[Congressional Record Volume 161, Number 80 (Friday, May 22, 2015)]
[Senate]
[Pages S3302-S3303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            USA PATRIOT ACT

  Mr. GRASSLEY. Mr. President, I wish to explain why I support a short-
term reauthorization of the national security authorities that expire 
on June 1, and why I will not vote for cloture on the latest version of 
the USA FREEDOM Act at this time. These authorities need to be 
reauthorized and reformed in a way that appropriately balances national 
security with the privacy and civil liberties of all Americans. I am 
hopeful that during the next few weeks we can do a better job of doing 
just that.
  I start with the premise that these are important national security 
tools that shouldn't be permitted to expire. If that were to happen, 
there is little doubt that the country would be placed at greater risk 
of terrorist attack, at a time when we can least afford it. This isn't 
exaggeration or hyperbole.
  We have recently witnessed the emergence of ISIS, a terrorist 
organization that controls large swaths of Iraq and Syria, including, 
as of just days ago, the capital of the largest province in Iraq. ISIS 
is beheading Americans and burning its captives alive for propaganda 
value. And fueled in part by black market oil sales, ISIS reportedly 
has at least $2 billion.
  The organization isn't just sitting on that money. Members of ISIS 
and related groups are actively recruiting would-be terrorists from 
around the world to come to Syria. They are inspiring attacks, often 
using social media, in the West, from Paris, to Sydney, to Ottawa, and 
even here in the United States, in places like New York City, Ohio, and 
Garland, TX. Director Comey has reported that the FBI has 
investigations of perhaps thousands of people in various stages of 
radicalization in all 50 States.
  So this isn't the time to let these various authorities expire. This 
isn't the time to terminate the government's ability to conduct 
electronic surveillance of so-called ``lone wolf' terrorists--people 
who are inspired by groups like ISIS but don't have direct contact with 
them. And this isn't the time to end the government's ability to seek 
roving wiretaps against terrorists. After all, this is a tool that 
prosecutors have used in criminal investigations since the mid-1980s.
  Most of all, this isn't the time to sunset the government's ability 
to acquire records from businesses like hotels, car rental agencies, 
and supply

[[Page S3303]]

companies, under section 215, in a targeted fashion. These kinds of 
records are routinely obtained by prosecutors in criminal 
investigations, though the use of grand jury subpoenas. It makes no 
sense for the government to be able to collect these records to 
investigate bank fraud, insider trading and public corruption, but not 
to help keep the country safe from terrorists.
  While we must reauthorize these authorities, however, it is equally 
important that we reform them. But we don't yet have a reform bill that 
I am satisfied with.
  The American people have made clear that they want the government to 
stop indiscriminately collecting their telephone metadata in bulk under 
section 215. They also want more transparency from the government and 
from the private sector about how section 215 and other national 
security authorities are being used. They want real reform.
  I want to be clear that I emphatically agree with these goals. They 
can be achieved responsibly, and doing so will restore an important 
measure of trust in our intelligence community.
  I agree with these reforms because the civil liberties implications 
of the collection of this type of bulk telephone metadata are 
concerning. This is especially so, given the scope and nature of the 
metadata collected through this program.
  Now, there haven't been any cases of this metadata being 
intentionally abused for political or other ends. That is good. I 
recognize that the overwhelming majority of those who work in the 
intelligence community are law-abiding American heroes to whom we owe a 
great debt for helping to keep us safe.
  But other national security authorities have been abused. 
Unfortunately, to paraphrase James Madison, all men aren't angels. I've 
been critical, for example, of the Department of Justice's handling of 
the so-called LOVEINT cases uncovered by the NSA's Inspector General.
  Given human nature, then, the mere potential for abuse makes the 
status quo concerning the bulk collection of telephone metadata under 
section 215 unsustainable, especially when measured against the real 
yet modest intelligence value the program has provided.
  The USA FREEDOM Act would in some ways reauthorize and reform section 
215 along these lines. It would end the bulk collection of telephone 
metadata in 6 months, and transition the program to a system where the 
phone companies hold the data for targeted searching by the government.
  But the bill's serious flaws cause me to believe that we can do 
better. Let me discuss just a few.
  First, while the system to which the bill would transition the 
program sounds promising, it does not exist at present, and may well 
not exist in 6 months. Intelligence community leaders don't know for 
sure how long it will take to build. They don't know for sure how fast 
it will be able to return search results to the government. They don't 
know for sure whether the phone companies will voluntarily keep the 
metadata for later searching by the government.
  On this score, then, this bill feels like a leap into the dark when 
we can least afford it. While we need certainty that the bulk 
collection of telephone metadata under section 215 will end, we also 
need more certainty that the new system proposed will work and be 
effective.
  Second, the bill contains reforms to the FISA Court that are unneeded 
and risky. I am strongly in favor of reforming the court to make clear 
that it can appoint a traditional amicus, or a friend of the court, to 
help it get the law right. This is a well understood legal concept.
  But this bill goes further--potentially dangerously so. Under certain 
circumstances, the bill directs the FISA Court to name a panel of 
outside experts who would, in the words of the New York Times, 
``challenge the government's pleadings'' before the court.
  Especially when the bill already ends the kind of dragnet 
intelligence collection under section 215 that affects so many innocent 
Americans, this is wholly unnecessary. And for this reason, the 
Administrative Office of the U.S. Courts sent a letter alerting 
Congress to its concerns that this outside advocate could ``impede the 
court's work'' by delaying the process and chilling the government's 
candor.
  In addition, this proposed advocate is contrary to our legal 
traditions, in which judges routinely make similar decisions on an ex 
parte basis, hearing only from the government. Mobsters don't get a 
public defender when the government seeks to wiretap their phones. 
Crooked bankers don't get a public defender when the government seeks a 
search warrant for their offices. There is no need to give ISIS a 
public defender when the government seeks to spy on its terrorists to 
keep the country safe.
  Third, the bill also contains language that amends the federal 
criminal code to implement a series of important and widely-supported 
treaties aimed at preventing nuclear terrorism and proliferation. 
However, the bill doesn't authorize the death penalty for nuclear 
terrorists. Nor does it permit the government to request authorization 
from a judge to wiretap the telephones of these terrorists or allow 
those who provide them material support to be prosecuted. These common-
sense provisions were requested by both the Bush and Obama 
Administrations, but for unknown reasons they were omitted from the 
bill.
  In fact, Senator Whitehouse and I have introduced separate 
legislation, the Nuclear Terrorism Conventions Implementation and 
Safety of Maritime Navigation Act of 2015, which would implement these 
treaties with these provisions included.
  Recently, I have been heartened that there is a bipartisan group of 
members of the Judiciary and Intelligence Committees who share these 
and other concerns. We have been discussing an alternative reform bill 
that would also end the bulk collection of telephone metadata under 
section 215. But it would also do a better job of ensuring that our 
national security is still protected.
  So I support a short, temporary reauthorization with the hope that an 
alternative reform bill can be crafted that addresses the core reform 
goals of the American people and that appropriately balances national 
security with the privacy and civil liberties of all Americans. There 
is work ahead, but it is important that we get this reform right.

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