``among the worst human beings.'' Those are all quotes
by our President.
Established press organizations are the ``fake news,'' and a few
weeks ago he declared the press ``an enemy of the people.'' We have not
heard attacks like this since Watergate, and even then, it wasn't so
much so fast. The President's subordinates are now given license to
accuse and to limit press access.
Chief Strategist Steve Bannon said the press should ``keep its mouth
shut and just listen for a while.'' This quote from Mr. Bannon has
extra significance today because he is no longer the head of a
rightwing media company. In a controversial move, President Trump
issued an Executive order to add him to the National Security Council's
Principal's Committee.
Today, we are going to vote on the nomination of General McMaster to
retain his three-star general status while serving as the head of the
National Security Council. I do not believe a political extremist like
Mr. Bannon should serve on the Council. At a minimum, General McMaster
should direct Mr. Bannon to stop attacking the free press while serving
on the Council.
Senior adviser Kellyanne Conway called for media organizations to
fire reporters who criticized Candidate Trump. Press Secretary Shawn
Spicer barred the New York Times and the Los Angeles Times, BuzzFeed,
and Politico from a press conference, and the Secretary of State will
now travel without the press corps, disregarding a decades-old
practice.
Now, don't get me wrong. The press does not always get it right. They
make mistakes. News organizations have their biases. Mistakes should be
corrected and bias should be tempered by using accepted journalistic
methods and professional judgment and following journalism's ethics
code.
Mistakes and the exercise of professional judgment are not the same
thing as reporting ``fake news.'' The President's Republican colleagues
have been too silent in the face of attacks. Few in Congress have stood
up against the President's hostility to the press. Government officials
are afraid to disagree. Just last week, at a Senate Commerce Committee
hearing, I asked the FCC Chair, Mr. Pai, a yes or no question, does he
agree with the President that the press is the enemy of the people.
He did not engage. He would not answer. He let stand the President's
remarks. The President's characterization of the press as the enemy is
reminiscent of President Nixon, when Nixon said: ``Never forget. The
press is the enemy. The press is the enemy. The press is the enemy,''
as recorded on his secret tapes.
The press was Nixon's enemy because the press exposed his criminal
conduct which led to his resignation. The press is Trump's enemy
because the press exposes his and his associates' ties to
[[Page S1820]]
Russia, the President's myriad Trump organization conflicts of
interest, his constant barrage of misrepresentations of fact.
Nixon's Press Secretary called the Washington Post investigative
reporting shoddy and shabby journalism. Like President Trump's
accusation of fake news, that same Post reporting won the paper a
Pulitzer Prize.
Watergate was a break-in of the Democratic National Committee during
the Presidential campaign. Nixon ordered his Chief of Staff to have the
CIA block the FBI's investigation into the source of the funding for
the Watergate burglary. During this last Presidential election, we had
a cyber break-in of the DNC. Even after 17 U.S. intelligence agencies
concluded Russia hacked the DNC to sway the election, Candidate Trump
refused to accept their analysis.
The President's Chief of Staff pressured the FBI to publicly deny
that Trump associates had contact with the Russians, while his Chief
Counsel reportedly breached the firewall seeking information from the
FBI about an investigation into the President and his associates. Since
the press began to look hard at the ties between President Trump and
the Trump organization, his associates and Russia, the President has
not let up on his criticism. Just last week, the President threatened
by tweet as follows:
It is amazing how rude much of the media is to my very hard
working representatives. Be nice, you will do much better!
The job of the press is not to be nice. It is to gather the facts and
report them. Now that the President of the United States has called the
reputable U.S. news organizations fake news, others are doing the same.
Russia's Foreign Ministry spokesman recently accused a CNN reporter of
spreading ``fake news'' because the reporter asked about accusations
from U.S. officials that the Russian Ambassador is a spy.
This is a dangerous path. Putin has throttled an independent press in
the Russian Federation, imposing restriction after restriction on the
news media. Reporters have been harassed, threatened, and jailed. The
numbers of truly independent media organizations in Russia have been
reduced to a very few, and they have been replaced by state-owned,
state-run news media, like RT, formerly known as Russia Today, a
propaganda bullhorn for Putin, according to Secretary John Kerry.
The President admires Putin as a--and I will quote the President
here--``strong leader.'' Putin has used his strength to silence an
independent press. We do not want our press silenced.
Justice Brandeis, in a famous defense of free speech in a 1927 First
Amendment case, said: ``[T]hose who won our independence by revolution
were not cowards. They did not fear political liberty.''
Does President Trump fear political liberty?
The irony of the President's accusations of ``fake news'' is that he
himself has spread misinformation and fanned the flames of internet-
driven lies, from questioning President Obama's citizenship, to his
frivolous claim that millions of people committed voter fraud and that
he really won the popular vote--that is the President's claim, that he
really won the popular vote--to President Trump's unsubstantiated
accusation that President Obama wiretapped Trump Tower.
We have entered into an era in U.S. politics never seen before in my
lifetime. We cannot allow this to be sanitized or explained away. The
phrase ``alternative facts'' has become a national joke because it
sounds like something from George Orwell's ``1984.''
It is not acceptable for a President to falsify, misrepresent, or
flatout lie. The President's party in Congress should not allow this.
They should not look the other way and continue to profess that the
emperor's clothes are grand.
Reacting to Mr. Trump's attacks on the press, President George W.
Bush responded:
I consider the media to be indispensable to democracy. We
need an independent media to hold people accountable. Power
can be very addictive and corrosive . . . and it's important
for the media to hold to account people who abuse their
power--whether it be here or elsewhere.
That was President George W. Bush's recent comment.
President Bush's prescription for democracy in 2017 is the same as
the drafters of the First Amendment in 1789: A free and independent and
robust media is essential to democracy, and any broad-based attack on
the press is an attack directly on our democracy.
There is one thing President Trump must understand: The press won't
go away. They won't stop reporting on the actions he takes and on the
decisions he makes. He can spend the next 4 years attacking the press,
but they will still be there--just as they were after Nixon resigned.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SULLIVAN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Ernst). Without objection, it is so
ordered.
Tribute to Pastor Evelyn Erbele
Mr. SULLIVAN. Madam President, every week for the past few months, I
have been coming down to the Senate floor to recognize a special
Alaskan, someone who makes my State--what we believe is the most
beautiful and unique State in our country--a better place for all of
us. I call this person our Alaskan of the Week.
Last week, I had the opportunity to recognize Glen Hanson, who
volunteers his time by flying in what we refer to as the Iditarod Air
Force--members of the Alaska volunteer community pilots who fly
supplies in for the Last Great Race.
I know the pages are really interested in the Last Great Race. So,
just as a quick update, we had a winner. It is still going on, but one
musher, Mitch Seavey, crossed the finish line in Nome, AK, in record
time. I congratulate Mitch and all of the members of the Iditarod Air
Force who are still out there, flying, when it is 30, 40, below zero.
It is a tough race, a real tough race. Iowans, I am sure, could do well
in it but not a lot of other Americans.
Today, I want to take my colleagues and viewers to a very different
place in Alaska--about 1,300 miles southeast of Nome, where all the
Iditarod action is going on, really almost a world away--to a beautiful
city called Ketchikan, AK.
Ketchikan is the first port city that people will visit when they
take the Alaska Marine Highway's Inside Passage up to Alaska. It is a
trip that I encourage everybody to take. It is beautiful. Flanked by
the towering Tongass National Forest, it is a place full of life and
spirit, mountains, forests, lots of rain, lots of salmon, and lots of
jaw-dropping scenery.
Yet, like most places across our country, it has its challenges, and
it has a challenge with homelessness, like many communities in America
and Alaska. Luckily, for all of us, Ketchikan is also home to a very
caring community that has set its sights on helping its fellow
Alaskans. One of these people is Pastor Evelyn Erbele, our Alaskan of
the Week, who has dedicated her life to helping others.
Evelyn is the copastor with her husband Terry of the First United
Methodist Church of Ketchikan. There is a day shelter in the church's
social hall, which provides a hot meal, shower, clean clothes, and a
place for the community's homeless to go every day of the week.
Oftentimes when we think of homelessness, we think of people not
having a place to sleep, but it is also important to remember that
being homeless means having no place to go during the day. First City
Homeless Services--Day Shelter gives people a place to go during the
day. Pastor Evelyn oversees that day shelter. According to the manager
of the shelter, Chris Alvarado, who himself has been homeless, she does
so with commitment and with kindness and with compassion.
``She has a heart of gold and gives 100 percent,'' said one resident
of Ketchikan about Evelyn.
Evelyn met her husband Terry in Seward, AK, where she was a nurse in
1976. From Seward, they set out on a journey to help people around the
world--Nigeria, Lithuania, Russia.
In 2009, Evelyn--now with a Ph.D. in theology and ordained by the
Methodist Church--went up the Alaskan
[[Page S1821]]
Highway from Bellingham to Ketchikan with her husband. She didn't know
when she accepted the job at the Methodist Church in Ketchikan as
copastor that she would be overseeing the day shelter. At first,
according to her, the work was a bit unsettling. ``I never
intentionally walked side by side with people who are homeless,'' she
said. She continued: ``Initially, I may have been biased. I was using
the word `them' when I would describe the people I was working with.
One day, the Lord said to me, Evelyn, you are them. You are my child no
less or no more than they are.'' She said that after hearing that
voice, she realized she wasn't working with ``them'' anymore. ``I was
working with men and women who were in a place that I easily could have
been.''
In her years working to help the homeless in her community in
Ketchikan, she realized that not everybody who is homeless fits neatly
into ``one basket.'' There are lots of reasons for homelessness, she
said, and the homeless may have many, many faces: men, women, children,
families, the old, and the young.
As the Presiding Officer knows, homelessness is a big challenge
across our Nation. On any given day, tens of thousands of Americans--
hundreds of thousands--don't have a permanent place to call home. Of
course, the best way to address this is to have a strong economy and
job opportunities, and that is what we need to be focusing on here in
the Senate. But we also need people like Pastor Evelyn not only in
Alaska but across the country, who are tireless advocates for helping
the homeless. I thank all of them. I especially thank her, and I thank
her for being our Alaskan of the Week.
Madam President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SCHUMER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Nomination of Herbert McMaster
Mr. SCHUMER. Madam President, since coming to office, the President's
National Security Council has experienced more turmoil than any in
history at this stage in a Presidency. The President's first National
Security Advisor and head of the NSC, Michael Flynn, was fired after
only a month in his position. The Council itself has been reshaped in
ways that concern all of us. Permanent postings for the Chairman of the
Joint Chiefs of Staff and the Director of the National Intelligence
Agency have been removed and a permanent seat has been installed for
White House Political Adviser Steve Bannon.
This organization is a disturbing and profound departure from past
administrations. On the most sensitive matters of national security,
the President should be relying on the informed counsel of members of
the intelligence and military communities, not political advisers who
made their careers running a White nationalist website.
The Chairman of the Joint Chiefs of Staff is the President's primary
military adviser and, along with that of the Director of National
Intelligence, is the only independent, apolitical voice on the NSC.
President Trump's move to strip them of their seats is baffling and
potentially endangers our national security. The President has
installed in their stead one of the most strident, ideological voices
in his orbit.
On the most sensitive issues of national security, we have to have
fact-based decisions. The President has to get the most dispassionate
and accurate advice. With all due respect, that is not Mr. Bannon's
forte. His installation on the principals list of the NSC moves it
further away from what it needs to be and closer toward a shadow
council of a dangerously ideological West Wing.
The bottom line is, this decision was poorly thought out and ill-
conceived. It puts a filter on the information going to the President
and will make us less safe. My concerns are shared by Members on both
sides of the aisle. I know that from conversations I have had with
some.
It has special relevance today because we are about to vote on
reappointing H.R. McMaster to lieutenant general, who will be the next
head of the NSC. General McMaster, by all accounts, will have a
grounding presence in the national security apparatus of the White
House. I have met him. I have a great deal of respect for both his
integrity and his abilities, but I remain deeply concerned that General
McMaster's judgment may not be followed and instead the fevered dreams
of Mr. Bannon will influence the most sensitive national security
discussions and decisions. It has been reported he doesn't want to see
NATO exist or the European Union. Those are political decisions in a
body charged with giving the President advice on security.
So this should concern all of us, especially Lieutenant General
McMaster.
Madam President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. FLAKE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Strange). Without objection, it is so
ordered.
Nomination of Neil Gorsuch
Mr. FLAKE. Mr. President, as I did 2 weeks ago and will continue to
do until he is confirmed, I rise to support the nomination of Neil
Gorsuch to serve on the Supreme Court. Judge Gorsuch is an
accomplished, mainstream jurist, and I look forward to helping to make
sure that he receives an up-or-down vote on the Senate floor.
Next week, my colleagues and I on the Judiciary Committee will hold
confirmation hearings on Judge Gorsuch. I look forward to hearing his
testimony. I am confident that he will impress the country with his
knowledge of and respect for the law, just as he has impressed me and
my colleagues.
But before the hearings get under way, I thought I would use this
opportunity today to highlight an additional aspect of his life and his
jurisprudence that make him an ideal nominee to serve on the High
Court. So far I have spoken on the floor about his fitness to fill
Justice Scalia's seat, as well as his defense of the separation of
powers and his support for religious liberty. Today I would like to
discuss a more personal aspect of Judge Gorsuch's background--the fact
that he is a westerner. As an Arizonan, I cannot overstate how
important it will be to have a fellow westerner serving on the Supreme
Court.
Where you are from influences your understanding of cultural and
regional sensitivities. When you look at the current makeup of the
Supreme Court, there is an unmistakable lack of geographic diversity.
Of the eight current Justices, five of them were born in New York or
New Jersey, and that number was six before Judge Scalia's passing.
Granted, Justice Kennedy is from Northern California, but to be frank,
much of Northern California is about as culturally western as Justice
Breyer's hometown of Boston.
The Supreme Court is in desperate need of a western perspective.
Judge Gorsuch fits that bill. When I had the opportunity to meet Judge
Gorsuch in my office last month, we discussed our respective western
backgrounds. I talked to him about my days growing up on a cattle ranch
in rural Arizona. He told me that his heart has always been in the
American West. You can learn a lot about a person by how they spend
their time with their friends and their family, and there is no
mistaking this aspect with Judge Gorsuch. He is a westerner through and
through.
He told me about his home outside of Boulder, where his daughters
raise and show chickens and goats. I was pleased to learn that each
year he takes his law clerks to the National Western Stock Show in
Denver, one of the Nation's largest rodeos. By now, I think we have all
seen the picture of him fly fishing with Judge Scalia. While all this
demonstrates how much he has embraced the western lifestyle, what makes
Judge Gorsuch a true westerner is more than just where he lives or
where his personal interests are. Judge Gorsuch's western values are
evident in his jurisprudence, which reflects a strong commitment to
public service. Arizona has had its share of distinguished public
servants. In fact, it was from this very desk that the late Barry
Goldwater, one of Arizona's favorite sons, steered the public policy
debate
[[Page S1822]]
for years after he chose to leave a successful career in the private
sector. Judge Gorsuch's career reflects the same ethos.
Early on, a young Neil Gorsuch rocketed to the top of the legal
profession, becoming a partner in one of Washington's most elite law
firms. But instead of enjoying the comforts of a lucrative private
sector career, he left it all behind for a high-responsibility, low-
profile job at the Department of Justice.
After his time at DOJ, Neil Gorsuch could have easily retired or
returned to a white-shoe legal practice. Instead, he returned to his
home State of Colorado to serve as a judge on the U.S. Court of Appeals
for the Tenth Circuit. Throughout his tenure on the Federal bench,
Judge Gorsuch's western disposition has shone through in his
jurisprudence.
I have already spoken of his skepticism toward the administrative
state, with its executive bureaucracies, which, he cautions, ``swallow
huge amounts of core judicial and legislative power and concentrate
Federal power in a way that seems more than a little difficult to
square with the Constitution of the framers' design.''
He shares a healthy skepticism over an overly intrusive and heavy-
handed bureaucracy with millions of his Federal westerners. Judge
Gorsuch recognizes how Federal regulations interfere with the ability
of Western States to govern themselves, whether it is a former
administration's Clean Power Plan, its ozone rules, or even management
of the Mexican gray wolf.
In numerous opinions, Judge Gorsuch has given voice to many of the
frustrations experienced by his western neighbors. From his criticism
of an overly assertive DC court that often feels compelled to intervene
from 2,000 miles away to his recognition of excessive litigation that
arises from the complexities of split-estate property rights out West,
he speaks our language.
These are perspectives any westerner is familiar with, but they may
not be obvious to others, including folks from New York and New Jersey.
If confirmed, Judge Gorsuch will already bring generational and
religious diversity to the Court. Perhaps more than anything, it will
be his western perspective that most enriches the debate in the years
to come.
As I have said before, Judge Gorsuch deserves fair consideration by
those who serve in this body, and he deserves an up-or-down vote on the
Senate floor. He should be confirmed overwhelmingly, and I am confident
that he will be.
Joining us on the floor today are several members of the Senate from
Western States. I see that the Senator from Wyoming has joined us. I
think he has some thoughts about Neil Gorsuch and his nomination to the
Court.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. BARRASSO. Mr. President, joining my colleague here on the floor,
I agree with all of the comments the Senator from Arizona has made.
They are interesting because as to the history of the State of the
Senator from Arizona and his family history, Judge Gorsuch has a
similar history, to the point that his great-grandfather built a hotel
in Wyoming called the Wolf Hotel, in Saratoga, WY. I found a picture of
that hotel from 1878, which was 12 years before Wyoming became a State.
I got that picture from the American history museum at the University
of Wyoming and got a copy of the picture and gave it to Judge Gorsuch.
In front of the hotel in 1878, there was a stagecoach with six horses
lined up ahead of it. The Wolf Hotel was a halfway stop on the
stagecoach line between a couple of communities in Wyoming. They were
about 40 miles apart. So that is the heritage from which Judge Gorsuch
comes.
I think that western heritage is important. But I think that
additionally important is what the Senator referred to--his judicial
temperament, being such a mainstream member of the judiciary, and this
general belief inherent within him that the role of a judge is to apply
the law, not to legislate from the bench.
We have seen so much legislating from the bench. I think you just
don't get that if you take somebody from the Rocky Mountain West who
has this view of the Nation and an understanding of the rule of law and
the Constitution.
So I think we are going to see that when the Senate Judiciary
Committee begins its hearings next week on Judge Gorsuch's nomination
to the Supreme Court. I visited with him, reviewed his writings, and
then compared it to what I saw when I visited with Justice Scalia when
he came to Wyoming. The Senator from Arizona mentioned the picture of
the two working together, fishing together.
I just think he is the right person to continue that incredible
legacy of Justice Scalia.
Mr. FLAKE. Will the Senator yield?
Mr. BARRASSO. Yes.
Mr. FLAKE. You point out the sensitivities that you have when you
come from the West. A lot of it has to do with, if you are in a rural
area in particular, you are--as my family grew up--working on the land.
Much of that land is either owned by or controlled by the Federal
Government, the State government, or Tribal governments in Arizona's
case. In fact, 85 percent of the State of Arizona is publicly owned. So
when you live in the West and you work the land on a ranch or farm, you
are dealing specifically with Federal regulators and Federal property
managers. I think those who were raised in the West and have lived here
understand the impact of the Federal Government's decisions. The
administrative state has an outsized impact on those who live in the
West, and I think that is evident in the jurisprudence you see from
Judge Gorsuch.
How much of Wyoming is publicly owned?
Mr. BARRASSO. Well, it is about 50-50. But when you talk about the
heavy hand of a bureaucratic government and the impact on the lives of
the people who live there, it is dramatic. It can be very punishing, as
we have seen over the last 8 years with regulations that have come out
of agencies--sometimes, I believe, in defiance of the law, sometimes
reversed by the Supreme Court.
That is why I think it is critical to have Neil Gorsuch on the
Supreme Court, because he is someone who realizes that the Constitution
is a legal document--not a living document, not built for flexibility,
but really a rigid legal document. That is where I believe he stands.
That is what his writings indicate. It is the sort of thing we have
seen from him. I visited with him, and other Members have. These are
the things we read about.
With regard to his writings over the years, this is a judge who has
faithfully applied the law--applied the law, focusing on the
Constitution. He has not been afraid to rule against the government or
for unpopular parties when the law demands it because he is going to go
right back to the law. I believe his opinions show great reverence for
all of the Constitution--a key respect for the importance of the
separation of powers.
I support his nomination completely. It is interesting, because when
he was nominated for the position he currently holds, the Democratic
Senator from Colorado--and I am expecting Senator Cory Gardner to be
here in a little bit to talk about the quote from Ken Salazar, the
former Senator from Colorado, who talked about what a wonderful man
Judge Gorsuch was and how he should be put onto that bench. He was
unanimously confirmed here in the Senate.
I have full confidence in Judge Gorsuch as a son of the West, as the
only Justice from the Rocky Mountain West who would be on the Court.
Specifically, though, I would support him no matter where he was from
because of his belief that it is the role of a judge and a justice to
apply the law, not to legislate from the bench, which I think goes
above and beyond where someone is from, what their background may be.
But I will just tell you that his background, combined with his
philosophy and mainstream approach to the law, is exactly what we need
now in 2017 on the U.S. Supreme Court. I believe he deserves an up-or-
down vote. I believe he will be confirmed as people get a chance to see
him, get to know him better.
I see I am joined on the floor by another colleague, also from the
Rocky Mountain West, the Senator from Montana. You have heard from
Arizona, Wyoming, and now Montana. I would ask him about his thoughts
about this nomination by President Trump of Neil Gorsuch to the Supreme
Court.
The PRESIDING OFFICER. The Senator from Montana.
[[Page S1823]]
Mr. DAINES. Mr. President, I want to thank my esteemed colleague from
Wyoming, Senator Barrasso, for his comments. He shared many of the same
views I have.
As I think about the job I do as a Senator--perhaps one of the most
important jobs we have as Senators is approving a Supreme Court
Justice. An Associate Justice of the Supreme Court can serve an average
of 27 years. We think about Justice Scalia; he served 30 years. Neil
Gorsuch is 49 years old. God willing, he probably will serve 30 years
or more, perhaps. Think about that. My wife and I have four children.
They are going through the college years and so forth. They are in
their early and midtwenties. They will likely be grandparents when
Judge Gorsuch wraps up his career on the Supreme Court, assuming he is
approved. That is why a decision like this about whom to vote for, whom
to stand behind, whom to stand with is so important. It is not just for
today, it is for our children and our grandchildren.
The people want a Supreme Court Justice who does not legislate from
the bench. The people want a Supreme Court Justice who upholds the rule
of law and follows the Constitution. The people want a Supreme Court
Justice with a record of constitutional jurisprudence and legal
restraint to match what we saw from Justice Antonin Scalia. The people
want a Supreme Court Justice with the academic credentials, who is well
prepared to serve the American people on our highest Court, to wrestle
with some of the most complicated issues that the High Court wrestles
with.
When President Trump announced that he was appointing Judge Neil
Gorsuch to the U.S. Supreme Court, the American people knew he was
truly a supreme pick. He has a brilliant legal mind. He understands the
role a judge plays in our judicial system--to interpret the law and not
to legislate from the bench. In fact, on the night he was announced,
when President Trump revealed his pick, I was at the White House, and I
heard Judge Gorsuch say: ``A judge who likes every outcome he reaches
is very likely a bad judge, stretching for results he prefers rather
than those the law demands.'' That is the humility of a great judge.
Judge Gorsuch has impeccable legal qualifications that demonstrate he
will be the type of Justice every American deserves to have on the
highest Court. He graduated from Harvard Law School. He was a Harry
Truman Scholar, graduated with honors in 1991. He earned his law degree
and then attended Oxford University as a Marshall Scholar and received
his doctorate degree in 2004 from Oxford.
As we say out West, and as a Montanan, I have to say I am thrilled to
see somebody from Colorado be nominated for the Supreme Court. We say
out West: Go get a good education and then get over it. And he brings
that kind of humility to the bench. He understands that he is beneath
the law, he is subject to the law. He is there to interpret the law,
not to make the law.
He clerked for Justice Byron White. He clerked for Justice Kennedy of
the Supreme Court of the United States. In fact, in 2006, Judge Gorsuch
was nominated by then-President Bush to the Tenth Circuit in Denver,
CO. He was confirmed without any opposition, including the support of
11 current Democratic Senators. In fact, some of those Democrats
included Harvard Law classmate Barack Obama, Vice President Joe Biden,
and the current minority leader, Chuck Schumer. During his time as a
judge on the Tenth Circuit, he has built a solid reputation as a
respected jurist with a very distinguished record.
One thing about serving on the Tenth Circuit Court for 10 years: You
can run, but you can't hide. He has left a track record. It is an
impressive track record. It is a consistent record of defending the
Constitution, including respecting the separation of powers and
respecting federalism and the Bill of Rights to protect every American
from government overreach and government abuse.
When I had the opportunity to sit down with Judge Gorsuch, it was
back in early February. We spoke about the role of government and
federalism. We spoke about the Second Amendment. We spoke about
protecting life and upholding our civil liberties. We spoke about our
shared western values, mine as a native Montanan, his as a native
Coloradan, both of us westerners. I know he understands our way of
life. He understands Montana values. In fact, his face lit up as we
talked about the love of the outdoors and his passion for hiking and
fishing.
As chairman of the Western Caucus, it is important to me to have
someone who understands western values, someone who understands the
impact the law and his decisions will have on the West.
As westerners, we fight to protect our Fourth Amendment rights. We
champion federalism so that power not expressly given to the Federal
Government in the Constitution is returned back to the States and to
the people. We will tirelessly fight to protect the Second Amendment.
These are western values.
By the way, the Second Amendment is not primarily about hunting. Our
Founding Fathers were not thinking about deer hunting or elk hunting
when they were discussing the Second Amendment. It was about liberty.
It was about freedom. These are western values. Judge Gorsuch's
background and record strongly suggest that he recognizes and adheres
to these values. He will uphold the law. He will rightfully check the
administration and Congress when their actions are not done under the
law, like President Obama's EPA power plan or the WOTUS rule. These are
actions that cripple western economies, and they are politically
charged.
I would also like to mention that Senator Cory Gardner of Colorado
and I were just at the White House meeting, just an hour ago. We were
at the White House meeting with over a dozen Tribes who represent
hundreds of other Tribes. We were there to discuss our support for Neil
Gorsuch to be a Supreme Court Justice. I can tell you, it was great to
be there with one of my hometown Tribes from Montana, the CSKT. They
have endorsed Neil Gorsuch. They understand that we need a mainstream,
commonsense westerner on the Supreme Court.
By the way, when you look at Neil Gorsuch's record on Indian Country
issues, as a member of the Tenth Circuit Court for 10 years, he has a
track record of ruling on some very complicated issues that face Indian
Country. He understands sovereignty. That is very important. That is
why you are seeing Tribes endorsing Judge Gorsuch.
More importantly, the American people deserve nine members on the
Supreme Court. Neil Gorsuch is the mainstream judge the American people
want and deserve to fill out the Court.
I am looking forward to what will happen next week in those hearings.
You are going to see a very, very bright, a very, very thoughtful, a
very, very kind, and a very, very humble jurist who understands and
upholds the rule of law. I am excited for our country that we have such
a phenomenal nominee. I look forward to casting my vote to confirm him
to the highest Court in our great country.
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. McCAIN. 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. McCAIN. Mr. President, what is the parliamentary situation right
now?
The PRESIDING OFFICER. The Senate is considering the Coats
nomination.
Mr. McCAIN. Mr. President, I understand that we will be voting in
about 10 minutes; is that correct?
The PRESIDING OFFICER. That is correct, sir.
Mr. McCAIN. Mr. President, I have had the great honor and privilege
of knowing the nominee to be our Director of National Intelligence for
many years. In fact, I came to the House of Representatives in the
election of 1984, and I had the honor of knowing Dan Coats beginning at
that time.
As is well known, Dan Coats left the Senate and became our Ambassador
to Germany, where he did an outstanding job. He came back to the U.S.
Senate and served in this body with distinction and honor. Now he goes
on to serve as the Director of National Intelligence.
I could argue that a dedicated, experienced, knowledgeable, and
courageous Director of National Intelligence
[[Page S1824]]
is now needed more than at any time that I can remember in the last
many years.
With divisions within the intelligence community, there are
challenges to the credibility of the intelligence community along the
lines that I have never seen. There are questions about the activities
of the intelligence community. For example, the President of the United
States alleges that Trump Tower was ``wiretapped,'' in his words, by
the previous administration, and we see the former Director of National
Intelligence both before the Congress and on national television
stating that those allegations are not true.
There are probably more questions and more controversy surrounding
our intelligence services than at any time since anyone can remember,
since Watergate. So this is a perfect time, in my view, for Dan Coats
to assume the highest responsibilities of our Director of National
Intelligence. He has the respect and indeed affection of Members on
both sides of the aisle because of his successful efforts at working in
a bipartisan fashion. He served on the Intelligence Committee. He
served on that committee in a very dedicated and knowledgeable fashion.
I hope my colleagues will unanimously vote in favor of our former
colleague. Both sides of the aisle know him, and we know him well. I
wish I had some of his qualities of congeniality and pleasantry. He has
always been respectful of other views. Even in the fiercest debates
that we might have, he has always been respectful of those who
disagree. So he comes to the job with the much needed credibility that
will make him immediately effective.
Let's be frank. The intelligence communities are probably under
greater attack in a whole variety of ways, both on whether the American
people trust them to do the job that they are doing or whether they
have become a partisan organization. I think that with the respect and
appreciation and affection that those of us who had the privilege of
knowing him--on both sides of the aisle--and knowing what an honorable
and decent person he is, he will not only serve as an effective
Director of National Intelligence, but he will serve to restore
credibility.
God knows we need credibility at this time, as we see the Russians
trying to affect the outcome of our election, as we see today the
Russians trying to affect the French election and possibly the German
election, as we see unprecedented cyber attacks--more than at any time
in the past. With the challenge of cyber alone, where our adversaries
or our potential adversaries are equal to or even, in some cases, more
capable of exercising their abilities and capabilities in the cyber
realm, then we are in a very difficult and challenging struggle.
That is why I think that many times in history, not only does the man
make the job but the job makes the man. I am confident, in the case of
Senator Dan Coats, that will be the case.
I thank the Democratic leader for allowing this vote to take place so
Dan Coats can get to work immediately.
I urge my colleagues to offer their support with their vote for this
nomination of a great and good and gentle man who has again volunteered
to serve his Nation, for which all of us should be appreciative, and I
am sure we are.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. BARRASSO. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is, Will the Senate advise and consent to the Coats
nomination?
Mr. BARRASSO. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant bill clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Tennessee (Mr. Alexander), the Senator from Tennessee (Mr.
Corker), and the Senator from Georgia (Mr. Isakson).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea'' and the Senator from Tennessee (Mr.
Corker) would have voted ``yea.''
The PRESIDING OFFICER (Mr. Cotton). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 85, nays 12, as follows:
[Rollcall Vote No. 89 Ex.]
YEAS--85
Barrasso
Bennet
Blumenthal
Blunt
Boozman
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Cochran
Collins
Coons
Cornyn
Cortez Masto
Cotton
Crapo
Cruz
Daines
Donnelly
Durbin
Enzi
Ernst
Feinstein
Fischer
Flake
Franken
Gardner
Graham
Grassley
Hassan
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Johnson
Kaine
Kennedy
King
Klobuchar
Lankford
Leahy
Lee
Manchin
McCain
McCaskill
McConnell
Menendez
Moran
Murkowski
Murphy
Murray
Nelson
Perdue
Peters
Portman
Reed
Risch
Roberts
Rounds
Rubio
Sasse
Schatz
Schumer
Scott
Shaheen
Shelby
Stabenow
Strange
Sullivan
Tester
Thune
Tillis
Toomey
Van Hollen
Warner
Whitehouse
Wicker
Young
NAYS--12
Baldwin
Booker
Duckworth
Gillibrand
Harris
Markey
Merkley
Paul
Sanders
Udall
Warren
Wyden
NOT VOTING--3
Alexander
Corker
Isakson
The nomination was confirmed.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I move to reconsider the vote, and I move
to table the motion to reconsider.
The PRESIDING OFFICER. The question is on agreeing to the motion.
The motion was agreed to.
