[Congressional Record Volume 166, Number 91 (Thursday, May 14, 2020)]
[Senate]
[Pages S2432-S2441]
LEGISLATIVE SESSION
______
USA FREEDOM REAUTHORIZATION ACT OF 2020--Continued
The PRESIDING OFFICER. Under the previous order, the Senate will
resume 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.
The PRESIDING OFFICER. The majority whip.
[...]
H.R. 6172
Mr. THUNE. Madam President, in addition to our pandemic response, the Senate is
also focused on the other priorities on which the American people are
relying on us to take care of--from funding the government to
protecting our Nation.
This week, the Senate is taking up legislation to reauthorize three
expired provisions of the Foreign Intelligence Surveillance Act,
including the provision that allows the FBI to wiretap lone wolf
terrorists--terrorists not affiliated with a specific terrorist
organization--and the roving wiretap provision that prevents the FBI
from having to seek a new wiretap warrant each time a terrorist suspect
changes his phone number.
These provisions lapsed in March, after the House blocked a temporary
extension that was passed unanimously in the Senate, leaving law
enforcement and intelligence officials without key tools in their anti-
terrorism fight. I expect the Senate will pass this bill today, and I
hope the House will move quickly to send it to the President's desk.
Every day, our law enforcement and intelligence personnel are engaged
in the difficult and, at times, dangerous work of tracking terrorist
threats. We need to make sure they have the tools they need to do their
jobs and to keep Americans safe. The bill before us combines extensions
of these key anti-terrorism tools with new accountability measures that
will ensure that law enforcement is held to the highest standards when
pursuing surveillance of suspected terrorists and foreign agents.
I urge my colleagues to support this legislation when we vote on it
later today.
[...]
Mr. UDALL. Mr. President, I wanted to start by stating that I know a
lot of people look at us speaking on the floor and think, you know,
well, why aren't they wearing masks?
I saw Senator Schumer. He put on his mask after he finished his talk
and left. I have my mask here. I just took it off. I am going to put it
on after I finish speaking.
You know the way this works. I wear this mask to protect you, and you
wear a mask to protect me, and that is the way we protect each other in
this pandemic. I don't think there is any doubt that wearing a mask
saves lives, and that is how we are going to overcome in this pandemic.
I see people around New Mexico all the time when I am back home
wearing masks and really taking this pandemic seriously and taking our
Governor's orders seriously.
H.R. 6172
Mr. President, reauthorization of the Foreign Intelligence
Surveillance Act, or FISA, is now before us. We have an opportunity to
reform this statute, to protect both our constitutional rights and our
security. In the immediate aftermath of 9/11, Congress hurriedly passed
the PATRIOT Act and authorized extraordinarily broad authority to the
Executive and the executive branch that threatened America's and
Americans' privacy rights and liberty interests.
In October 2001, I was 1 of 66 Members in the House of
Representatives who voted against the PATRIOT Act. It was not an easy
vote, but in the years since, it is clear that it was the correct vote
because the PATRIOT Act ultimately allowed the government to invade the
privacy of millions of innocent Americans.
Exhibit 1: section 215 of the act. Section 215 has been greatly
abused, resulting in the bulk collection of hundreds of millions of
Americans' phone records and email contact lists.
The Nation was shocked when we found out about this bulk collection
in 2013. In 2015, we passed the FREEDOM Act to cure some of the abuses.
It did not cure them all.
Section 215 and two other provisions of the PATRIOT Act are up for
reauthorization. That is the bill before us. Congress has the
opportunity to protect our civil liberties even as we protect national
security.
And while the House bill made improvements, it is still flawed. The
House version still allows large-scale collection of Americans'
sensitive information, and it doesn't reform the FISA Courts to prevent
abuses. We should learn the lesson of October 2001 and not rush this
through the Senate. We should include amendments to better protect
Americans' civil liberties.
I support the Wyden-Daines amendment that prohibits collection of
Americans' internet website browsing and internet search history
information without a search warrant. It is a missed opportunity for
the Nation that the amendment failed yesterday, although by one vote--
by one vote.
Right now, the Federal Government can digitally track articles
Americans are reading online, social media they are using, where they
are shopping, which restaurants they are thinking about going to, and
the list goes on and on. Just imagine thinking about everything you do
on the internet and your devices. That is open game.
The Fourth Amendment protects us against unreasonable searches. In
this day and age, when so much of our life is conducted over the
internet, Americans must have assurance that their web browsing, which
can reveal highly sensitive information, will not be unreasonably
intruded upon by Federal authorities without a search warrant and
without probable cause. This information provides an intimate window
into our lives. It can reveal a person's medical conditions, political
and religious views, and far more.
We need to make clear that government must demonstrate probable cause
to collect this type of personal information.
Second, we need to strengthen the oversight of FISA Courts. We know
these secret courts are subject to abuse. In 2015, Congress authorized
FISA Courts to appoint amici--friends of the court--in cases involving
novel
[[Page S2436]]
or significant interpretation of the law. This was a positive step
forward to provide independent oversight, but it appears there have
been only 16 cases in which amici have actually been appointed. Yet
there have been more cases than 16 in which novel issues were raised
and many more cases where an independent voice is needed to defend
civil rights in FISA Court proceedings.
The recent Department of Justice inspector general report examining
25 FISA applications underscores this need. The IG found errors and
inadequately supported facts in every application. An expanded amicus
role is necessary to bring greater accountability to the application
process.
I voted in support of the Lee-Leahy amendment that expands amici
participation to significant First Amendment activities; to matters
where a religious or political organization, a public official or
candidate or the news media is involved; and to matters approving new
technology or reauthorizing programmatic surveillance.
Third, we must make sure FISA applications are completely accurate
and all exculpatory evidence is disclosed. Accuracy and transparency
are critical to maintaining integrity within our justice system.
The Lee-Leahy amendment strengthens the requirements for accuracy and
disclosure of all information--including exculpatory information--in
FISA applications.
I am pleased this body stood in support of strengthening safeguards
in the FISA Court process. However, our failure to protect Americans
from the Federal Government looking over their shoulders while they are
on the internet and collecting personal information is unacceptable.
National security does not require the Federal Government intruding
upon the private lives of Americans without probable cause and a search
warrant.
Our liberties and freedoms define us as a nation. Either we should
reconsider the Wyden-Daines amendment--a motion to reconsider is
allowed at this point--or we should vote no on FISA reauthorization. We
don't need to sacrifice our liberties and freedoms for an illusion of
security.
One of our Founders way back in this country, Ben Franklin, said it a
little bit differently. He said: ``Those who would give up liberty in
the name of security deserve neither.'
[...]
The PRESIDING OFFICER. The Senator from Kentucky.
Amendment No. 1586
Mr. PAUL. The PATRIOT Act was begotten of the most unpatriotic of
ideas--that liberty can be exchanged for security. The history of the
PATRIOT Act shows that the exchange is a poor one.
As our liberty wanes and wastes away, we find that the promises of
security were an illusion. The history of the PATRIOT Act is really a
history of how power corrupts and how bias and malfeasance grow when
power is unchecked.
The PATRIOT Act allowed a secret court, FISA, to grant generalized
warrants to collect personal data from millions of Americans. The spies
who run these surveillance programs then lied--for years and years--to
us.
One of the most notorious of these liars was James Clapper. When
cross-examined under oath by Senator Wyden, James Clapper denied that
the government was collecting data on millions of Americans.
A month later, the whistleblower, Edward Snowden, revealed that
Clapper had lied. Snowden revealed that Clapper and others were using
the PATRIOT Act to spy on virtually every American. Snowden revealed
that the secret FISA Court was allowing a single court order to command
the collection of millions of Americans' personal phone data.
Most Members of Congress had no idea that this was going on. In fact,
one of the authors of the PATRIOT Act publicly expressed his shock that
such a massive surveillance of Americans was occurring with no
notification of Congress.
Clapper and others, though, said that is not true. They justified
their actions by saying: We have been briefing the Elite 8 Congressmen.
Who were the Elite 8, and who made them elite? The Elite 8 are the
majority and minority leaders of the House and the Senate and the
majority and minority leader of the Intelligence Committees of the
House and the Senate--eight people.
When they were quizzed about this program, most of them said they
couldn't remember ever being briefed on it.
But the real constitutional question is, have we not changed and
subverted the Constitution to make eight people more important than the
rest of us?
So this was a program where they were collecting the data on
everybody's phone calls--everybody in America--and you would think
there would have to be a debate and approval by Congress, but there
were only eight people, and those eight people seemed to be confused
that they had approved the program as well.
The idea that a single court order can allow the collection of
personal data from millions of people is antithetical to the intentions
of the Fourth Amendment.
The Fourth Amendment dictates that the government must identify an
[[Page S2438]]
individual and the items and the location to be searched. The Fourth
Amendment was intended to forbid general warrants or writs of
assistance that, historically, Monarchs had used indiscriminately to
collect vast amounts of either belongings or possessions of
individuals.
The Fourth Amendment was written to prevent that from happening.
The PATRIOT Act essentially allows for generalized warrants and the
bulk collection of personal data. The Fourth Amendment also dictates
that a search can only occur when the government proves to a judge that
there is probable cause that a crime has been committed. However, under
the PATRIOT Act they have lowered the standard.
So there is the constitutional standard--the Fourth Amendment. But,
under the PATRIOT Act, the standard now becomes if it is relevant to an
investigation. That is a much looser, broader standard, and it is not a
constitutional standard.
So the question is, Through these special, secret courts and through
the PATRIOT Act, can we allow things that the Constitution actually
prevents. What we have done is eroded protections for Americans.
So some of us have said the Constitution should still apply to
Americans. If you want to look at the data of foreigners or spy on
foreign countries or potential terrorists, by all means, do it, but
Americans should still be protected by the Constitution.
The PATRIOT Act doesn't provide this protection and allows anybody to
be investigated if the government can prove that it is relevant to an
investigation. That standard is so broad that it could mean almost
anything. It is hard to imagine something that could not be argued to
be relevant to an investigation.
To those of us who prize the rights guaranteed in the Bill of Rights,
the PATRIOT Act is a violation of our most precious rights. The PATRIOT
Act, in the end, is not patriotic. The PATRIOT Act makes an unholy and
unconstitutional exchange of liberty for a false sense of security. I,
for one, will oppose its reauthorization.
Today we are also here, though, to discuss the FISA Court that
interacts and uses some of these extra powers, these
extraconstitutional powers.
It has been revealed over the last few years that the FISA Court was
manipulated, lied to, and ultimately condoned the investigation of a
political campaign.
I believe that the authors of the FISA Court, who intended to
restrain unconstitutional searches, would be appalled at what the FISA
Court has become. They would be appalled that this secret court
intended to be used to investigate foreign spies and terrorists was
turned into a powerful and invasive force to infiltrate and disrupt the
political process.
It should not matter whether you are a Democrat or a Republican or a
Libertarian; we should all be appalled at this abuse of power.
The question is, How do we fix it? To my mind, there are two
approaches. No. 1, we could try to make the FISA Court less bad by
adding procedural hurdles to make it more like a constitutional court
or, No. 2, admit that the FISA Court cannot be made constitutional,
admit that FISA uses a less-than-constitutional standard when it allows
searches to be performed that do not meet the Fourth Amendment.
The Fourth Amendment requires probable cause that you have either
committed a crime or are committing a crime. The FISA Court only says
the government must prove or assert that there is probable cause that
you are connected to a foreign government.
As we have seen, the standards were so lax that when they went to the
Trump campaign and said that a certain person was related to a foreign
government, it turns out it was untrue. They didn't present facts to
the court that actually argued that he wasn't an agent of the foreign
government, and that person had no one to argue for him.
The deficiency of the FISA Court and why it is not constitutional is
that you don't get a lawyer. You actually don't even get told you have
been accused of a crime. The only reason we know that President Trump's
campaign got caught up in this is that he won. Because he won and now
has the power to open and put sunlight on this, we are now able to see
in.
If this had been an ordinary American caught up in this, you would
never be told, you would never get a lawyer, and you would be brought
before this investigative body and subjected to a search of vast
amounts of your private information without probable cause. That is not
constitutional, and I don't think we can make it constitutional. I
think we should admit that we can't constitutionally allow Americans to
be subjected to a search that doesn't follow the Fourth Amendment.
I believe there is no fixing the FISA Court to make it constitutional
for Americans. I believe the only solution is to exempt Americans from
the FISA Court.
If government wants to investigate a political campaign, which should
be a very rare and a very unusual circumstance, to have the government
involved in a political campaign, governments should request a Fourth
Amendment search from an article III constitutional court.
Some will say: Oh, it is hard; we will never get it. Guess what--even
constitutional warrants are mostly granted. The vast majority of them
are granted. But guess what--a judge will be a little reticent to get
involved in the political process because they know how heated it is
and how important it is to our Republic. But that is the way you should
investigate a campaign if you are going to.
Opponents of doing the tried and trusted constitutional way will
argue that it takes too long and it is too hard. But guess what--the
Constitution was meant to be an onerous standard. The Constitution was
meant to be rigorous. Our Founding Fathers understood that justice
cannot be achieved in secret courts that neither notify the accused nor
let the accused have legal representation. You can't find justice where
there is no adversarial process, where you don't get a lawyer.
I think it is high time we quit letting fear overrun our
constitutional duty. Today, I offer an amendment that restores the
Constitution for all Americans and forbids the secret FISA Court from
ever again meddling in our political process.
Mr. President, I call up my amendment No. 1586 and ask that it be
reported by number.
The PRESIDING OFFICER. The clerk will report the amendment by number.
The legislative clerk read as follows:
The Senator from Kentucky [Mr. Paul] proposes an amendment
numbered 1586.
The amendment is as follows
(Purpose: To amend the Foreign Intelligence Surveillance Act of 1978 to
prohibit the use of authorities under such Act to surveil United States
persons and to prohibit the use of information acquired under such Act
in any criminal, civil, or administrative proceeding or as part of any
criminal, civil, or administrative investigation, and for other
purposes)
At the appropriate place, insert the following:
SEC. ___. LIMITATION ON AUTHORITIES IN FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1978.
(a) Foreign Intelligence Surveillance Act of 1978.--
(1) In general.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the
end the following:
``TITLE IX--LIMITATIONS
``SEC. 901. LIMITATIONS ON AUTHORITIES TO SURVEIL UNITED
STATES PERSONS AND ON USE OF INFORMATION
CONCERNING UNITED STATES PERSONS.
``(a) Definitions.--In this section:
``(1) Pen register and trap and trace device.--The terms
`pen register' and `trap and trace device' have the meanings
given such terms in section 3127 of title 18, United States
Code.
``(2) United states person.--The term `United States
person' has the meaning given such term in section 101.
``(b) Limitation on Authorities.--Notwithstanding any other
provision of this Act, an officer of the United States may
not under this Act request an order for, and the Foreign
Intelligence Surveillance Court may not under this Act
order--
``(1) electronic surveillance of a United States person;
``(2) a physical search of a premises, information,
material, or property used exclusively by, or under the open
and exclusive control of, a United States person;
``(3) approval of the installation and use of a pen
register or trap and trace device to obtain information
concerning a United States person;
``(4) the production of tangible things (including books,
records, papers, documents, and other items) concerning a
United States person; or
``(5) the targeting of a United States person for the
acquisition of information.
[[Page S2439]]
``(c) Limitation on Use of Information Concerning United
States Persons.--
``(1) Definition of aggrieved person.--In this subsection,
the term `aggrieved person' means a person who is the target
of any surveillance activity under this Act or any other
person whose communications or activities were subject to any
surveillance activity under this Act.
``(2) In general.--Except as provided in paragraph (3), any
information concerning a United States person acquired under
this Act shall not be used in evidence against that United
States person in any criminal, civil, or administrative
proceeding or as part of any criminal, civil, or
administrative investigation.
``(3) Use by aggrieved persons.--An aggrieved person who is
a United States person may use information concerning such
person acquired under this Act in a criminal, civil, or
administrative proceeding or as part of a criminal, civil, or
administrative investigation.
``(d) Warrants.--An officer of the United States seeking to
conduct electronic surveillance, a physical search,
installation and use of a pen register or trap and trace
device, production of tangible things, or targeting for
acquisition of information with respect to a United States
person as described in subsection (b) may only conduct such
activities pursuant to a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure by a
Federal court other than the Foreign Intelligence
Surveillance Court.''.
(2) Clerical amendment.--The table of contents preceding
section 101 is amended by adding at the end the following:
``TITLE IX--LIMITATIONS
``Sec. 901. Limitations on authorities to surveil United States persons
and on use of information concerning United States
persons.''.
(b) Limitation on Surveillance Under Executive Order
12333.--
(1) Definitions.--In this subsection:
(A) Aggrieved person.--The term ``aggrieved person'' means
a person who is the target of any surveillance activity under
Executive Order 12333 (50 U.S.C. 3001 note; relating to
United States intelligence activities) or any other person
whose communications or activities were subject to any
surveillance activity under such Executive Order.
(B) Pen register; trap and trace device; united states
person.--The terms ``pen register'', ``trap and trace
device'', and ``United States person'' have the meanings
given such terms in section 901 of the Foreign Intelligence
Surveillance Act of 1978, as added by subsection (a).
(2) Limitation.--Except as provided in paragraph (3), any
information concerning a United States person acquired under
Executive Order 12333 (50 U.S.C. 3001 note; relating to
United States intelligence activities) shall not be used in
evidence against that United States person in any criminal,
civil, or administrative proceeding or as part of any
criminal, civil, or administrative investigation.
(3) Use by aggrieved persons.--An aggrieved person who is a
United States person may use information concerning such
person acquired under Executive Order 12333 in a criminal,
civil, or administrative proceeding or as part of a criminal,
civil, or administrative investigation.
Mr. PAUL. 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. BLUMENTHAL. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Vote on Amendment No. 1586
Mr. BLUMENTHAL. Mr. President, I ask that the question be called on
the vote.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to the Paul amendment.
Mrs. FISCHER. 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), the Senator from Arizona (Ms. McSally),
and the Senator from Nebraska (Mr. Sasse).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``nay'' and the Senator from Arizona (Ms.
McSally) would have voted ``nay.''
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is
necessarily absent.
The PRESIDING OFFICER (Mrs. Fischer). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 11, nays 85, as follows:
[Rollcall Vote No. 91 Leg.]
YEAS--11
Blackburn
Braun
Cruz
Daines
Kennedy
Lee
Moran
Murkowski
Paul
Scott (FL)
Sullivan
NAYS--85
Baldwin
Barrasso
Bennet
Blumenthal
Blunt
Booker
Boozman
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Duckworth
Durbin
Enzi
Ernst
Feinstein
Fischer
Gardner
Gillibrand
Graham
Grassley
Harris
Hassan
Hawley
Heinrich
Hirono
Hoeven
Hyde-Smith
Inhofe
Johnson
Jones
Kaine
King
Klobuchar
Lankford
Leahy
Loeffler
Manchin
Markey
McConnell
Menendez
Merkley
Murphy
Murray
Perdue
Peters
Portman
Reed
Risch
Roberts
Romney
Rosen
Rounds
Rubio
Schatz
Schumer
Scott (SC)
Shaheen
Shelby
Sinema
Smith
Stabenow
Tester
Thune
Tillis
Toomey
Udall
Van Hollen
Warner
Warren
Whitehouse
Wicker
Wyden
Young
NOT VOTING--4
Alexander
McSally
Sanders
Sasse
The PRESIDING OFFICER. On this vote, the yeas are 11, the nays are
85.
Under the previous order requiring 60 votes for the adoption of this
amendment, the amendment is not agreed to.
The amendment (No. 1586) was rejected.
[...]
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. DUCKWORTH. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. DUCKWORTH. Mr. President, I ask unanimous consent to begin the
vote immediately.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendments were ordered to be engrossed and the bill to be read a
third time.
The bill was read the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass?
Ms. DUCKWORTH. Mr. President, 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 legislative clerk called the roll.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Tennessee (Mr. Alexander), the Senator from Arizona (Ms. McSally),
and the Senator from Nebraska (Mr. Sasse).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea'' and the Senator from Arizona (Ms.
McSally) would have voted ``yea.''
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 80, nays 16, as follows:
[Rollcall Vote No. 92 Leg.]
YEAS--80
Barrasso
Bennet
Blackburn
Blumenthal
Blunt
Booker
Boozman
Braun
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Cruz
Daines
Duckworth
Enzi
Ernst
Feinstein
Fischer
Gardner
Gillibrand
Graham
Grassley
Harris
Hassan
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Jones
Kaine
Kennedy
King
Klobuchar
Lankford
Leahy
Lee
Loeffler
Manchin
McConnell
Menendez
Moran
Murkowski
Murphy
Perdue
Peters
Portman
Reed
Risch
Roberts
Romney
Rosen
Rounds
Rubio
Schumer
Scott (FL)
Scott (SC)
Shaheen
Shelby
Sinema
Smith
Stabenow
Sullivan
Thune
Tillis
Toomey
Van Hollen
Warner
Whitehouse
Wicker
Young
NAYS--16
Baldwin
Brown
Burr
Cantwell
Durbin
Heinrich
Hirono
Markey
Merkley
Murray
Paul
Schatz
Tester
Udall
Warren
Wyden
NOT VOTING--4
Alexander
McSally
Sanders
Sasse
The bill (H.R. 6172), as amended, was passed
The PRESIDING OFFICER. The Senator from Wisconsin.
____________________
