[Congressional Record Volume 159, Number 111 (Tuesday, July 30, 2013)]
[Senate]
[Pages S6052-S6056]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ENDING BULK COLLECTION OF PHONE RECORDS
Mr. UDALL of Colorado. I welcome this opportunity to speak on the
floor about the National Security Agency surveillance programs, their
effectiveness, and their future.
I am proud to be joined by my colleague from Oregon, Senator Wyden,
who will comment as well after my remarks. He has been a stalwart
leader on these issues, and it has been my honor to join forces with
him and to draw attention to this very important discussion President
Obama recently welcomed.
He called for a public debate on finding the right balance between
national security and privacy in the context of NSA's surveillance
programs.
His call is long overdue, and it is an opportunity we should not
squander. As I have said time and time again to Coloradans and as they
have said back to me as well, we owe it to the American people to have
an open, transparent debate about the limits of the Federal
Government's surveillance powers and how we reconcile the need to keep
our families safe while still respecting our hard-won constitutional
rights to privacy.
Although I would have preferred that this debate would have been
kicked off by more transparent actions by the White House instead of by
unauthorized leaks, we are nonetheless presented with a unique
opportunity--an opportunity to finally have an open dialog about the
limits of our government's surveillance powers, particularly those
relating to the vast dragnet of Americans' phone records under section
215 of the PATRIOT Act.
This is a debate in which I feel privileged to take part. It is a
debate that Senator Wyden has been a part of since before I was elected
to the Congress and one that I have been engaged in for a number of
years now.
I want to be clear. I have acted in every possible way that I could
within the confines of our rules that protect classified information to
oppose these practices and bring them to light for the American people.
I have fought against overly intrusive sections of the PATRIOT Act and
the FISA Amendments Act and registered objections repeatedly with the
administration. I believe these efforts are critical for protecting our
privacy and also ensuring our national security.
I serve on both the Senate Armed Services Committee and the Senate
Intelligence Committee, and in those assignments I focus every day on
keeping Americans safe, at home and abroad. I recognize that we still
live in a world where terrorism is a serious threat to our country, to
our economy, and to American lives. Make no mistake, our government
needs the appropriate surveillance and antiterrorism tools to combat
the serious threats to our Nation. But it is up to the White House and
Congress to ensure that these tools strike the right balance between
keeping us safe and protecting our constitutional right to privacy.
This is a balance I know we can achieve, but, in my view, the PATRIOT
Act's bulk phone records collection program does not achieve that
balance. That is why I am here on the Senate floor with my colleague
Senator Wyden to call for an end to the bulk phone records collection
program, as we know it today.
Two years ago we were here on the Senate floor considering extending
certain PATRIOT Act provisions. At that time I argued that the sweeping
surveillance powers we were debating did not contain sufficient
safeguards to preserve the privacy rights of Americans. In particular,
I argued that the PATRIOT Act's business records provision--or section
215--permits the collection of records on law-abiding Americans who
have no connection to terrorism or espionage. As I said at that time,
we ought to be able to at least agree that an investigation under
PATRIOT Act powers should have a terrorist- or espionage-related focus.
We all agree that the intelligence community needs effective tools to
combat terrorism, but we must provide those tools in a way that also
protects the constitutional freedoms of our people and that lives up to
the standard of transparency our democracy demands. The Bill of Rights
is the strongest document we have. Another way to put it: It is the
biggest, baddest weapon we have. We need to stand with the Bill of
Rights and in this case the Fourth Amendment.
Following Mr. Snowden's actions and the subsequent declassification
of information concerning the NSA's surveillance programs, Americans in
recent weeks are coming to understand what it means when section 215 of
the PATRIOT Act says the government can obtain ``any tangible thing''
relevant to a national security investigation. That is the Foreign
Intelligence Surveillance Court's way of saying that section 215
permits the collection of millions of Americans' phone records on a
daily, ongoing basis. As a member of the Senate Intelligence Committee,
I have repeatedly expressed concern that the FISA Court's secret
interpretation of this provision of the PATRIOT Act is at odds with the
plain meaning of the law. This secrecy has prevented Americans from
understanding how this law is being implemented in their name.
In my view and the view of many Americans, this large-scale
collection of information by the government has very significant
privacy implications for all of us. What do I mean by that? Information
about our phone calls--or, as it is known, ``metadata''--may sound
pretty simple and innocuous, but I believe that when law-abiding
Americans call up their friends, family, doctors, religious leaders, or
anyone else, the information on whom they call, when they call, and
where they call is private information and should be subject to strong
privacy protections.
[[Page S6053]]
I have heard it said that the bulk phone records program collects
nothing beyond what you could find in a phone book. But let's be clear
about exactly what this program does. It collects the very personal
details of our phone calls--the who, where, when, and how long--and
stores them in a database. This doesn't just happen for those who are
suspected of having some connection to terrorism; this program collects
the phone records of literally millions of Americans. This is a far
greater intrusion into our privacy than being voluntarily listed in the
Yellow Pages, and it is the reason why I am calling on the White House
and Congress to immediately reform this program.
Let me reiterate that it is absolutely possible to have both privacy
and security. Yet, in the case of the bulk phone records collection
program, Senator Wyden and I believe we aren't getting enough of
either. Not only does this program unreasonably intrude on Americans'
privacy, but it also does so without achieving the alleged security
gains. For instance, in recent weeks the intelligence community has
made new assertions about the value of recently declassified NSA
surveillance programs, but in doing so they have conflated two
programs: section 702 of the Foreign Intelligence Surveillance Act
regarding foreigners' Internet communications and section 215 of the
PATRIOT Act regarding bulk phone records. It appears, however, that the
bulk phone records collection program alone played little or no role in
disrupting terrorist plots--I say this as someone who has been fully
briefed on these terror-related events--nor has it been demonstrated
that this program even provides any uniquely valuable intelligence.
Therefore, saying, as the intelligence community has, that ``these
programs'' together have disrupted ``dozens of potential terrorist
plots'' is misleading.
While the intelligence community has been conflating these two
programs, some of my colleagues in Congress in recent days have been
going even further to say that the phone records program alone has been
greatly successful. They have said it has saved lives and prevented
dozens of terrorist plots. As someone who has been presented with the
same information as my colleagues on the much-discussed 54 terror-
related events, I have to say I disagree. Again, I have seen no
evidence that the bulk phone records collection program alone has
played a meaningful role, if any, in disrupting terrorist plots.
I have yet to see any convincing reason why agencies investigating
terrorism cannot simply obtain information directly from phone
companies using a regular court order. It may be more convenient for
the NSA to collect phone records in bulk rather than asking phone
companies to search for specific phone numbers, but convenience alone
cannot justify the collection of the personal information of millions
of innocent, ordinary, law-abiding Americans, especially when the same
or more information can be obtained using less intrusive methods. A few
hundred court orders per year would clearly not overwhelm the FISA
Court, and the law already allows for emergency authorizations to get
these records quickly in urgent circumstances.
Senator Wyden and I are not alone in believing there is a more
effective and less intrusive way to collect this information. Even
before the nature of the bulk phone records collection program was
declassified, there was support for narrowing the language of section
215 from many Members of Congress of both political parties. In fact,
when the PATRIOT Act reauthorization passed the Senate in 2005 by
unanimous consent, it included commonsense language that would have
limited the government's ability to collect Americans' personal
information unless there is a demonstrated link to terrorism or
espionage. That language was designed to, among other things, protect
our Fourth Amendment constitutional rights and put a check on
government power. While that language did not make it into the final
conference bill, it demonstrated that bipartisan agreement on reforms
to section 215 is possible.
Let's fast forward to 2011, when the Senate again took up the
extension of a number of expiring provisions of the PATRIOT Act. I
offered an amendment drawn directly from language in the 2005 Senate-
passed bill to narrow the application of this provision. That
amendment, unfortunately, did not receive a vote. But this Congress I
introduced bipartisan legislation with Senator Wyden based on that same
language and principles, and we are now joined by a strong bipartisan
group of our colleagues from across the country and all along the
political spectrum, including Senators Durbin, Murkowski, Begich, Tom
Udall, Merkley, Lee, and Heinrich. Our bill will responsibly narrow the
PATRIOT Act's section 215 collection authority to make it less
intrusive on the privacy of law-abiding Americans. Our legislation
would still allow law enforcement and intelligence agencies to use the
PATRIOT Act to obtain a wide range of records in the course of
terrorism- and espionage-related investigations, but it would require
them to demonstrate that the records are in some way connected to
terrorism or clandestine intelligence activities--which is not the case
today.
This past week there was a strong bipartisan vote in the U.S. House
of Representatives to curtail NSA's bulk phone records collection.
Although the legislation didn't pass, the American people are demanding
action and those who share our concerns are on the march. It is time to
take action.
It is common sense that our law enforcement agencies should have
reason to suspect a connection between the records they are seeking and
a terrorism or espionage investigation before using these broad
authorities to collect the private information of Americans. If the
government can use these powers to collect information on people who
have no connection to terrorism, then where does it end? Is there no
amount of information that our government can collect that would be off
limits? What is next--our medical records?
We must be able to put in place reasonable measures that allow our
law enforcement agencies to pursue enemies who would try to harm us,
while protecting our rights as Americans.
That is why I believe if an investigation cannot assert some nexus to
terrorism or espionage, then the Government should keep its hands off
the phone records of law-abiding Americans. These are the kinds of
reasonable, commonsense limits on the Government's powers that
Coloradoans tell me are necessary to keep us safe while also respecting
our privacy.
That takes me back to the statement I made at the outset. I believe
it is time to end the bulk collection program as we know it. Tonight I
am calling on the White House to begin to make the administrative
changes to end the bulk collection of Americans' phone records and to
conduct the program instead through direct queries to phone companies
where there is a connection to terrorism or espionage. Under this
targeted approach, our Government would retain its broad authorities to
investigate terrorism while ordinary Americans will be protected from
overly intrusive surveillance activities.
Congress should support the administration's move in this direction
by passing our legislation to end bulk collection. Passage of our
bipartisan bill would prevent unwarranted future breaches of Americans'
privacy rights and focus on the real threats to our national security.
Taking into account the serious privacy concerns raised by the bulk
collection program, the lack of demonstrated unique value of the
program, and our ability through direct queries to the phone companies
to collect the data in the same but less intrusive way, I believe the
administration--I hope the administration will see the value in working
with Congress to end the bulk collection of phone records conducted
under the PATRIOT Act's section 215 authorities. I pledge to work with
the administration and all of my colleagues to see this through.
Let me end on this note. We need to strike a better balance between
protecting our country against the threat of terrorism and defending
our constitutional rights. The bulk records collection program as we
know it today does not meet this balance test, and that is why I
believe it must end.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Madam President, before he leaves the floor, I want to
tell
[[Page S6054]]
Senator Udall how much I have appreciated having him in that
intelligence room, because he has been a strong advocate for making
sure our country can have security and liberty in those classified
meetings, just as he has done tonight. It is great to have him on the
committee and to have him as a partner in these efforts.
He is so right when he stated tonight that this is a debate that
should have begun long ago. It is a debate that should have been
started by elected officials and not by a government contractor. I very
much appreciate the Senator's remarks. I think he made it clear that we
are going to stay at this until we get it fixed, and I very much
appreciate his leadership.
As Senator Udall has made clear, these issues are about as important
as it gets. When you are talking about how you can secure these bedrock
American values--security and liberty--this is right at the heart of
what Americans care about most. For too long, my view is the American
people have essentially been presented with false choices. Americans
have been told they can have one or the other: They can have security
or they can have liberty, but they cannot have both. Suffice it to say,
in the last 8 weeks, as this debate has evolved, I think Americans have
come to understand that this set of false choices is not what this
debate is all about, and they deserve better.
As this debate has unfolded, whether you are in a lunchroom at work
or a senior citizens center or you are looking at a political opinion
poll, the polls have changed something like 20 points just in the last
few weeks, with Americans saying, particularly, that the bulk phone
records collection program is an intrusion on the rights of law-abiding
Americans. Whether it is what citizens say at townhall meetings or what
they say in the company lunchroom or in senior citizens centers,
Americans have come to understand that these false choices are not what
the discussion is all about. Americans have come to figure it out.
Frankly, a big part of the problem in the past--and I documented it
last week--is leaders in the intelligence community have made
misleading statements, repeatedly. It is not just a question of keeping
the American people in the dark--which was true--but the American
people were actively misled on a number of occasions.
Senator Udall and I have been walking everyone through that. The bulk
phone records collection program is often compared to a grand jury
subpoena approach. That is about as far-fetched as it gets. Even
national security lawyers have made fun of that kind of argument in
publications such as the Wall Street Journal.
Very often when I talk to lawyers--the distinguished Presiding
Officer is, of course, a particularly illustrious lawyer and has taught
in the field. I often say when I am visiting with lawyers, or I ask for
a show of hands: Does anybody know of a grand jury subpoena where you
can have the bulk collection of millions of phone records of law-
abiding Americans? Come on up to me and tell me after the meeting is
over.
I do not exactly get swarmed. The reason is there are not any.
One of the reasons I wanted to touch on these misleading statements
is that, just in the last few days--Senator Udall touched on this--
there has been an effort to commingle the two programs. One of them is
called the FISA 702 Program, the PRISM Program, which targets
foreigners and has useful value. We have made that clear. It can be
improved. I came to that conclusion when I was finally able to get
declassified a finding from the FISA Court that on at least one
occasion the Fourth Amendment had been violated in connection with the
use of the 702 Program. But even with that, I am of the view that
provides useful value.
But what a number of the leaders of the intelligence community have
done is essentially commingled their advocacy of these programs so that
702 and the bulk collection program essentially ride together, when in
reality, 702--which Senator Udall and I have supported--I think we can
improve it with these privacy reforms--in effect, 702 does all the
work. The bulk collection program, which does intrude on the rights of
millions of law-abiding Americans, is essentially along for the ride.
But you would not know that when you hear these statements from a
number of the leaders in the intelligence community, when they just say
``these programs,'' of course, are what keeps us safe.
In addition, I thought it was important to briefly start this evening
by mentioning that over the last few days there have been a number of
comments about whether the PATRIOT Act has violated the rights of
Americans with respect to this bulk collection program. A number of
commentators and others have said: ``Where are the violations? I
haven't seen any violations.''
The Director of National Intelligence said last Friday, in a letter
to you and me and Senator Udall and 23 other of our colleagues: Yes,
there have been violations of the PATRIOT Act--when he said
specifically that the Government had violated court orders on the bulk
collection of those phone records.
I am not allowed to discuss the classified nature of that, but I want
to make sure those who are following this debate know that from my
vantage point, reading those documents that are classified, these
violations are more serious than have been stated by the intelligence
community, and in my view that is very troubling. So I do hope Senators
will go to the Intelligence Committee and ask to see those classified
documents because I think when they read them--I think they will come
to the conclusion to which I have come that, not only is what was
stated by the Director of National Intelligence in that letter that was
sent to you and me and Senator Udall and 23 other Senators--not only
was that correct, but I think Senators who read those classified
documents will also come to the conclusion that the violations are more
serious than they thought--than the intelligence community portrayed.
Let me, if I might, talk a little bit more about why we spent several
years examining this bulk phone records program. First, I think it is
important for citizens to know that the ability to conduct this secret
surveillance that lays bare the personal lives of millions of law-
abiding Americans, coupled with the ability to conjure up these legal
theories as to why this is acceptable, and then have such limited
oversight through this one-sided adversarial FISA Court, in my view, is
an opportunity for unprecedented control over the private lives of
Americans. That is why Senator Udall and I have spent all this time
focused on this issue.
I thought also tonight, and having done this before, I will provide a
little more history as to how we got to this particular place. When I
came to the Senate early on I had a chance to work with a number of
colleagues who saw the extent of these problems--early on. One of them
was our former colleague, Senator Russ Feingold.
Senator Feingold saw the problems that the PATRIOT Act posed before
they were apparent to many Senators. He and his staff took the
responsibility to protect both American security and American liberties
very seriously. In 2007, the two of us came to understand that the
PATRIOT Act was being secretly interpreted to justify the bulk
collection of Americans' records, and we made it clear that we thought,
first of all, that was something very different from what Americans
thought was going on.
We thought it was very different, for example, from the plain reading
of section 215 of the PATRIOT Act, and we thought that the language of
the PATRIOT Act had been stretched beyond recognition because the
language in the PATRIOT Act spoke to relevance and a sense that it was
relevant to suspected terror activity, rather than something that
created this enormous leap from what was in the statute that called for
relevance to collecting millions and millions of records on law-abiding
people.
So Senator Feingold and I dutifully set about to write classified
letters to senior officials urging them to make their official
interpretation of the PATRIOT Act public. We said at the time that for
intelligence activities to be sustainable and effective, they have to
be based on publicly understood laws and be consistent with Americans'
understanding of their own privacy rights. This, in our view, was
clearly not the case with the bulk records collection because, of
course, the government's official interpretation of the
[[Page S6055]]
PATRIOT Act was a tightly guarded secret.
Back then in those early days we were rebuffed when we made repeated
requests that the intelligence community inform the public what the
government had secretly decided the law actually meant. In fact, there
was a secret court opinion that authorized massive dragnet domestic
surveillance, and the American people, by that point, were essentially
in the dark about what their government was doing with respect to
interpreting an important law.
In 2009, as the expiration of the date for the PATRIOT Act
approached, Senator Feingold and I began to caution our colleagues and
the public that our people were not getting the full story about the
PATRIOT Act. At that time, we'd had the good fortune of having our
colleague, Senator Durbin, on the committee, and we all wrote public
letters. We authored various articles. We wrote editorial pages for the
newspapers and made statements for the Congressional Record. We raised
issues about this to the extent we could at public hearings. But, of
course, the Senate rules regarding the protection of classified
information limited what we could say.
One point I have tried to make clear is the intelligence rules--the
classification rules don't let a member of the committee tap the truth
out in Morse Code. We have to comply with the rules, and they are very
laborious. If we don't comply with the rules, we cannot serve on the
Intelligence Committee and be a watchdog for some of these efforts that
we think goes right to the heart of protecting American security and
American liberty.
So we decided--a small group of us who shared these views--if we
wanted to have the opportunity to play that watchdog rule, we needed to
work within the rules. So we did everything we could--recognizing that
we can't tap out classified information in Morse Code--to alert the
public about what was going on.
After a series of short-term extensions, the PATRIOT Act came up for
a long-term reauthorization in the spring of 2011. By that time,
Senator Feingold had been replaced on the committee by Senator Udall.
He, as my colleagues know, shares these concerns about the bulk
collection of phone records on millions of law-abiding Americans, and
we are lucky he has been a prominent leader in the cause of protecting,
security, and liberty.
During the 2011 reauthorization, Senator Udall and I spoke to
colleagues. We invited colleagues to secure settings so we could lay
out what was actually happening, and many of those colleagues joined us
on the floor to oppose the extension of the PATRIOT Act for 4 more
years.
During that debate, I came to the floor and said:
When the American people find out how their government has
secretly interpreted the PATRIOT Act, they will be stunned
and they will be angry.
That week the Senate voted to extend the PATRIOT Act until 2015, but
those of us who opposed the extension continued the fight in the months
that followed.
At that time the NSA was also conducting a bulk e-mail records
program in addition to the bulk phone records program that is ongoing
today. Senator Udall and I were concerned about this program's impact
on our liberties and our privacy rights, and back in the Intelligence
Committee, we spent a big chunk of 2011 pressing intelligence officials
to provide evidence of its effectiveness. It turned out that the
intelligence community was unable to provide any such evidence.
Intelligence agencies have made statements to both Congress and the
Foreign Intelligence Surveillance Court that--they had significantly
exaggerated the effectiveness of the bulk e-mail program. When Senator
Udall and I pressed them to back up these statements, they couldn't do
it. The bulk e-mail records program was shut down that year.
Our experience with the bulk e-mail records program showed us that
the Intelligence Agency's assessments about the usefulness of a number
of these particular programs, even big ones, are not always accurate.
Now, that doesn't mean that intelligence officials were deliberately
lying. In a number of instances--as far as I could tell--they believed
their claims that the bulk e-mail surveillance program was effective,
even though it was actually close to worthless. This was an important
reminder that even if intelligence officials are well intentioned, they
can be dead wrong, and that any policymaker who simply defers to
intelligence officials' conclusions without asking to see their
evidence is making a mistake.
As we looked at that evidence, Senator Udall and I found that the
claims about the effectiveness of the bulk phone records program also
did not seem well supported by the facts. So in March of 2012, we wrote
to the Attorney General expressly with this concern. In our letter we
said:
In recent months we have grown increasingly skeptical about
the actual value of [this] ``intelligence collection
operation.''
And we added:
This has come as a surprise to us, as we were initially
inclined to take the executive branch's assertions about the
importance of this ``operation'' at face value.
The Department of Justice, unfortunately, decided not to respond to
our letter, but we continued our efforts to educate the public and to
call out senior officials from intelligence agencies and the Department
of Justice as they repeatedly made misleading statements about domestic
surveillance.
In June of this year, disclosures by the Washington Post and the
Guardian newspaper revealed the fact of bulk collection to the American
people. This sparked the debate that is now ongoing about whether
offering up the personal records of ordinary Americans is the best way
to protect our security and our liberty. This debate--as I indicated
when Senator Udall was on the floor--should have started a long time
ago, but I am sure glad it is finally happening now.
The fact is that Americans' phone records can reveal a lot of private
information. If you know, for example, that somebody called a
psychiatrist three times in a week and twice after midnight, you know a
lot about that person. If you are vacuuming up information on whom
Americans call, when they call, and how long they talked, you are
collecting an astounding amount of information about a huge number of
law-abiding Americans.
The intelligence agencies try to emphasize that they have rules about
who can look at these bulk phone records and when. There has been a lot
said on cable by the talking heads on TV, and I want to emphasize, none
of these rules require the NSA to go back to a court to look at
Americans' phone records. None of these rules erase the privacy impact
of scooping up all of these records in the first place. On top of that,
as I indicated in the beginning, there have been a number of serious
violations of those rules.
The Senators who got the letter last Friday know that, and I want to
tell all the other Senators on both sides of the aisle that the
violations--as I have touched on tonight--were a lot more serious than
the public has been told. I believe the American people deserve to know
more details about these violations that were described last Friday by
Director Clapper.
I am going to keep pressing to make more of these details public. It
is my view that the information about the details of the violations of
the court orders with respect to the bulk phone record collection
program--the admission that the court orders have been violated--has
not been, I think, fully fleshed out by the intelligence community. I
think a considerable amount of additional information can be offered
without in any way compromising our national security.
If the impact on America's liberties wasn't bad enough, it is made
even worse by the fact that this program--when we asked and asked--does
not seem to have any unique value. I will explain briefly what it
means.
Mr. President, I ask unanimous consent for 7 additional minutes.
The PRESIDING OFFICER (Mr. Donnelly). Without objection, it is so
ordered.
Mr. WYDEN. Mr. President, I will see if I can beat the clock because
I know colleagues are waiting. In fact, Senator Baldwin has been a
great advocate for liberties and showing that liberty and security are
compatible, both when she was a Member of the other body and here when
she was part of our group, and I thank her for it.
Intelligence officials can only point to two cases where this
program--the
[[Page S6056]]
bulk phone records collection program--actually provided useful
information about an individual involved in terrorist activity. In both
of these cases, the government had all the information it needed to go
to the phone company and get an individual court order and emergency
authorization for the phone records they needed.
In both of these cases, the individuals who were identified using
these phone records were arrested months or years after they were first
identified, but if government agents believed that the situation was
urgent, they could have used emergency authorizations to obtain their
phone records more quickly. I am glad both of these cases resolved the
way they did. I am proud that our intelligence agencies and law
enforcement individuals were able to identify and arrest those who were
involved in terrorist acts.
In one case four men in California were arrested for sending money to
a militant group in Somalia. In the other case they arrested a co-
conspirator of Mr. Zazi a few months after Zazi's plot was disrupted.
These men committed serious crimes. They are now being punished with
the full weight of the justice system.
What I don't see, however, is any evidence that the U.S. Government
needed to operate a giant domestic phone records surveillance program
in order to catch these individuals. I have seen no evidence--none--
that this dragnet phone records program has provided any actual unique
value for the American people. In every instance in which the NSA has
searched through these bulk phone records, it had enough evidence to
get a court order for the information it was searching for.
Getting a few hundred additional court orders every year would
clearly not overwhelm the Foreign Intelligence Surveillance Court. The
intelligence agencies may argue that collecting Americans' phone
records in bulk is more convenient than getting individual court
orders, but convenience alone does not justify the massive intrusion on
the privacy of ordinary Americans. I believe it is vitally important to
protect the safety and liberty of our people. I don't see any evidence
that this program helps protect either. That ought to be the standard
of any domestic surveillance program. If the bulk collection program
doesn't protect privacy or security, then it ought to end--plain and
simple.
The executive branch simply has not shown anything close to an
adequate justification for this massive dragnet surveillance that has
compromised the civil liberties of millions of Americans. I am not sure
they ever could, but I am confident that I have not seen it as yet.
Now, let me close by way of saying that over the last few weeks we
have seen extraordinary support for reform. Last week over 200 Members
of the other body voted to end the bulk phone records collection
program, and a number of the Members who voted against ending it at
that time made it clear they have serious concerns they want to
address. So there are going to be more votes. Make no mistake about it,
there are going to be more votes on whether to end the bulk collection
of phone records on law-abiding Americans in the 113th Congress. And
there are going to be efforts to reform how the entire U.S.
surveillance system works.
One of the most important reforms will be to make the significant
rulings of the Foreign Intelligence Surveillance Court public, which is
a goal I have been pursuing for several years.
Additionally, I believe Congress needs to reform the process for
arguing cases before the court. Right now the government lawyers walk
in with an argument for why the government should be allowed to do
something, and there is no one to argue the other side. That is not
unusual if the court is considering a routine warrant request, but it
is very unusual when a court is doing major legal or constitutional
analysis.
I believe Congress needs to create a way to advocate for the public--
a public advocate to argue cases before the court, because making this
court more transparent and more adversarial is a way to ensure that
Americans can have security and liberty. Of course, the relevant
provisions of the PATRIOT Act itself will be expiring in 2015. I don't
think there is any reason for the administration to wait for Congress
to act.
The executive branch can take action right now. They can and should
continue to obtain the records of anyone suspected of connections to
terror or other nefarious activity, and at the same time they can
restore protections for Americans' Fourth Amendment rights. I am very
interested in working with the administration on these issues, but they
can move of their own volition.
One way or another, we are going to stay at this until, at this
unique time in our constitutional history, we have revised our
surveillance laws so we can have security and liberty. Colleagues are
coming to this cause. Senator Blumenthal has particularly recommended a
number of constructive FISA Court changes over the last few months. I
hope colleagues will support that, and I hope they will see this unique
time in our history when it is critically important that these
surveillance laws that I and Senator Udall have talked about tonight
can be reformed and we do it so as to protect the bedrock of American
values, both security and liberty.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that I and
Senator Blumenthal from Connecticut and Senator Baldwin from Wisconsin
and, if he is able to join us, Senator Murphy from Connecticut be
allowed to engage in a colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.
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