[Congressional Record Volume 161, Number 71 (Monday, May 11, 2015)]
[Senate]
[Pages S2751-S2753]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            USA FREEDOM ACT

  Mr. LEAHY. Mr. President, section 215 of the USA PATRIOT Act expires 
in a matter of weeks. Senator Lee and I have a bipartisan bill, the USA 
FREEDOM Act, that would end the use of section 215 to authorize the 
bulk collection of Americans' phone records and replace it with a more 
targeted program. It also would enact other important reforms to bring 
more accountability and transparency to government surveillance. The 
Speaker of the House of Representatives is bringing that same bill for 
a vote in the House on Wednesday.
  Last week, some opponents came to the floor to voice their 
opposition. They claimed that ending this bulk collection program would 
somehow put our national security at risk and that a bulk collection 
program like this could somehow have prevented the September 11 
attacks. But the facts are not on their side. According to the headline 
of a recent National Journal story, these opponents of reform have made 
``dubious claims in defense of NSA surveillance.''
  I agree these claims are dubious, and I want to set the record 
straight. I ask unanimous consent that the National Journal story dated 
May 8, 2015, and an analysis by the Center for Democracy and Technology 
of similar claims be printed in the Record.
  One Senator stated on the Senate floor last week, ``If this program 
had existed before 9/11, it is quite possible we would have known that 
9/11 hijacker Khalid Al Mihdhar was living in San Diego and was making 
phone calls to an Al Qaeda safe house in Yemen.''
  Another seemed to suggest that the bulk collection program would 
``have prevented 9/11.''
  When I was chairman in the last Congress, the Senate Judiciary 
Committee held six hearings to examine revelations about government 
surveillance activities. At one of those hearings, I asked former 
counterterrorism official Richard Clarke, who was working in the Bush 
administration on September 11, whether the NSA bulk collection program 
would have prevented those attacks. He testified that the government 
had the information it needed to prevent the attacks but failed to 
properly share that information among Federal agencies.
  Senator Bob Graham, who investigated the September 11th attacks as 
head of the Senate Intelligence Committee, likewise has said that 
``there were plenty of opportunities without having to rely on this 
metadata system for the FBI and intelligence agencies to have located 
Mihdhar.''
  The other claim that has been made repeatedly over the past few days 
is that, as one Senator put it, the bulk collection of Americans' phone 
records is ``very effective at keeping America safe.'' Another stated 
that the USA FREEDOM Act would ``eliminate the essential intelligence 
this program collects.''
  But numerous national security experts also have concluded that the 
NSA's bulk collection program is not essential to national security. 
The President's Review Group on Intelligence and Communications 
Technology, which included two former national security officials, 
stated:

       The information contributed to terrorist investigations by 
     the use of section 215 telephony metadata was not essential 
     to preventing attacks and could readily have been obtained in 
     a timely manner using conventional section 215 orders.

  Former Acting CIA Director Michael Morell testified to the Senate 
Judiciary Committee that the review group's recommendation to end the 
government's collection of that data and instead allow the government 
to search phone records held by the telecommunications providers would 
not add a substantial burden to the government. That is precisely the 
approach of our bipartisan USA FREEDOM Act.
  Last year, the Director of National Intelligence and the Attorney 
General supported a prior version of the USA FREEDOM Act, which also 
ended bulk collection under section 215 and replaced it with a more 
targeted phone records program. The Attorney General and the Director 
of National Intelligence said that our bill ``preserve[d] essential 
Intelligence Community capabilities.''
  These individuals are not newcomers to the issue of national 
security. They understand the threats to our Nation. They do not have a 
political motive. They have the best interests of our Nation and its 
values in mind when they tell us that we can end the dragnet collection 
of innocent Americans' phone records and keep our country safe.
  The USA FREEDOM Act does not just end NSA's bulk collection program 
under section 215. It also fills other gaps in our intelligence 
capabilities. It ensures that the government can quickly obtain 
business records--including phone records--in emergency situations. It 
ensures that if a foreign terrorist who poses a serious threat comes 
into the United States, the government does not have to stop its 
surveillance while it seeks emergency wiretap authorization from the 
Attorney General. It ensures that the government need not terminate 
FISA surveillance on a foreigner who temporarily travels outside the 
United States. And it ensures that the FBI has the tools it needs to 
investigate individuals who are facilitating the international 
proliferation of weapons of mass destruction on behalf of a foreign 
government or terrorist organization. These provisions were requested 
by the FBI and by the House Permanent Select Committee on Intelligence. 
They were not part of the bill that was filibustered in the Senate in 
November.
  As a final matter, it is notable that there has been not a single 
Senate committee hearing on surveillance reform or the expiring 
provisions in the 5 months of this new Congress under Republican 
leadership. There has been zero committee consideration on the bill 
that Senator McConnell has now brought directly to the Senate calendar 
that would simply extend these

[[Page S2752]]

expiring provisions. I recall the promises that under new leadership 
the committees would work through regular order, but that has not 
occurred even though it was apparent to all last year that we would 
need to grapple with long-overdue reforms. This lack of leadership or 
any committee process is also despite the fact that the leader and 
chairmen of the relevant committees would not even let us debate the 
USA FREEDOM Act last year, in part because it had not gone through 
committee. As the process moves forward this year, we should not be 
hearing complaints about lack of process from those who did not provide 
it.
  There is no question that the USA FREEDOM Act contains far-reaching 
surveillance reforms. But the most high-ranking intelligence officials 
in the country have endorsed its approach because it is a responsible 
bill. It protects Americans' privacy and keeps them safe. The Senate 
should take up the bill once the House passes it this week.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From National Journal, May 8, 2015]

     Republicans Make Dubious Claims in Defense of NSA Surveillance


   Mitch McConnell and his cohort of security hawks are stopping at 
nothing to renew the spy agency's phone dragnet. But how fair is their 
                                defense?

                            (By Dustin Volz)

       One by one, several powerful Republican senators took to 
     the floor Thursday morning to offer one of the most full-
     throated defenses of the National Security Agency's bulk 
     collection of billions of U.S. phone records since Edward 
     Snowden exposed the program nearly two years ago.
       The crux of their argument is unmistakable: The NSA's 
     expansive surveillance powers need to remain intact and 
     unchanged to keep Americans safe from potential terrorist 
     threats--and if these powers existed before Sept. 11, 2001, 
     they may have assisted in preventing the attacks on the World 
     Trade Center and the Pentagon.
       But some of the talking points used by Senate Majority 
     Leader Mitch McConnell and his allies appear to rely heavily 
     on assertions that are either dubious in their veracity or 
     elide important contextual details.
       Here is a review of some of their declarations:
       Claim: ``Not only have these tools kept us safe, there has 
     not been a single incident, not one, of intentional abuse of 
     them.''--McConnell
       McConnell may have been referring specifically to the phone 
     records program here, but the NSA does not, as he implies, 
     have a spotless record.
       According to a 2013 inspector general report, NSA analysts 
     intentionally misused foreign surveillance authorities at 
     least a dozen times in the past decade, sometimes for the 
     purpose of spying on their romantic interests. So-called 
     ``loveint''--short for ``love intelligence''--was revealed by 
     the inspector general in response to a letter sent from 
     Republican Sen. Chuck Grassley, who this year renewed a call 
     for the Justice Department to provide an update on how it was 
     handling its investigation into the alleged willful abuses 
     and to ``appropriate accountability for those few who violate 
     the trust placed in them.''
       Additionally, a 2012 internal audit obtained by The 
     Washington Post found that the NSA has violated privacy 
     restrictions set in place for its surveillance programs 
     thousands of times each year since 2008. The audit found that 
     most--though not all--infractions were unintended.
       Claim: ``The compromise legislation rolls us back to the 
     same thing we were doing pre-9/11.''--Senate Intelligence 
     Chairman Richard Burr
       The USA Freedom Act referenced by Burr would reauthorize 
     three key surveillance provisions under the post-9/11 Patriot 
     Act. It would usher in several reforms related to 
     transparency and oversight, but it would keep those 
     authorities intact. Section 215 of the law would no longer 
     allow for the bulk collection of U.S. phone metadata by the 
     NSA, but the authority--created after 9/11--would still 
     exist.
       Claim: ``The alternatives to the current program would not 
     come close to offering the capabilities that now enable us to 
     protect Americans.''--Sen. Tom Cotton
       Cotton's claim does not align with the stance of Director 
     of National Intelligence James Clapper and then-Attorney 
     General Eric Holder, who sent a letter to lawmakers last year 
     expressing their support for an earlier iteration of the 
     Freedom Act. ``The intelligence community believes that your 
     bill preserves essential intelligence-community capabilities; 
     and the Department of Justice and the Office of the Director 
     of National Intelligence support your bill and believe that 
     it is a reasonable compromise that enhances privacy and civil 
     liberties and increases transparency,'' the letter read. That 
     version of the Freedom Act is widely considered more limiting 
     of surveillance powers than the one being debated in Congress 
     this year.
       Claim: ``One alternative offered by opponents of this 
     program is to have phone companies retain control of all call 
     data and provide the NSA only the data responsive to searches 
     phone companies would run on the NSA's behalf. This is not 
     technologically feasible.''--Cotton
       The reliance on phone companies to retain call data already 
     occurs, as they are the ones who turn the records over to the 
     government in bulk. Cotton, who voted for a pared down 
     iteration of the Freedom Act last year when he served in the 
     House, cites an 85-page study from the National Research 
     Council to support this assertion. But the Arkansas freshman 
     appears to be conflating its findings, which dealt with 
     whether software could fully replace bulk collection, with 
     what backers of the Freedom Act are attempting to do. 
     ``Although no software can fully replace bulk with targeted 
     information collection, software can be developed to more 
     effectively target collection and to control the usage of 
     collected data,'' the report concluded. Cotton's 
     reservations--that the new system may take longer than the 
     old--have more to do with process than technological 
     capabilities.
       Claim: ``Here's the truth. If this program had existed 
     before 9/11, it is quite possible that we would have known 
     that the 9/11 hijacker Khalid al-Mihdhar was living in San 
     Diego and making phone calls to an al-Qaida safehouse in 
     Yemen. There's no guarantee we would have known. Theres no 
     way we can go back in time and prove it, but there is a 
     probability that we would have known and there's a 
     probability that American lives could have been saved.''--
     Sen. Marco Rubio.
       Rubio hedges his language several times with this claim, 
     but the statement still omits important context. As reported 
     by a 2013 ProPublica investigation, ``U.S. intelligence 
     agencies knew the identity of the hijacker in question, Saudi 
     national Khalid al-Mihdhar, long before 9/11 and had the 
     ability find him, but they failed to do so.'' Such missed 
     opportunities to disrupt Midhar's activities, which were 
     being monitored by at least as early as 1999, reflect a 
     failure of information sharing among intelligence agencies, 
     ProPublica notes, and are described in detail in the 9/11 
     Commission report.
                                  ____


        Senators' Questionable Claims About NSA Bulk Collection


                   Center for Democracy & Technology

       On May 7th, 2015, the Second Circuit issued a ruling that 
     declared the NSA's bulk collection of Americans' phone 
     records was clearly unlawful under the Section 215 of the 
     PATRIOT Act. The ruling provided another boost to supporters 
     of surveillance reform and the backers of the USA FREEDOM 
     Act. Hours after the ruling came down, several U.S. 
     Senators--Mitch McConnell, Richard Burr, Tom Cotton, Jeff 
     Sessions, and Marco Rubio--took to the Senate Floor to 
     forcefully defend the NSA's bulk collection program. The 
     Senators made some statements that merit a second look, and 
     serious skepticism.
       Claim 1: The NSA's bulk collection of Americans' phone 
     records is essential to national security. ``Under 
     consideration in the House and proposed in the Senate is the 
     socalled USA FREEDOM Act, which will eliminate the essential 
     intelligence this program collects.''--Senator Tom Cotton
       The weight of public evidence contradicts this claim, based 
     on statements from experts with access to classified 
     intelligence:
       The Attorney General and the Director of National 
     Intelligence stated that the USA FREEDOM Act of 2014--which 
     is in all ways identical to or less restrictive of 
     surveillance than the 2014 bill--``preserves essential 
     Intelligence Community capabilities'' though the bill ``bans 
     bulk collection under a variety of authorities.''
       The President's Review Group noted in 2014 that the bulk 
     collection program yielded information that was ``not 
     essential to preventing attacks and could readily have been 
     obtained in a timely manner using conventional section 215 
     orders.''
       The Privacy and Civil Liberties Oversight Board stated in 
     2014: ``Based on the information provided to the Board, 
     including classified briefings and documentation, we have not 
     identified a single instance involving a threat to the United 
     States in which the program made a concrete difference in the 
     outcome of a counterterrorism investigation. Moreover, we are 
     aware of no instance in which the program directly 
     contributed to the discovery of a previously unknown 
     terrorist plot or the disruption of a terrorist attack.''
       Senators Wyden, Heinrich, and Udall said in 2013 ``[We] 
     have reviewed this surveillance extensively and have seen no 
     evidence that the bulk collection of Americans' phone records 
     has provided any intelligence of value that could not have 
     been gathered through less intrusive means.''
       It's important not to conflate the value of Sec. 215 
     overall with the effectiveness of the use of Section 215 for 
     bulk collection. Sec. 215 can be used for targeted--not just 
     bulk--data collection. The USA FREEDOM Act ends nationwide 
     bulk collection under Sec. 215, but preserves the 
     government's ability to use Sec. 215 for more targeted 
     collection. What is at stake with USA FREEDOM is not Sec. 215 
     itself, but its continued use for bulk domestic surveillance.
       Claim 2: The bulk collection program could have stopped 9/
     11. ``Here is the truth. If this program had existed before 
     9/11, it is quite possible we would have known that 9/11 
     hijacker Khalid Al Mihdhar was living in San Diego and was 
     making phone calls to an Al

[[Page S2753]]

     Qaeda safe house in Yemen.''--Senator Marco Rubio
       A bulk collection program was not necessary to find Al 
     Mihdhar prior to 9/11. As the PCLOB report details, the NSA 
     had already begun intercepting calls to and from the safe 
     house in Yemen in the late 1990s. Since the government knew 
     the number of the safe house, and Al Mihdhar was calling that 
     number, it would only be necessary to collect the phone 
     records of the safe house to discover Al Mihdhar in San 
     Diego. This is, in fact, an example of how targeted 
     surveillance would have been more effective than bulk 
     collection. The 9/11 Commission Report and other sources note 
     that the CIA was aware of Mihdhar well before the attack and 
     missed multiple opportunities to deny him entry to the U.S. 
     or intensify their surveillance of him.
       Claim 3: Bulk collection of phone records is the same as a 
     subpoena. ``This is the way the system works and has worked 
     for the last 50 years--40 years at least. A crime occurs. A 
     prosecutor or the DEA agent investigates. They issue a 
     subpoena to the local phone company that has these telephone 
     toll records--the same thing you get in the mail--and they 
     send them in response to the subpoena.''--Senator Jeff 
     Sessions
       The Second Circuit opinion, which held that the bulk 
     collection program is unlawful, included a lengthy comparison 
     of subpoenas and the bulk collection program. The bulk 
     collection program encompasses a vastly larger quantity of 
     records than could be obtained with a subpoena. The Second 
     Circuit notes that subpoenas typically seek records of 
     particular individuals or entities during particular time 
     periods, but the government claims Sec. 215 provides 
     authority to collect records connected to everyone--on an 
     ``ongoing daily basis''--for an indefinite period extending 
     into the future.
       Claim 4: The government is only analyzing a few phone 
     records. ``The next time that any politician--Senator, 
     Congressman--talking head, whoever it may be, stands up and 
     says ``The U.S. Government is [. . .] going through your 
     phone records,'' they are lying. It is not true, except for 
     some very isolated instances--in the hundreds--of individuals 
     for whom there is reasonable suspicion that they could have 
     links to terrorism.''--Senator Marco Rubio
       The NSA's telephony bulk collection program collects the 
     phone records of millions of Americans with no connection to 
     a crime or terrorism. These records are stored with the NSA 
     and they are analyzed scores of times each year when the NSA 
     queries the numbers' connection to the phone numbers of 
     suspects. Moreover, until 2014, when the NSA suspected a 
     phone number was connected to terrorism, the NSA analyzed the 
     phone records ``three hops'' out--querying those who called 
     those who called those who called the original suspect 
     number. As a result, the PCLOB estimated, a single query 
     could subject the full calling records of over 420,000 phone 
     numbers to deeper scrutiny. In 2014, the President limited 
     the query to ``two hops''--though this can still encompass 
     the full call records of thousands of phone numbers. The USA 
     FREEDOM Act (Sec. 101) would authorize the government to 
     obtain ``two hops'' worth of call records from telecom 
     companies.
       Claim 5: The USA FREEDOM Act threatens privacy by leaving 
     phone records with telecom companies. ``[T]he opponents of 
     America's counterterror programs would rather trust 
     telecommunication companies to hold this data and search it 
     on behalf of our government. [. . .] In addition to making us 
     less safe, the USA FREEDOM Act would make our privacy less 
     secure.''--Senator Mitch McConnell
       The telecom companies already have the phone records since 
     the records are created in the normal course of their 
     business. The USA FREEDOM Act does not shift control of data 
     from NSA to telecoms; the bill limits the volume of what the 
     government can collect from companies with a single 215 
     order. Keeping the records with the phone companies, as the 
     USA FREEDOM Act would require, does not create a new privacy 
     intrusion, or, according to the public record, pose new 
     security risks. In contrast, it is highly intrusive for the 
     government to demand companies provide a copy of the 
     communication records of millions of Americans on a daily 
     basis to a secretive military intelligence agency for data 
     mining.
       One last important point: The discussion on the Senate 
     Floor centered exclusively on the bulk collection of phone 
     records. However, the debate and the legislation before 
     Congress are not just about one telephony metadata program. 
     The debate is over whether the government should have the 
     authority to collect a variety of records in bulk under the 
     PATRIOT Act. The government has claimed that its bulk 
     collection authority extends to any type of record that can 
     reveal hidden relationships among individuals--which could 
     include phone call, email, cell phone location, and financial 
     transaction records. Framing the issue in terms of phone 
     records makes the problem seem much smaller than it is, 
     especially as our society moves into a technology-enabled 
     future where each individual will create much more metadata 
     and digital records than the present. The stakes are high.

                          ____________________