[Congressional Record Volume 159, Number 166 (Wednesday, November 20, 2013)]
[Senate]
[Pages S8346-S8348]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SURVEILLANCE REFORM

  Mr. UDALL of Colorado. Mr. President, to start, I would like to pay 
tribute to my two colleagues, Senator Casey and Senator Ayotte, for 
their focus on human rights and particularly the rights of women 
wherever those women may live.
  I rise tonight to talk about the rights that are enshrined in our 
Bill of Rights. To that particular key concern of Americans, I wish to 
talk about the importance of reforming our domestic surveillance laws.
  As Senator Wyden and I both enter this discussion, we have one 
general goal in mind; that is, to find a proper balance between keeping 
our Nation safe from terrorism and still protecting our cherished 
constitutional rights.
  Senator Wyden and I are both members of the Senate Intelligence 
Committee. We have argued for years that the government's domestic 
surveillance authorities need to be narrowed, and we are going to keep 
leading this fight in the days, weeks, and months to come. As part of 
this ongoing effort, we recently introduced comprehensive bipartisan 
legislation that would end the NSA's selection of millions of innocent 
Americans' private phone records, shield Americans from warrantless 
searches of their communications, and install a constitutional advocate 
at the Foreign Intelligence Surveillance Court.
  We believe that overly intrusive domestic surveillance programs, 
misleading statements made by senior intelligence officials, and 
revelations about how secret courts have handed down secret rulings on 
secret law have eroded the trust and confidence of the American people. 
Simply put, we need to restore this trust, and the best way to do that 
is to carve out time and hold a vigorous and substantive debate here on 
the Senate floor--a debate the American people have demanded and 
deserve.
  Senator Leahy, chairman of the Judiciary Committee, introduced his 
own comprehensive reform proposal last month with Representative 
Sensenbrenner. Representative Sensenbrenner is a key figure because he 
was the original author of the PATRIOT Act. He has had concerns. He has 
joined forces with Senator Leahy. This bipartisan plan, the Leahy-
Sensenbrenner plan, includes many of the proposals Senator Wyden and I 
have long called for, and we are proud to support this effort.
  Let me be clear. This issue is not going away. It will not go away 
because more and more Americans and more and more of our colleagues are 
coming to understand the true overreach of our Nation's surveillance 
programs and the effect on American privacy. This issue is not going to 
go away because we are not going to stop shining a light on the 
potential for future abuse that comes with our government's secret 
interpretation of its authorities under the Foreign Intelligence 
Surveillance Act.
  I truly believe that ultimately our efforts--the efforts of Senator 
Wyden, Chairman Leahy, Representative Sensenbrenner, Senator Paul, 
Senator Blumenthal, the Presiding Officer, myself, and a growing number 
of others--will lead to a majority of this Congress acting in 
commonsense ways to protect the privacy of Americans.
  We are here today on the floor in the midst of consideration of a 
very critical piece of legislation for our national security and for 
the well-being of our men and women in uniform, the Defense 
Authorization Act. I am a member of the Armed Services Committee. I 
have the great privilege of chairing the Subcommittee on Strategic 
Forces. I know as well as anyone that this is a must-pass bill. The 
issues we debated this week related to Guantanamo Bay and the scourge 
of sexual assault on our military are matters that rightfully demand 
significant and thoughtful time on the Senate floor. While I think 
Senator Wyden and I would agree that this week's debate on the National 
Defense Authorization Act is not the right time for a full, 
comprehensive debate on surveillance reform, I do believe it is the 
right time to begin that conversation.
  Senator Wyden has introduced a smart pro-transparency, pro-
accountability amendment, and that amendment is the right place to 
start. His amendment is based on the work we have been doing for a 
number of years now. That is why I am a proud cosponsor and a strong 
supporter.
  This amendment would increase the transparency of domestic 
surveillance programs, and I think it should--and I

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know it will--have broad support in this body. I am going to let 
Senator Wyden speak more extensively about our amendment, which, by the 
way, we have also introduced with the chair of the Appropriations 
Committee Senator Mikulski.
  Again, this is the perfect way to begin and frame what will be a more 
fulsome debate over the next few months. We are going to demand this 
debate because Coloradans, Oregonians, and Americans across our country 
demand that we have this debate.
  With that, I turn to my friend and colleague Senator Wyden for his 
thoughts.
  Mr. WYDEN. I thank Senator Udall for his exceptional leadership in 
our effort to put together a comprehensive bipartisan reform bill. I 
also thank the Presiding Officer from Connecticut because, as we all 
know, he has really been the ringleader in the effort to ensure that 
when there are major constitutional arguments put in front of the FISA 
Court, there is somebody there to make the case for the other side. So 
I am very pleased that, for purposes of this colloquy, when we discuss 
the transparency amendment we have filed today with Senator Mikulski, 
we have Senator Blumenthal in the Chair because he has been an integral 
part of the reform effort.
  I also appreciate what the distinguished Senator from Colorado said 
about Chairman Leahy. We have had a real partnership with him in 
working on these issues for a long time. We were thrilled that Chairman 
Leahy went on our bill and we went on his bill because it illustrates 
the need to try to make common cause around these issues. And as the 
Senator from Colorado said, we are talking about bipartisan approaches 
that help promote reform agenda.
  As the Senator from Colorado noted, it would be pretty hard to have a 
full debate on this legislation about surveillance reform. Suffice it 
to say that there are differing views here in the Senate with respect 
to surveillance. The Senator from Colorado and I support comprehensive 
overhaul, particularly as it relates to the collection of millions of 
phone records of law-abiding Americans, which has come to be known as 
metadata. So we have supported restrictions on that in order to protect 
law-abiding Americans who have had their privacy intruded upon.
  But having sat right next to the distinguished chair of the 
Appropriations Committee for many years--on the Intelligence Committee, 
and I think my friend from Colorado sits on the other side--we have 
heard Senator Mikulski speak eloquently about the need for transparency 
and accountability. My view is that this is something that can bring 
together all Senators around what really is a jump-start to the later 
debates about intelligence reform.
  Senator Udall and I, with the support of the chair of the 
Appropriations Committee Senator Mikulski have put together an 
amendment and filed it today on this legislation which takes important 
steps forward with respect to transparency. The amendment we have 
offered would require the executive branch to answer some of the major 
unanswered questions about domestic surveillance authorities and would 
require that future court opinions which find that domestic 
surveillance activities have violated the law or the Constitution ought 
to be made public. They ought to be made public to the American people, 
and if there is some aspect that should be held back--what is called 
redaction--so be it. Under our proposal, the executive branch would 
have the authority again to make sure that no details about secret 
intelligence methods or operations were in any way divulged as part of 
this transparency effort.
  While we feel strongly about protecting secret operations, we do not 
believe in secret law. The American people ought to always be able to 
find out what the government and government officials think the law 
actually means. To use a basketball analogy--and folks at home know I 
am always fond of those--parts of the playbook for combating terrorism 
will often need to be secret, but the rule book our government follows 
should always be public. So this amendment presents a chance for 
Senators who may have differing views about surveillance policy to 
rally together behind the cause of greater transparency.
  I would note at this time that Senator Mikulski has filed an 
additional amendment that the Senator from Colorado and I have 
cosponsored. It would make the Director of the NSA a Senate-confirmed 
position. This is a reform Senator Mikulski has been advocating for 
years. I think this too allows us to have a more vigorous and more open 
debate about these issues.
  The reality is that the thousands of Americans who work in the 
intelligence field honor our Nation day in and day out with their 
dedication and their commitment to the security of our country. But, as 
the Senator from Colorado has noted, too often in the past the 
leadership of the intelligence community has said one thing in private 
and another in public. If our amendment which we have put together with 
Senator Mikulski passes, there would be a new focus on transparency, 
and I think that would create some very serious obstacles to those who 
might want to engage in the kinds of deceptions that the Senator from 
Colorado noted and that we have seen in our hearings.
  I yield back. And we will wrap up our colloquy shortly.
  Mr. UDALL of Colorado. I thank Senator Wyden for his leadership and 
for taking the time to join me on the floor. As the Senator pointed 
out, we have a broad coalition across both parties and across the 
political spectrum.
  We also acknowledge that passing the Defense Authorization Act is 
crucial. We have to keep our military strong in the face of limited 
resources and a security environment that is rapidly changing. That is 
why we are not offering a comprehensive bill today. But we will be 
back. We want to have a fulsome debate. This is a matter my 
constituents have demanded that we address, and we are going to work to 
make this happen.
  I ask my colleague for any further thoughts he might have on this 
very important matter because the Bill of Rights is our biggest, 
baddest weapon. When we stand with the Bill of Rights, we can't go 
wrong.
  Mr. WYDEN. I thank my colleague. First, let me just mention in 
closing that this bill is directly relevant to work done at the 
Department of Defense, as the NSA is an integral part of the Department 
of Defense. In fact, this bill already contains half a dozen provisions 
that affect the NSA in one way or another, so it has been our view that 
this amendment is clearly germane to the bill.
  It also directs the Comptroller General to conduct an assessment of 
the economic impact of recently disclosed surveillance programs. The 
fact is that surveillance policy does not just affect foreign 
relations--although clearly it does affect our foreign relations. We 
see practically every day accounts of how our allies are concerned 
about their relations with us because of questions with respect to 
whether the privacy of their citizens are affected.
  When we are talking about allies, we are talking about partnerships 
we need to protect America in a dangerous world. Of course, at the same 
time we are talking about how in a fragile economy, some of America's 
leading companies, those on the cutting edge of our future--for 
example, with cloud technology that the distinguished Presiding Officer 
and I have talked about. This is an area where Americans have a big 
lead. We do not want to fritter it away, as we also suffer in terms of 
our national security, in terms of our relationships with allies. There 
are high stakes here. I am very hopeful we will have a chance to get a 
vote on this legislation.
  As I say, with Senator Mikulski particularly, the role that she has 
played as chair of the Appropriations Committee, I think we have a 
chance to jump-start the broader debate about intelligence. We have a 
chance to set the record straight about some of the comments that the 
intelligence leadership has made in the past that are either wrong, 
misleading or kind of shrouded in intelligence-speak. This is almost 
incomprehensible lingo that we try to sort through in terms of what 
they have to say.
  I am very hopeful the Senate will want to join Senator Udall, Senator 
Mikulski, myself--I know Senator Blumenthal and others are interested 
in it--in taking the next logical, commonsense approach in terms of 
intelligence reform; that is, to come out

[[Page S8348]]

foursquare for this approach, which I would like to state does not ban 
any collection tool at all that is now used by the government, but it 
does require that there be basic transparency and accountability in how 
they are used.
  (Mr. HEINRICH assumed the Chair.)
  That is long overdue. Let me have my friend and colleague from 
Colorado wrap up and express to him how much I appreciate it.
  I note somehow the Presidency of the Senate seems to be passed from 
one supporter of intelligence reform to another, since the 
distinguished Senator from Connecticut was just there. We have just 
been joined by Senator Heinrich, who has been a very valuable partner 
in these efforts as well.
  I thank him and allow the last word to be offered by the Senator from 
Colorado.
  Mr. UDALL of Colorado. Again, you cannot go wrong with transparency. 
Transparency is a central tenet of America. In that spirit, I wish to 
recognize the Senator from Connecticut, Mr. Blumenthal.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. BLUMENTHAL. Mr. President, I thank my colleagues who led this 
effort. Well before I became involved, Senator Udall and Senator Wyden 
have helped to lead this effort before there was any real disclosure 
about some of the excesses that have been so dramatically revealed over 
the recent past. As a colleague in this effort, I thank them for their 
relentless courage in blowing the whistle, quite bluntly, telling 
America there was something wrong, even when they could not reveal 
exactly what was wrong, saying the American people would be outraged if 
they knew, if only they could be told. That kind of bravery and 
strength has given energy and momentum to this debate.
  I am chagrined that we will not be debating and acting on it in 
connection with the National Defense Authorization Act if the present 
circumstances prevail and amendments are limited. I do believe it is 
past time to be talking about and acting on those issues, to move for 
greater accountability and transparency.
  One of the amendments I have sponsored would call for a more 
adversarial process, to expose more of the truth before the judges who 
make these decisions through the appointment of a constitutional 
advocate.
  The hour is late today. I hope at another time to talk about these 
issues in greater detail. But the time now is more urgent than ever to 
confront and address these shortcomings in the present system. I think 
the intelligence community itself will help us greatly and it has 
recognized this and all of America will benefit greatly, including 
their work.
  I salute the talented and dedicated members of that intelligence 
community who have done their work literally in secret for so long, 
helping to save Americans around the globe from terrorism and other 
threats. I think we need to change the system in ways that are worthy 
of the challenges they confront everyday, while at the same time making 
sure we have trust and confidence in America, trust and confidence in 
the system, trust and confidence in both the need for and the tools and 
weapons we use to further American intelligence in the combat against 
terrorism.
  I again thank my two colleagues who are on the floor and tell them I 
look forward to working with them in the next few days. If it is 
possible to achieve these reforms, so be it; if not, we will continue 
to work.
  Mr. UDALL of Colorado. I thank the Senator from Connecticut and 
Senator from Oregon, the Presiding Officer who has been engaged in this 
and I know the Senator from Arizona who is here is interested in these 
discussions as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.

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