[Congressional Record Volume 166, Number 90 (Wednesday, May 13, 2020)]
[Senate]
[Pages S2387-S2388]
FISA
Mr. McCONNELL. Madam President, speaking of keeping our Nation safe,
the Senate has work of our own to do this week to ensure the safety and
security of our Nation. In addition to fighting this historic pandemic,
it is
[[Page S2388]]
also our job to keep sight of the other threats to national security
that are still evolving, independent of COVID-19.
Far from any frontline hospital, the PRC's domineering approach to
contested territories in the South China Sea is keeping the men and
women of the U.S. Seventh Fleet on high alert.
From dark corners of cyber space, Russia busies our national security
and intelligence experts with a steady flow of infectious propaganda
and disinformation.
From the Mediterranean to the Gulf of Aden, Iran continues to expand
its regional influence, sow division, promote terror, and threaten
America and its partners.
And across Afghanistan, the Taliban, al-Qaida, and ISIS continue to
undermine the work of an international coalition and a representative
government.
These are just a few of the global threats that were with us long
before the COVID-19 crisis, and they have only gotten worse during the
pandemic.
History reminds us that when great nations confront profound
challenges at home, their enemies and competitors do not pause their
own efforts until the situation becomes more stable. Rather, from
Beijing to Moscow, to caves in the Middle East, our adversaries would
be tickled pink if the coronavirus caused the United States to lose our
ability to multitask.
Some of our Democratic colleagues have implied recently that it is
beneath the Senate--beneath the Senate--to spend time on any business
that does not exclusively pertain to the pandemic. I could not disagree
more strongly. Common sense tells us that this crisis demands more
vigilance on the other fronts of national security, not less. When we
take our oaths of office as U.S. Senators, we swear to defend the
Constitution against all enemies, foreign and domestic. This
coronavirus may have shoved its way to the top of that list, but the
list is still a long one, indeed.
Unfortunately, for several weeks now, our Nation has been less
prepared than normal to defend ourselves against those who wish us
harm, and it is not because of the coronavirus. It is because House
Democrats have failed to act.
Back in March, the Senate passed a clean short-term extension of key
authorities under the Foreign Intelligence Surveillance Act, while a
broader renegotiation was under way. After the shameful abuses of the
FISA process that marred the 2016 Presidential campaign, there was a
clear need for meaningful reforms to bring more daylight and
accountability into the process. But at the same time, many of us on
both sides of the aisle were absolutely intent on preserving these
critical national security tools that have helped keep America safe.
While discussions were under way on how to strike the right balance,
the Senate passed a bipartisan short-term extension so these important
tools could remain in our national security professionals' hands while
Congress got our act together. Unfortunately, Speaker Pelosi let that
extension sit on her desk and gather dust. So, for more than 8 weeks--8
weeks--these important tools have gone dark.
Fortunately, the Attorney General and Members of Congress have worked
together to craft a compromise solution that will implement needed
reforms while preserving the core national security tools. These
intense discussions produced a strong bill that balances the need for
accountability with our solemn obligation to protect our citizens and
defend our homeland.
I understand several of our colleagues believe this compromise bill
is not perfect. Sadly, imperfection is a fact of life when it comes to
compromise legislation. While I respect my distinguished colleagues
whose amendments we will be voting on later today, I urge Senators to
vote against them. The current bill in its current form already strikes
the correct and delicate balance, and there is certainly no guarantee
that another, new version of this legislation would necessarily pass
the House or earn the President's support. This version has already
done both. We cannot let the perfect become the enemy of the good when
key authorities are currently sitting expired and unusable.
In sum, while the Senate continues overseeing the national response
to the coronavirus crisis, we are also making sure the pandemic does
not inflict even greater harm by distracting us from other threats and
challenges that preceded it.
Off the floor, our committees are working through a number of
pressing national security nominations, from the Director of National
Intelligence to the Secretary of the Navy, to other high-level openings
at the Pentagon. When the time comes, I hope we will be able to fill
these crucial openings promptly through bipartisan cooperation on the
floor. I hope our Democratic colleagues think carefully before applying
reflexive partisan delays even to vital security positions during a
global emergency.
We cannot put Homeland Security on autopilot because another crisis
has our attention. The Senate can, will, and must continue to pay
attention to both.
____________________
[Congressional Record Volume 166, Number 90 (Wednesday, May 13, 2020)]
[Senate]
[Pages S2388-S2412]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA FREEDOM REAUTHORIZATION ACT OF 2020
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of H.R. 6172, which the clerk will report.
The senior assistant legislative clerk read as follows:
A bill (H.R. 6172) to amend the Foreign Intelligence
Surveillance Act of 1978 to prohibit the production of
certain business records, and for other purposes.
Mr. McCONNELL. 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. 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.
[...]
The PRESIDING OFFICER. The Senator from Montana
H.R. 6172
Mr. DAINES. Mr. President, Americans want their privacy protected.
For far too long, the Patriot Act and the Foreign Intelligence
Surveillance Act, commonly referred to as FISA, have been used to
trample the civil liberties of American citizens. For Montanans, the
right to privacy is so fundamental that it is enshrined in our own
constitution. In fact, very few States have such protections, but the
drafters of the Montana Constitution recognized that privacy was
essential to exercising all of the other freedoms that we hold so dear.
The bill the U.S. House has sent us does have some good reforms, and
it has some good provisions in it, including a provision from my
bipartisan bill with my colleague from Oregon, Senator Wyden, called
the Safeguarding Americans' Private Records Act, which would revoke the
now terminated call detail record program, which secretly collected
data on our cell phones and our land lines, as well as on our private
conversations. Yet the House bill fails to enact real reforms to FISA
that will
[[Page S2397]]
actually protect the privacy of the American people. We saw what a
handful of scornful government bureaucrats did to President Trump when
they abused FISA to serve their political motives. Our own government
spied on an American citizen--a political adviser to then-Candidate
Trump--with no oversight.
What happened to President Trump can happen to anybody for any
purpose, and that is a very serious problem. Republican or Democrat, we
can't allow the abuse of our government intelligence services to be
used for political attacks. It puts our democracy in danger, and it
undermines the trust and the confidence that our citizens place in
these same institutions that are meant to protect them.
The House bill fails to prohibit the warrantless searches of browsing
data in internet search history, and it fails to include any meaningful
oversight and accountability. We need to get government out of our
private lives and, instead, prioritize freedom and privacy. We can and
must protect our national security and protect our civil liberties by
making targeted reforms that will keep everyday Americans' privacy
secure and continue to allow the government to go after the bad guys.
The House bill does not go far enough, and we cannot compromise on an
issue that is so vital to the very foundations of our government.
Montanans sent me to Congress to get government off their backs, and
I am working not only to get government off their backs but to get
government out of their phones, out of their computers, and out of
their private lives. At the end of the day, this is about protecting
privacy, and today, this day, we have the opportunity to get these
reforms right. I have been working on behalf of Montanans, with my
Senate colleagues across the aisle, to ensure we take a very bipartisan
approach to this issue
In speaking on the Wyden-Daines amendment we will be voting on
shortly, my bipartisan amendment is simple. It protects all Americans'
civil liberties by prohibiting the collection of browser data and
internet search history under section 215 of the Patriot Act. Browser
data is some of the most personal and revealing information that can be
collected on private citizens. Your internet search history can reveal
extremely intimate information, including personal health data,
religious beliefs, political beliefs, where you might go on your next
vacation, even what you bought for your mom this past Mother's Day. I
don't think the government should have access to such private
information without a warrant. Section 215 of the Patriot Act is
supposed to investigate potential terrorists, not spy on our own
Americans' browser data.
Let me be clear. My amendment doesn't stop the intelligence community
from doing its job. I am grateful for our intelligence community, and
it doesn't prevent it from doing its job or from accessing the data it
needs to keep Americans safe. It simply requires our intelligence
agencies to abide by the Constitution and work within our Nation's
laws, which means requesting a probable cause warrant to get this type
of information. That means they might have to go to a judge and prove
they have a valid reason to believe that someone is involved in
espionage or in a possible terrorism operation. Without my bipartisan
amendment, the government will be able to access browser data through
the secret 215 spy program with little to no oversight.
At the end of the day, this is about securing our most basic Fourth
Amendment rights, to protect our citizens' most personal data. In fact,
recently, the Supreme Court found in the Carpenter decision that the
government needed a warrant to access cell site location data because
of how personal and invasive that information is.
The current House bill before us does have a prohibition for the
collection of cell site location data under section 215, and that is a
good thing. My amendment simply extends this prohibition to include
browser data and internet search history, which is even more sensitive
and personal than location data.
I agree with many of my colleagues that we need to have the tools in
place to help find and stop our Nation's enemies, those who seek to
harm America. We all agree on that, but we also need to make sure we
are protecting Americans from our own government's spying and
intervening in our personal lives. My amendment balances these
important civil liberties and our national security by allowing the
government to track down terrorists while also stopping them from
violating the rights of law-abiding citizens.
This is not a zero-sum game. We can have both. This amendment has
strong bipartisan support. Senator Wyden and I have been working on
this issue for months, and we are joined by a long list of bipartisan
cosponsors, including Republican Senators Lee, Braun, and Cramer, as
well as by Democratic Senators Leahy, Udall, Markey, and many more. The
amendment is also supported by a diverse group of stakeholders across
the political spectrum, from FreedomWorks and Americans for Prosperity
on one end to the ACLU and Demand Progress on the other. Americans
across the country overwhelmingly back this amendment.
This is a core constitutional issue that brought a Democrat from
Oregon together with a Republican from Montana. Montanans and
Oregonians may have different priorities, but we all believe strongly
in the right to privacy, in protecting our civil liberties, and in
preserving our American way of life. I urge my Senate colleagues to
stand with Senator Wyden and me to protect the privacy of all
Americans, and I urge them to vote in favor of this amendment.
Before I yield to Senator Wyden, I will also take a minute to speak
in support of the Lee-Leahy amendment.
This bipartisan amendment strengthens and clarifies the role and the
authority of the amici in the FISA court. Unfortunately, we continue to
see serious abuses and misuse of the FISA process. Most notably, the
Department of Justice's inspector general found major abuses in
applications to surveil President Trump's campaign adviser Carter Page.
This abuse is just the tip of the iceberg.
We need serious reforms that protect American citizens from
government surveillance, and the Lee-Leahy amendment does just that. It
gives Americans a fighting chance and brings some clarity and,
importantly, some transparency to the FISA court. I encourage my
colleagues to also join me in supporting this Lee-Leahy amendment.
I see that my distinguished colleague and friend, the Senator from
Oregon, Ron Wyden, is on the floor.
I yield to Senator Wyden for his remarks.
The PRESIDING OFFICER. The Senator from Oregon.
Amendment No. 1583
Mr. WYDEN. Mr. President, I call up amendment No. 1583.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Oregon [Mr. Wyden] proposes an amendment
numbered 1583.
Mr. WYDEN. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows
(Purpose: To remove internet website browsing information and search
history from scope of authority to access certain business records for
foreign intelligence and international terrorism investigations)
On page 7, strike lines 13 and 14 and insert the following:
cell site location or global positioning system information.
``(C) An application under paragraph (1) may not seek an
order authorizing or requiring the production of internet
website browsing information or internet search history
information.''.
Mr. WYDEN. Mr. President, I thank my colleague from Montana for our
work on this effort, and I hope we can count on strong support from his
caucus, the Senate majority, when we vote in a little bit.
I rise to offer this bipartisan amendment because I think a basic
question needs to be asked at this unique time: Is it right, when
millions of law-abiding Americans are at home, for their government to
be able to spy on their internet searches and their web browsing
without its having a warrant? Should law-abiding Americans have to
worry about their government's looking over their shoulders from the
moment they wake up in the morning and turn on their computers to when
they
[[Page S2398]]
go to bed at night? I believe the answer is no, but that is exactly
what the government has the power to do without this bipartisan
amendment.
I start by reflecting for a moment on how Americans are using the
internet these days. They are helping kids with homework, checking out
prescription drug prices for a sick parent, and visiting scores of
different websites. In a pandemic, the internet may be their only
connection to the outside world.
So the questions we are presenting are, Don't those Americans deserve
some measure of privacy? Don't they deserve better than their
government's snooping into the websites they visit? How can this be
that the government can spy on them when they are not suspected of
doing anything wrong? Most importantly, how is this OK in America?
With web browsing and searches, you are talking about some of the
most intimate, some of the most personal, some of the most private
details of the lives of Americans. Every thought that can come into
people's heads can be revealed in an internet search or in a visit to a
website: their health histories, their medical fears, their political
views, their romantic lives, their religious beliefs. Collecting this
information is as close to reading minds as surveillance can get. It is
the digital mining of the personal lives of the American people.
Now, typical Americans may think to themselves: I have nothing to
worry about. I have done nothing wrong. The government has no reason to
suspect me of anything. Why do I need to worry?
Unfortunately, the question is not whether you did anything wrong.
The question is whether government agents believe they have the right
to look at your web searches. In other words, without this bipartisan
amendment, it is open season on anybody's most personal information.
Now, there is a simple solution: require a warrant. With this
amendment, the government can go to court and, with a warrant, collect
whatever it needs from those who actually threaten the safety of our
people. In an emergency--something I feel very strongly about and
worked for as a member of the Intelligence Committee--the Government
can use emergency provisions, collect the information immediately, and
settle up with the court later, proving once again that liberty and
security are not mutually exclusive. This type of amendment helps to
get you both.
Now I will give a brief explanation of how we got here. Right now the
Government can collect web browsing and internet search history without
a warrant under section 215 of the PATRIOT Act. Section 215, from the
beginning, has been the most controversial and dangerous provision of
the FISA law. That is because it is so extraordinarily broad and so
vague. Under section 215, the Government can collect just about
anything, as long as the Government believes it is relevant to an
investigation. This can include the private lives of many innocent,
law-abiding Americans. As I indicated, they don't have to do anything
wrong. They don't have to be suspected of anything. They don't even
have to have been in contact with anyone suspected of anything. Their
personal information in some way just has to be connected for relevance
to what the Government is looking for.
Back in 2001, when Congress passed the PATRIOT Act, Americans were
rightly concerned about their Government collecting their library
borrowing records without a warrant. My colleagues and the Presiding
Officer might remember it because this was nationwide. People were up
in arms about the prospect of the Government looking at library records
of books they borrowed and the like.
Well, I will state that what we are talking about today--looking at
web history, browsing--it is thousands of times more invasive of
privacy than the library records Americans were concerned about years
ago.
There is, regrettably, a long history of abuse of section 215. A few
years ago, the Government decided it could use section 215 to justify
the collection of every American's phone records. The Government
secretly decided that phone records of millions of innocent law-abiding
Americans were, again, somehow connected, somehow relevant to something
the Government wanted. They wanted to get it without a warrant. It was
only when this abuse was publicly revealed that Congress stepped in and
began reining in the Government's phone record collection.
The Supreme Court did determine recently that physical tracking of
Americans as they move around requires a warrant. In this bill,
Congress is finally getting around to stopping the Government from
using section 215 to conduct warrantless collections of certain
location data. The irony is--and I say this to my colleagues because of
this unique time--that now that Americans have been asked to stay home
and not move around so as to help our country fight this unprecedented
contagion, they are more vulnerable to abusive surveillance than ever
before. I think that is wrong.
Whether they are in North Dakota, Washington State, Montana, Oregon,
or in any of our home States, people are at home and they are living
their lives online. Now more than ever I would say to Senators of both
political parties--because I have long felt that these issues were
fundamental to ensuring that we prove, as I stated earlier, that
liberty and security are not mutually exclusive--that smart policies
give you both, and not-so-smart policies don't give you either. During
this pandemic, Americans deserve assurances that the Government isn't
spying on them as they are home, where they think they are going to
have some measure of privacy, and, probably, until they heard this
debate, didn't know the Government could spy on them at home while they
move around the internet.
Americans deserve to know at this unique time that the Government
does not engage in digital tracking of their personal lives. The
warrantless collection of Americans' web browsing history offers
endless opportunities for abuse.
Donald Trump has called for an investigation of his political
enemies. Attorney General Barr has injected himself into investigations
that affect the personal interests of Donald Trump. All it would take
is some innocent American's web browsing history to be deemed relevant
to an investigation, and the Government is off to the races, collecting
all of that personal information. Then, it wouldn't even matter whether
that web browsing history had anything to do with the original goal of
the investigation. For any number of reasons, the web browsing history
of that innocent American could reveal, potentially, such embarrassing
information that the person would be humiliated--humiliated--for years
to come and, of course, it can be used against him or her.
This is not a partisan proposition. Any administration given the
direction of the law absent this amendment could be tempted to collect
the web browsing and internet search history of political enemies--
politicians activists, journalists.
Just before I wrap up, I am going to touch on some of the arguments
against this amendment, because having served on the Intelligence
Committee and having followed these issues closely, invariably, at some
point in this discussion, someone is going to come and say: This
bipartisan amendment is going to be pretty much the end of Western
civilization as we know it. We are not going to be safe. It is not
going to protect our liberties. It is going to set up arbitrary
policies.
I want to show how these arguments don't hold water. The first
argument is that the Government needs this information before it can
get a warrant. But without web browsing history, there is still plenty
of information available to the Government, even without a warrant--
phone and email data, subscription data, business records. The biggest
response to this argument is that it is Congress's responsibility to
determine when some information is so sensitive that it requires a
warrant. In this bill that was done with respect to geolocation
information. I believe that digital tracking of innocent Americans
demands the same protection.
Let me say, as I did earlier, when there is an emergency, something
that I have made a priority in my work on the Intelligence Committee,
the government can go get the information immediately and then come
back to the court later on and settle up.
The other argument that I imagine we will hear is that this amendment
[[Page S2399]]
will create protections for Americans that don't exist in the criminal
context. The problem with that argument is that Congress isn't
legislating on the criminal law right now, but it does have a unique
opportunity to prevent intrusive surveillance of Americans to prevent
abuses.
FISA requires an extra layer of protection. That is because, unlike
criminal law, FISA is secret. It is also a nonadversarial process. It
relies on Government representations that we have learned, from the
inspector general, are frequently inaccurate. When the Government uses
FISA information against Americans, there is little or no notice or
opportunity to challenge the surveillance.
Most of all, it is subject to something that I have come to call
``secret law.'' It is a law that nobody knows about in a coffee shop in
Washington, North Dakota, or Montana. It is basically secretly
interpreted. As I pointed out on the floor in the past, warning the
American people about these secret interpretations, Americans sometimes
don't learn about them for years, and when they find out, they are
really unhappy.
So I want to touch briefly on the amendment of the Senate majority
leader, the McConnell amendment. Not only is the majority leader trying
to block the bipartisan effort that we have been talking about, but his
amendment would actually make the situation even worse. Right now the
Government can collect web browsing internet searches of Americans
without a warrant under section 215, but so far there has not been
explicit congressional authorization for the Government to do it. The
McConnell amendment would, for the first time, provide that
authorization. The McConnell amendment would, in effect, tell the
Government that Congress approves of the warrantless collection of
Americans' most private information. Wrap your arms around that one--
Congress explicitly approving of the warrantless collection of
Americans' most private information when millions of Americans are
sitting at home today in Kansas, South Dakota, and all across the
country, sitting at home believing that they have some expectation of
privacy.
The McConnell amendment pretends to limit the collection of this
personal information of Americans, but it is just a fake. What the
amendment really does is meaningless, since the Government cannot
collect content. But no one knows what that means when it comes to web
browsing and internet search history. There is no clarity in the
statute. There is no settled law in the courts. The Supreme Court has
not weighed in. What the McConnell amendment does is invite the
Attorney General to produce yet more secret law, yet another secret
interpretation, designed, as these things always are, to allow for the
collection of the broadest set of Americans' most private information.
At some point, I believe the Senate needs to focus on a little bit of
history. Section 215 was secretly interpreted and abused in the past.
The use of these authorities to spy on Americans' web browsing and
search history is a screaming alarm, warning us of future abuses. What
the American people deserve and what this amendment provides is clarity
and transparency about what the government cannot collect without a
warrant.
One last argument is that we have heard that, if the Senate amends
this bill, oh, my goodness, the House just will not do anything at all.
Well, there were 75 House Democrats and many Republicans--I want to
underline that, 75 House Democrats and many Republicans--who voted
against this bill because it didn't include enough privacy reform.
Adding key reforms like this amendment could only strengthen its
support in the House.
Americans will not tolerate warrantless Government spying on their
most private information when they find out--when they find out that
right now, during a pandemic, the Government has the authority to do
that. I can't accept that level of unchecked surveillance.
I am very grateful for the sponsors that we have. They were listed by
my colleague from Montana.
There are a great array of organizations that share our view that
liberty and security are not mutually exclusive.
I ask unanimous consent that a list of those organizations be printed
in the Record
There being no objection, the material was ordered to be printed in
the Record, as follows:
Access Now; American Booksellers for Free Expression
American Civil Liberties; Union Americans for Prosperity;
Brennan Center for Justice at NYU School of Law Center for
Security; Race and Rights Constitutional Alliance Council on
American-Islamic Relations (CAIR); Defending Rights &
Dissent; Demand Progress Due Process Institute; Electronic
Privacy Information Center (EPIC); Free Press Action;
FreedomWorks; Government Accountability Project; Government
Information Watch; Human Rights Watch; Liberty Coalition;
Media Alliance; National Association for the Advancement of
Colored People (NAACP); National Coalition Against
Censorship; Oakland Privacy; PEN America; People Demanding
Action; People For the American Way; Progress America; Public
Citizen; Restore The Fourth; Secure Justice; South Asian
Americans Leading Together (SAALT); TechFreedom; The Project
for Privacy and Surveillance Accountability; Union of
Concerned Scientists; Woodhull Freedom Foundation; X-Lab.
Mr. WYDEN. Mr. President, I will state that I think right now, during
a unique time in American history when millions of Americans are at
home and on line, they deserve to have the U.S. Senate step up, defend
their privacy and constitutional rights, and protect them from abuses.
This is the moment to stand up for those millions of people who have to
be at home because we come together to deal with this contagion.
I believe the Senate ought to pass the Wyden-Daines amendment and
oppose the McConnell amendment to protect those people at home. In
wrapping up, I also want to commend our friends Senators Leahy and Lee.
As was noted, they have worked with us on a host of these efforts. I
think they have a terrific amendment to strengthen the oversight role
of the independent amici of the FISA Court. I hope Senators will also
support it.
I yield the floor.
The PRESIDING OFFICER (Mr. Cramer). The Senator from Montana.
Mr. DAINES. Mr. President, this amendment is about protecting
American privacy, about making sure that Government is not intruding on
our most private data. It is about respecting the Constitution and the
Fourth Amendment. The Wyden-Daines amendment simply prohibits the
collection of browser and search history data under section 215.
Browser data is extremely personal, sensitive, and should require a
probable cause warrant to access. This data shouldn't be allowed to be
collected behind closed doors with no traditional oversight.
We can protect national security and protect the civil liberties and
the constitutional rights of Americans at the same time. It is plain
and simple. If you want to see an American's search history, than you
better go to a judge and get a warrant.
I yield the floor.
Vote on Amendment No. 1583
The PRESIDING OFFICER. The question is on agreeing to the amendment.
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 bill clerk called the roll.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Tennessee (Mr. Alexander) and the Senator from Nebraska (Mr.
Sasse).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``nay.''
Mr. DURBIN. I announce that the Senator from Washington (Mrs. Murray)
and the Senator from Vermont (Mr. Sanders) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 59, nays 37, as follows:
[Rollcall Vote No. 89 Leg.]
YEAS--59
Baldwin
Bennet
Blumenthal
Booker
Braun
Brown
Cantwell
Cardin
Cassidy
Coons
Cortez Masto
Cramer
Crapo
Cruz
Daines
Duckworth
Durbin
Enzi
Ernst
Gardner
Gillibrand
Grassley
Harris
Hawley
Heinrich
Hirono
Hoeven
Kennedy
King
Klobuchar
[[Page S2400]]
Leahy
Lee
Loeffler
Markey
McSally
Menendez
Merkley
Moran
Murkowski
Murphy
Paul
Peters
Reed
Risch
Rosen
Rounds
Schatz
Schumer
Scott (FL)
Scott (SC)
Sinema
Smith
Stabenow
Sullivan
Tester
Udall
Van Hollen
Warren
Wyden
NAYS--37
Barrasso
Blackburn
Blunt
Boozman
Burr
Capito
Carper
Casey
Collins
Cornyn
Cotton
Feinstein
Fischer
Graham
Hassan
Hyde-Smith
Inhofe
Johnson
Jones
Kaine
Lankford
Manchin
McConnell
Perdue
Portman
Roberts
Romney
Rubio
Shaheen
Shelby
Thune
Tillis
Toomey
Warner
Whitehouse
Wicker
Young
NOT VOTING--4
Alexander
Murray
Sanders
Sass
The PRESIDING OFFICER. On this vote, the yeas are 59, the nays are
37.
Under the previous order requiring 60 votes for the adoption of this
amendment, the amendment is not agreed to.
The amendment (No. 1583) was rejected.
[...]
H.R. 6172
Mr. CORNYN. Mr. President, both at home and around the world, the
fight to defeat the coronavirus seems all consuming. It has changed
virtually every part of our lives, from the way we work to how we
grocery shop. It dominates our conversations, our news cycles, and
social media feeds. It is easy to feel like this is the only threat
that the world is facing right now, but even a pandemic isn't enough to
stop those who want to bring harm to our country or to the American
people. As our fight against the coronavirus wages on, our dedicated
counterterrorism and counterintelligence experts continue their
critical work to identify potential threats against our country and to
prevent them from being successful.
One of the most powerful tools in their toolbox is the ability to
covertly gather information about bad actors. That is absolutely
critical to national security. Yet our commitment to public safety can
be at odds with privacy and individual liberty. So we, as a country,
must have sincere trust in both the people and the processes that
govern that activity. That is why I fear that recent events have put
our trust of both in grave jeopardy.
Last December, the inspector general for the Department of Justice
released his report on the FBI's counterintelligence investigation of
the Trump campaign and its purported contacts with Russia. This 480-
page report outlined a pattern of concerning behavior by those who were
charged with protecting and defending the United States and upholding
our laws. The inspector general has detailed a number of truly
disturbing and alarming facts about how the Russia investigation was
conducted, specifically when it has come down to the abuse of the
Foreign Intelligence Surveillance Act. He has identified 7 mistakes--I
think he was being generous in calling them mistakes--in the initial
Carter Page FISA
[[Page S2410]]
application and an additional 10 mistakes, or errors, in 3 renewals.
Now, these were not typos or misspelled words. These were significant
and material errors that misled and affected the independent judgment
of the FISA Court, or the Foreign Intelligence Surveillance Court. In
other words, they presented erroneous information--sometimes by
omission, sometimes by commission--which may have affected the decision
of the Foreign Intelligence Surveillance Court.
To make matters worse, even as new and exculpatory information came
to light, this information was not provided to the FISA Court. In a
nutshell, this report raised a big red flag and led to the inspector
general's conducting a subsequent audit on unrelated cases to see how
widespread the problems were, but that audit revealed even more
problems.
The inspector general recently released an interim report based on a
sample of 29 FISA applications. For four of these, the FBI could not
even locate the Woods files, which were meant to include supporting
documents for the claims made in the sworn applications. For the
remaining 25 applications, an average of 20 ``issues'' were found in
each, with 1 application having 65 ``issues.'' You might as well use
the word ``errors.'' This is alarming and absolutely unacceptable.
The Foreign Intelligence Surveillance Act has been amended several
times over the more than 30 years that it has been law, particularly
since 9/11. In light of these developments, it is time to, once again,
strengthen the oversight of our Nation's intelligence activities and
restore trust in our critical institutions.
FISA reform is part of the congressional ``to do'' list. It has been
for some time, and it still is. Before key provisions could expire last
year, Congress extended these authorities through mid-March to provide
time for a debate over future reforms. Of course, back then, no one
suspected that we would be working on a pandemic response when that
deadline arrived. With the coronavirus spreading across the country, it
was hardly the time to debate the long-term changes that should be made
to this program. So the Senate passed a short-term extension. Had our
colleagues in the House passed that bill, those authorities would have
still been intact through the end of the month.
Unfortunately, as we know, that is not what happened. The Foreign
Intelligence Surveillance Act's authorities expired nearly 2 months
ago, and now our national security experts are without the tools they
need to keep the American people safe. That must change.
The bipartisan bill that we are considering today would reauthorize
certain FISA provisions that are important to our national security
while it would make significant reforms to prevent future abuses like
we saw in 2016. At a time when it is clearly needed, this bill would
strengthen the congressional oversight of the FISA process. It would
also take steps to prevent future abuse of the FISA Court by requiring
transcripts of court proceedings and increasing penalties for those who
knowingly abuse the process for inappropriate reasons.
One of the most significant changes we would see as a result is an
end to the call detail record, or CDR, program. This program was
created in 2015 to replace bulk collection with a more targeted
approach, but the program has been riddled with issues from the start.
Two years ago, the National Security Agency said that ``technical
irregularities'' made it difficult to actually implement the program.
The National Security Agency received a jumbled mess of call detail
records from phone companies, and it was not able to separate the data
records it should have received from the ones it should not have
received. As a result, it ended up deleting all of the records dating
back to 2015 when the CDR program was established. Clearly, this
program was not delivering the targeted approach it was intended to
provide. In fact, it just created more work--all to end up empty handed
This legislation will put an end to the CDR program. The National
Security Agency has said the cost simply outweighs the benefit, but we
want to make sure we are also not wasting valuable human resources on a
program that is failing to achieve its intended purpose. Above all,
this legislation will restore authorities our counterintelligence and
counterterrorism experts need to protect the American people.
In order for these authorities to protect the American people and
serve their intended purpose, we need trust--trust in the FISA Court,
trust in our congressional committees, and trust in the professionals
who actually work with these authorities. The USA FREEDOM
Reauthorization Act will go a long way to restoring that trust while we
continue to work on longer term reforms and empower our intelligence
officials to carry out their sworn duties.
This bill received broad, bipartisan support in the House, and I hope
it will enjoy similar support in the Senate. This legislation will
ensure that these critical national security tools remain intact while
it takes serious quality control measures to prevent abuse.
We can't have a repeat of the disastrous FISA abuse in 2016, and we
cannot allow these critical surveillance authorities to disappear. The
best of tools can be misused by people who are intent on abusing their
power. That is what happened when the inspector general revealed the
FISA warrants that were issued against the Trump campaign and Trump's
associates in an effort to try to come up with some evidence of
collusion and obstruction. In the end, not even the special counsel was
able to find enough evidence to be able to make those cases.
We shouldn't confuse the tools with the people who abuse those tools.
We know that the Attorney General, William Barr; Chris Wray, the FBI
Director; and Mr. Durham, the U.S. attorney who has been deputized by
the Attorney General, are currently conducting investigations that
will, perhaps, even lead to criminal charges, indictments, and
potential convictions of those who abused these authorities in the
past.
That should not change our attitude toward providing these necessary
tools--things like business record collection, roving wiretaps, and
lone wolf authority. By and large, these are tools that are used by law
enforcement on a daily basis for domestic critical cases. Yet we are
going to deny those tools to our counterintelligence officials? It
makes no sense whatsoever. Our counterintelligence and counterterrorism
experts rely on those authorities to keep us safe, and it is time we
return this critical tool to their toolbox. I look forward to
supporting this legislation and to restoring these lapsed authorities,
which are critical to our national security.
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. LEAHY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Blackburn). Without objection, it is so
ordered.
Amendment No. 1584
Mr. LEAHY. Madam President, I must admit that when I look around this
body, it looks a little bit different than when I first came here, and
I will be glad when we get back to normal. In the meantime, I want to
say that I entered the Senate in the wake of Watergate in 1975. It was
a time when the American people's faith in their institutions,
including their intelligence agencies, was profoundly shaken.
I remember standing on this floor, and the very first vote I cast was
in favor of creating the Select Committee to Study Government
Operations with Respect to Intelligence Activities and the Rights of
Americans. That was called the Church Committee. It was the forerunner
of our Intelligence Committee.
Through the Committee's work, the American people soon learned of
years of surveillance and other abuses that had occurred at the hands
of the U.S. intelligence agencies. In response, the Senate came
together, Republicans and Democrats together, to pass sweeping reforms
to rein in this overreach.
So much has improved over the 45 years with respect to the
intelligence agencies' compliance with the law. I must admit that
seeing the changes over the years gives me a great deal of confidence
that we can continue to develop. But we do know that there are some
inexcusable problems that remain. We have seen time and again
[[Page S2411]]
that the system we created with the government lawyers seeking approval
for surveillance in a secret surveillance court falls short of
protecting Americans' due process rights.
I know a lot of our intelligence professionals. I have no doubt that
our intelligence professionals work very hard. They are dedicated to
protecting Americans, and they strive to follow the rules. I don't
doubt that at all, but I can't escape the conclusion that the rules are
simply not good enough. A process that operates in total secrecy, with
no checks on the government's allegations or portrayal of the facts at
issue, is bound to fall short. When it comes to justice--justice which
is a bedrock of our democracy--well, to say it falls short is not good
enough.
Last fall, the Justice Department inspector general issued a report
that detailed 17 errors or omissions in the FBI's FISA applications to
surveil former Presidential campaign adviser Carter Page. While the
inspector general did not find that the mistakes were politically
motivated, those of us who were at those hearings know that the errors
were nonetheless serious, and we have since learned that they were not
isolated incidents.
In March, just 2 weeks after the House passed the very legislation we
are considering today, the inspector general released an even more
damning report. He sampled just 29 applications for FISA surveillance.
In those 29, he found deficiencies in 25 of the 29, with an average of
20 issues on each application. Errors included a failure to disclose
all exculpatory evidence. That is simply unacceptable. It strongly
indicates that something is wrong and needs to be fixed within the FISA
process.
I joined with Senator Lee of Utah. We have been working together to
do just that--to define what the fixes might be. The heart of our
proposal is to improve the amici program we created with the assistance
of Members such as Senator Blumenthal with the USA FREEDOM Act of 2015.
We created a process by which the FISA Court could appoint amici to
provide an independent perspective on certain complex issues before the
court. Amici do not act as defense attorneys, representing the target
of the surveillance. They serve the court. But we gave the court narrow
grounds to require the appointment of amici--novel or significant
interpretation of law.
While amici have since served the court well, they have only been
appointed 16 times over the last 5 years. We have to do more to
encourage the appointment of amici in cases that involve serious
constitutional issues.
My amendment with Senator Lee would create a presumption of amici
participation in cases involving significant First Amendment issues,
not just ``exceptional concerns'' as in the House bill. Importantly, we
also create a presumption of amici participation when the FBI considers
the case to be a ``sensitive investigative matter'' which the FBI would
call an investigation involving the domestic media, a domestic
religious organization, or a public official. I think all of us should
agree that in those instances we ought to have somebody independently
looking at them.
Most critically, though, we would leave the decision to appoint amici
entirely up to the FISA judge. Even if it would fall into all of these
categories they could still say no. As a result, the argument that the
expanded amici participation would duly burden the court doesn't even
withstand the slightest scrutiny. If the judge believes amici would not
be appropriate because the case is too time sensitive or too simple
or too routine or for any other reason--any other reason--they have the
discretion to not appoint amici at all. Under our amendment, throughout
the FISA process, the judge maintains complete control. It is not a
burden on the court. What it is doing is empowering the court. It is up
to them.
In reality, the number of cases that would have amici participation
under our amendment would remain manageable. The cases likely to raise
significant civil liberties issues would almost certainly be a small
subset of applications related to U.S. persons, as foreigners abroad do
not have constitutional rights like Americans. The total number of such
U.S. person cases last year was just over 200.
Perhaps this is why the courts themselves would not anticipate that
our amendment would create a significant financial burden. The
Administrative Office of the Courts estimated costs to be about
$225,000 a year, which they can pay for out of their discretionary
budget. There is plenty of money in there. In fact, the CBO scored the
amendment as zero.
But the benefits go far beyond zero. Responding to the latest
inspector general report, which found serious issues in 25 of the 29
FISA applications they reviewed, we would require that the government
turn over all material exculpatory information to the court and make it
available to amici, too, if one is appointed. That is a basic due
process protection available in every public courtroom in America. It
certainly was when I was a prosecutor. The FISA Court should be no
exception.
So, I think, with this any Senator should look at what Senator Lee
and I have done. We have an opportunity to reform our flawed
surveillance authorities. These opportunities don't come by often. We
shouldn't squander it, especially when the Justice Department's own
inspector general has been alerting us of the widespread problems
within the FISA process.
After the Church Committee found abuses within our intelligence
agencies, something I first learned of when I got elected to the
Senate, I saw the Senate come together, Republicans and Democrats, to
respond decisively. While much has improved since then, they now are
confronted with serious but solvable problems within the FISA process.
I hope I have given the Senate and both parties something for them to
come together.
I want to thank Senator Lee for his partnership on this issue and
also for his steadfast devotion to protecting the rights of all
Americans. I am proud to stand with Senator Lee today. I urge all of
our fellow Senators to stand with us, because if you stand with us you
are standing up for the Constitution. Support this amendment, stand
with the American people, and stand with our Constitution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Madam President, I call up my amendment No. 1584 and ask
that it be reported by number.
The PRESIDING OFFICER. The clerk will report the amendment by number.
The senior assistant legislative clerk read as follows:
The Senator from Utah [Mr. Lee] proposes an amendment
numbered 1584.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. LEE. Madam President, I ask unanimous consent to speak for a
period not to exceed 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered
Mr. LEE. Madam President, it has been an honor and a privilege to
work with my friend and distinguished colleague, the senior Senator
from Vermont, on this issue. Senator Leahy and I have, over the past
decade, worked together on a number of projects including this one,
including the USA FREEDOM Act.
Senator Leahy and I come from different political parties and
different ends of the political spectrum, and yet we share much in
common, including a devotion to our families, a devotion to God, a
devotion to this great country, and a devotion to the Constitution that
has fostered the development of the greatest civilization the world has
ever known. It is an honor and a privilege to stand with Senator Leahy
in defense of the Fourth Amendment and the other rights articulated in
our Constitution.
Senator Leahy and I have confronted many opponents, and many
opponents to the Lee-Leahy amendment have made arguments that I think
need to be mentioned one final time before we vote on this matter. Many
of them are arguing that this amendment would somehow hamper the
ability of the FISA Court to approve applications quickly in the case
of an emergency. This is simply untrue. In all these circumstances in
which it would apply, our amendment would allow the FISA Court to issue
a finding saying the appointment of amicus would, in that circumstance,
be inappropriate. This the FISA Court could do in a single sentence.
The FBI or some of its proclaimed self-appointed defenders also
complain
[[Page S2412]]
that this might make it harder for them to get surveillance
applications approved. Let me just remind everyone that we are talking
about the rights of U.S. persons--that is, of U.S. citizens and lawful
permanent residents of the United States. These are rights that deserve
to be protected. We have to remember that the purpose of the
Constitution is not to make it easier to govern. The purpose of the
Constitution is to provide structure and limitations on government
because governments sometimes make mistakes.
I find it especially tone deaf that the very agency--the very
Bureau--that has now been found to have been in violation of its own
policies and procedures--in not just one but two inspector general
reports in the past year--for failing to follow its own policies is now
the agency that many people are trying to defend in saying that we
can't inform the American people of what is going on and we can't
improve the process by which that agency operates.
Power is always vulnerable to abuse. Warnings were made when this
process was put into place, and exactly the kinds of abuses that we
have now seen are the types of abuses that have occurred over and over
or are the same ones that were foreseen.
This isn't an indictment of any one agency or administration or
person or political party. It is an affirmation of the Founding
Fathers' trust in the checks and balances that they put in place in our
founding document. James Madison so eloquently expressed this principle
in Federalist 51:
If men were angels, no government would be necessary. If
angels were to govern men, neither external or internal
controls on government would be necessary. In framing a
government which is to be administered by men over men, the
great difficulty lies in this: We must first enable the
government to control the governed; and in the next place,
oblige it to control itself.
We cannot--notwithstanding the urging of many--simply wave our hands
and say: No, we don't have to worry about this. It is OK because we
have to worry about national security or it is OK because this is about
foreign intelligence or this is about foreign intelligence gathering.
We know that what the Lee-Leahy amendment is designed to protect are
the rights of the American people--of U.S. persons--U.S. citizens and
lawful permanent residents. Reforms in this amendment do not take
anything away from the National Security Agency--nothing. We are just
injecting greater fairness and accountability into this process.
Insofar as we decide to have these programs, we have to have someone
accountable in them. We have to have a process by which the information
brought to bear within the Foreign Intelligence Surveillance Act Court
is accountable and reviewable by someone.
It makes sense to expand incrementally, mildly, but necessarily, the
amicus curiae provisions that were put in place 4 years ago with the
USA FREEDOM Act.
I truly believe that we can find a proper balance here between
privacy and security. I also believe that our privacy and our security
are not at odds. Our privacy is, indeed, a part of our security and our
security part of our privacy. You cannot have one without the other.
The Lee-Leahy amendment brings us closer to that balance. I invite
all my colleagues to support it and look forward to the moment, not far
from now, when we will pass it.
I yield the floor.
Vote on Amendment No. 1584
The PRESIDING OFFICER. Under the previous order, the question is on
agreeing to the amendment.
Mr. LEE. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Tennessee (Mr. Alexander) and the Senator from Nebraska (Mr.
Sasse).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea.''
Mr. DURBIN. I announce that the Senator from Washington (Mrs. Murray)
and the Senator from Vermont (Mr. Sanders) are necessarily absent.
The PRESIDING OFFICER (Mr. Cramer). Are there any other Senators in
the Chamber desiring to vote or change their vote?
The result was announced--yeas 77, nays 19, as follows:
[Rollcall Vote No. 90 Leg.]
YEAS--77
Baldwin
Barrasso
Bennet
Blackburn
Blumenthal
Booker
Braun
Brown
Cantwell
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cortez Masto
Cramer
Crapo
Cruz
Daines
Duckworth
Durbin
Enzi
Ernst
Feinstein
Gardner
Gillibrand
Grassley
Harris
Hassan
Hawley
Heinrich
Hirono
Hoeven
Johnson
Jones
Kaine
Kennedy
King
Klobuchar
Lankford
Leahy
Lee
Loeffler
Markey
McSally
Menendez
Merkley
Moran
Murkowski
Murphy
Paul
Perdue
Peters
Portman
Reed
Risch
Rosen
Rounds
Schatz
Schumer
Scott (FL)
Scott (SC)
Shaheen
Sinema
Smith
Stabenow
Sullivan
Tester
Tillis
Toomey
Udall
Van Hollen
Warren
Whitehouse
Wicker
Wyden
NAYS--19
Blunt
Boozman
Burr
Capito
Cornyn
Cotton
Fischer
Graham
Hyde-Smith
Inhofe
Manchin
McConnell
Roberts
Romney
Rubio
Shelby
Thune
Warner
Young
NOT VOTING--4
Alexander
Murray
Sanders
Sasse
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for the adoption of this amendment, the amendment is agreed to.
The amendment (No. 1584) was agreed to.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. GARDNER. Mr. President, I wish to congratulate my colleague from
Utah for his extraordinary work to continue to protect the civil
liberties of the people of this country.
____________________
