[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3324-S3331]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA FREEDOM ACT OF 2015--MOTION TO PROCEED
The PRESIDENT pro tempore. Under the previous order, the Senate will
resume consideration of the motion to proceed to H.R. 2048, which the
clerk will report.
The senior assistant legislative clerk read as follows:
Motion to proceed to Calendar No. 87, H.R. 2048, a bill to
reform the authorities of the Federal Government to require
the production of certain business records, conduct
electronic surveillance, use pen registers and trap and trace
devices, and use other forms of information gathering for
foreign intelligence, counterterrorism, and criminal
purposes, and for other purposes.
The PRESIDENT pro tempore. The minority leader.
Mr. LEAHY. I ask, through the Chair, if the Democratic leader will
yield to me for a comment.
Mr. REID. Mr. President, I am happy to yield to the Senator for a
comment.
Mr. LEAHY. Mr. President, I was struck by what the Democratic leader
said. He laid out the history of this. We are here in a manufactured,
unnecessary crisis. It is a manufactured, unnecessary crisis
Last year, by an overwhelming majority, the Senate voted to make
improvements to the PATRIOT Act. The legislation made reforms to the
provisions that have now been declared illegal. We did that but could
not get past a filibuster. We had 58 votes. Normally, you think of 51
votes being enough to pass a bill. The Democratic leader will recall
how hard he worked to try to get that bill through. The Republican
leader said: No, we will wait until next year. Well, next year came. We
have wasted so much time. There has not been a single public hearing.
There has not been any action on an alternative to the USA FREEDOM Act.
But, I say to my friend from Nevada, he is absolutely right when he
says the House passed the USA FREEDOM Act by a 4 to 1 margin. It was an
overwhelming vote, Republicans and Democrats together, to get rid of
the illegal parts of the PATRIOT Act, to pass an improvement. We ought
to just take up the USA FREEDOM Act and pass it.
If we were allowed to have a straight up-or-down vote in this body, I
guarantee you, a majority of Senators--both parties--would vote for it.
So I just wanted to say that while the leader was on the floor.
I now ask for recognition in my own right.
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The PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Mr. President, before I begin my comments on the USA
FREEDOM Act, I am going to speak for a moment on a personal matter.
Remembering Beau Biden
Mr. President, Marcelle and I have known Beau Biden since he was a
child. I am the longest serving Member of this Senate. When I came
here, there was one Senator who was one term senior to me; that was Joe
Biden. I knew of the tragedy his family had gone through, and I
cherished the times, with his office right near mine, when his sons
Beau and Hunter would be there with him. I watched them grow up. I saw
Beau Biden become the epitome of what a State's attorney general should
be. That is a model all attorneys general throughout the country could
have followed. Progressive, worried about improving the law, improving
peoples' lives--he did that.
I know how much we appreciated it when we would see him and Hallie at
an event, when Marcelle and I would get a chance to talk with them. It
was like picking up a conversation that had ended just a few minutes
before.
I remember one thing especially about Beau. I was in Iraq during the
war. It was a day when it was well over 100 degrees outside. I was
being brought to a place where there was going to be a briefing, being
zipped into this building. There were a number of soldiers wearing T-
shirts, shorts, and sidearms playing ball outside in this 110-, 120-
degree heat. As I went to the door, one of them turned around and gave
me a big wave with his arm blocking his face. I was not sure who it
was. I kind of waved back. Pretty soon, he came to the door. It was
Beau Biden. I remember we gave each other a big hug. He was there as a
captain in the Delaware Reserves. He was decorated for his service. We
talked about what he was doing. He was praising the men and women who
worked there. Nothing about anything he might be doing; he was praising
everybody else. It was such a refreshing moment being with him, and it
was so typical of who he was as a person.
I told him that I have a procedure that if I am in another country
and I am with our military, that if there are Vermonters there, I
always take their names and I ask them if they have family back home in
Vermont. Most of them do. I get their phone number, and as soon as I
get back, I call their mother or their father, their husband or their
wife, brother or sister, whoever it might be, and say: I saw a member
of your family; here is what they are doing; they look well, and all
that.
So I told Beau, I said: Look, I have known you since you were a
youngster. I will call your father as soon as I can and tell him you
are behaving yourself, and you are doing a good job. We laughed at
that.
Shortly thereafter, I got on the phone we had available to us to go
through the Whitehouse switchboard to reach the Vice President. Then I
started to talk about the procedure I have, and Joe Biden started to
laugh. He said: I just got an email from Beau that he had seen you
there and that I should be expecting a call from you. We talked about
what a great job Beau was doing. You could hear the pride in his
father's voice. You could hear his pride. It was a pride that was
deserved.
I remember Joe saying, when we were first here in the Senate--the two
of us--he would be going home every night on the train. Why? Not as
much even that the kids needed him, but he needed them.
Finally, when he met Jill, the boys were telling him: You should
marry her.
So I grieve for them. Marcelle and I sat there and cried last night
when we heard the news. I think, what a wonderful family. I think about
a life cut too short--far too short.
Mr. President, I can and will say more later.
Mr. President, on the matter the distinguished Democratic leader was
talking about, the USA FREEDOM Act, let's just take it up and pass it.
Opponents of this bipartisan, commonsense legislation have run out of
excuses. I see this as a manufactured crisis, and it is. This matter
should have been taken up and voted on up or down a month ago. There is
only one viable and responsible path remaining: Pass the USA FREEDOM
Act that passed overwhelmingly in the House of Representatives. Pass it
and send it to the President's desk and he will sign it. If we do not
pass it, then those parts of the PATRIOT Act that most of us agree on
are going to expire at midnight.
The irony of it is that the USA FREEDOM Act of 2015 is a carefully
crafted, bipartisan compromise that both protects Americans' privacy
and keeps this country safe. Before they were talking about, we are
going to keep the country safe but Americans' privacy--not so much.
This is a bill that does both.
The legislation would end the NSA's bulk collection of Americans'
phone records. It adds significant new reforms to limit government
surveillance. It increases transparency and also promotes greater
accountability and oversight--something the original PATRIOT Act did
not have.
The bill is the product of countless hours of painstaking
negotiations with key Members--both Republicans and Democrats--in the
House and the Senate, men and women I respect so much because they want
to do what is best for the country. We have negotiated with the NSA,
the FBI, the Justice Department, privacy and civil liberties groups,
the technology industry, and other key stakeholders. We brought
everybody together. When we began, we wondered if that would be
possible. We did it. That is why the USA FREEDOM Act has such strong
support, including from groups as diverse as the National Rifle
Association and the Center for American Progress.
This broad consensus is what we saw by the overwhelming support it
received in the House. They passed the USA FREEDOM Act by a vote of 338
to 88. Some in this country say that no branch of government could have
a vote that strong to say the Sun rises in the east. Certainly there
has been no major piece of legislation in years where we have seen a
vote such as that--338 to 88.
But now a minority in the Senate has now twice blocked the USA
FREEDOM Act from even getting a debate on the Senate floor. We were
sent here not to vote maybe but to vote yes or no.
Last November, even though we had had all kinds of committee hearings
on this, we heard complaints that there had not been enough of a
committee process on the bill and that the Senate should wait to
address Section 215 under the new Republican leadership. So the
Republican leader led a successful filibuster against a bill which
still had a majority of Members in this body voting for it. But what
has happened in this Congress? Not a single public hearing on this
issue; no committee process. And then last weekend, the Senate was
blocked from even debating the House-passed bill and considering
amendments.
Opponents of reform have failed to introduce any legislative
alternative to the bipartisan USA FREEDOM Act, the bill which reforms
many problems of the PATRIOT Act. They have come up with no legislative
alternative other than a clean extension, which we know has no chance
of becoming law. Of course, it makes no difference because at midnight
it stops being the law.
The time for excuses and inaction has passed. The American people and
the intelligence community professionals who strive to protect them
deserve better.
We have a few hours remaining to work things out and pass the USA
FREEDOM Act, but there is no room for error. There is very little time.
Again, I said it is a manufactured crisis. The deadline to act is
midnight tonight. The House will not return to the Capitol until
tomorrow, after the deadline has passed. We could talk about passing a
100-year extension if we wanted; it makes no difference because the
time will have passed. So if the Senate does not pass the House-passed
USA FREEDOM Act or if we amend it in any way, the authorities are going
to expire.
I have said repeatedly--and my cosponsor of the USA FREEDOM Act,
Senator Lee, agrees with me--that we would like to have a debate on our
bill and consider amendments. Because opponents of reform have run out
the clock and jammed the Senate, we are not left with very much time.
Let's get this done today. If we pass the USA FREEDOM Act, the
President could sign it tonight and the intelligence community could
move forward
[[Page S3326]]
with the certainty it needs to protect the American people.
Some may argue that if you had a short-term extension--which, of
course, we do not have--they have said: Well, maybe we could work out
some kind of a compromise bill. But let there be no misunderstanding:
The USA FREEDOM Act is a solid, carefully negotiated compromise. For
all those Senators on either side of the aisle who have not spent the
hours and hours and hours, as Senator Lee and I and our staffs have
spent, maybe they do not know the work that went into this--again, how
you get groups from the left to the right supporting it.
It would be irresponsible to kick the can down the road once again,
relying on the false hope that the House will agree to pass a short-
term extension--something they said they will not do--and that we will
somehow be able to agree on a half-baked alternative that has yet to be
introduced in either body and most assuredly would not pass the House.
So do not be fooled or tempted by the promise of a short-term
extension. That would guarantee nothing. Well, wait a minute. I take
that back. Passing a short-term extension does guarantee something: It
guarantees the expiration of these authorities at midnight tonight. It
guarantees more uncertainty, more litigation, more risk for the
intelligence community, and a repeat of the chaotic brinksmanship later
on down the road with another manufactured crisis.
I know there are some who worry that the bill does not go far enough
when it comes to reform. Well, then where were they in coming up with a
better idea? If this passes, the USA FREEDOM Act would be the most
significant set of reforms to government surveillance since the PATRIOT
Act was enacted. The reason we are here to even debate it is that then-
majority leader Dick Armey in the House and I put in sunset provisions.
So we will have to show responsibility and vote, as the House did by a
4-to-1 margin.
Our bill--Senator Lee's and my bill--would not just end the NSA's
bulk collection under Section 215, it would add new transparency and
oversight reforms to other surveillance authorities, and it would be a
solid foundation upon which we could build our future reform efforts.
I have been in the Senate for more than 40 years. I have learned that
when there is a chance to make real progress, we ought to seize it. But
I also know we cannot let this be the end of our fight for greater
privacy protections, transparency, and accountability. I remain
committed to fighting that fight on behalf of Vermonters and all
Americans.
So the choices before us this evening are clear: Either let these
authorities expire completely or pass the USA FREEDOM Act. There is no
more time for political maneuvering or fearmongering or scare tactics.
It is time for us to do our jobs--to debate and then to vote. Don't
duck the vote. Vote up or down on the bill the House gave us. Stand up
and be counted either for or against it. As Senators, let's have the
courage to do that.
The USA FREEDOM Act is a reasonable, responsible way forward, and we
should pass it tonight. But don't duck behind not doing anything and
pretend that is a solution. I don't think there is a single American,
Republican or Democrat, who would believe that was a responsible
solution.
Mr. President, I yield the floor.
Ms. MIKULSKI. Mr. President, I am back here during an unprecedented
Sunday session hoping we can avoid a totally unnecessary disaster
tonight; hoping we will do what is right for the country: Pass the USA
FREEDOM Act today. Right now.
I will let others speak to the merits of the USA FREEDOM Act. It is
our best opportunity to protect the Nation while balancing between
privacy and constitutional surveillance.
I do support reforming the Patriot Act, but I do not support
unilateral disarmament of our Nation's need to know what bad guys with
predatory intent are planning against the United States of America.
But my comments today are not about standing up for the USA FREEDOM
Act.
I am here to stand up for the men and women working for the NSA, FBI,
and other intelligence agencies essential to protecting our country
against terrorist attacks--whether it is a ``lone wolf'' or state
sponsored. These dedicated, patriotic intelligence professionals want
to operate under rule of law that is constitutional, legal, and
authorized.
They are ready to do their jobs, but Congress needs to do our job and
pass a bill that is constitutional, legal, and authorized.
Ever since Edward Snowden made his allegations, the men and women of
our intelligence agencies have been vilified as if they were the enemy.
They thought they were doing their jobs protecting us against the
enemy.
Let me tell you--the men and women of the NSA, FBI, and our other
intelligence agencies are patriots who have been wrongly vilified by
those who don't bother to inform themselves about our national security
structures and the vital functions they perform.
Now a special word about the NSA, which is headquartered in my home
State of Maryland. The 30,000 men and women in the NSA serve in
silence--without public accolades. They protect us from cyber attacks.
They protect us against terrorist attacks. They support our
warfighters. They are Ph.D.'s and scientists. They are linguists, cyber
geeks, and whiz kids--the treasured human capital of this Nation.
Remember that section 215 is such a small aspect of what the NSA,
FBI, and other intelligence agencies do as they stand sentry in cyber
space stopping attacks. People act like that is all NSA does. They
haven't even bothered to educate themselves as to legality and
constitutionality.
Congress passed the Patriot Act. President George W. Bush told us it
was constitutional. We need good intelligence. In a world of ISIL,
Nusra Front, and al Qaeda, the NSA is our front line of defense and the
people of NSA make up that front line.
There is no evidence of abuse by NSA employees. The men and women of
NSA have adhered to the law. They have submitted to oversight, audits,
checks and balances, and reviews from Congress and the courts.
The employees of NSA know that everything has to be constitutional,
legal, and authorized. They thought they were implementing the law, but
some in the media and even some in this body have made them feel like
they were wrongdoers. I find this infuriating and insulting. Morale has
been devastated at NSA. Families have been harassed for working at the
NSA and their kids are bullied at school.
They have also been devastated by actions of their own government.
First, by sequester--then, by the government shutdown. Now, by
Congress's failure to reform national security authorities that help
them keep our country safe.
It is wrong. I want people to remember that tonight as we discuss
important reforms. Let us not let them down, once again, with our own
failure to act.
Mrs. FEINSTEIN. Mr. President, it is greatly disappointing that the
Senate is in session today to reconsider a vote we took before the
Memorial Day recess to extend the three expiring provisions of the
Foreign Intelligence Surveillance Act.
Instead of passing the USA FREEDOM Act a week ago and sending it to
the President, we are now poised to take the measure up this coming
week, after the FISA authorities have expired. The result is that our
intelligence agencies will lose important tools to protect against
terrorist attacks. This is a self-inflicted harm, and one that was
totally unnecessary.
As I did a week ago, I will vote to invoke cloture on the motion to
proceed to the USA FREEDOM Act, and I intend to vote for the
legislation through the upcoming procedural votes. The bill is not
perfect, but it extends the business records, lone wolf, and roving
wiretap provisions and it institutes some important reforms to FISA.
Unfortunately, what we have on the floor of the Senate tonight is
political gamesmanship at its worst. We should have had this debate
weeks or months ago, not up against the deadline. Failing that, the
majority should not have defeated this motion last week when it is
prepared today to pass it.
We should skip the unnecessary delay of voting separately on the
motion to proceed, cloture on the bill, and on the bill itself. Clearly
there are 60 votes in
[[Page S3327]]
this chamber to pass the USA FREEDOM Act, whether we do it today or if
we do it next week.
So the question comes: why not pass this bill today, reform the
business records provision of FISA, and keep important intelligence
authorities in effect? Unfortunately, the answer is that one Senator is
holding this process hostage for his own political benefit. It is a
travesty, and it is unconscionable.
We remain a nation under threat of terrorism. Our allies remain under
threat of terrorism.
This is not hypothetical. The Islamic State in Iraq and the Levant--
ISIL--is seeking to recruit individuals to conduct attacks against the
United States. Tens of thousands of foreign fighters have entered Iraq
and Syria to join ISIL. There are hundreds of people inside the United
States right now that ISIL is seeking to inspire, direct, and assist in
carrying out an attack.
Al Qaeda in the Arabian Peninsula--AQAP--is developing non-metallic,
undetectable bombs for use on U.S. airliners and is teaching people how
to make such devices themselves. These groups are competing to be worst
of the worst in international terrorism and they are coming after us.
We aren't sending thousands of troops to confront ISIL in Iraq and
Syria or to stop AQAP in Yemen. We aren't going to diminish their
threats through partnership with local governments.
The only way we are going to stop attacks against the United States
and our people is by collecting good intelligence. To me, that means we
need to do everything lawful and effective in intelligence to identify
and thwart those attacks.
The roving wiretap provision is important. It says that the FBI
doesn't have to stop surveillance against a terrorist or a foreign spy
when he buys a new cell phone or changes his email account. Having to
do so in today's world would be ridiculous.
The ``lone wolf'' provision is important. To be clear--it hasn't been
used. But to be equally clear, never before have we faced the exact
threat that this provision was written to address: the threat of an
individual, inside this country, plotting to kill Americans without
traveling abroad and training with a terrorist group first.
The business records provision is important. It includes both routine
requests for records--hotel bills, car rentals, travel information--
that are regular parts of law enforcement and national security
investigations. It also authorizes the NSA's phone metadata program.
Under this provision, the NSA gets information about phone calls to
include the numbers on either end of the line, the time, and the
duration of the call. It does not include the words that are spoken as
part of the phone conversation, the identities of the people involved,
or their location.
What it does is help the Intelligence Community know more about
people for whom there is a ``reasonable articulable suspicion'' of
being tied to terrorist groups. If there is a terrorist in Syria
talking to Americans at home, we want to know that. If a phone number,
for example, in Garland, TX, is in touch with an ISIL operations chief,
we need to know. That information allows the FBI to go to a court for a
probable cause warrant to conduct electronic and physical surveillance
of a suspect.
This program is conducted under strict oversight and operational
limitations. The number of people at NSA with access to the data is
small--it was 22 in 2013. They have to get approval each time they do a
query of the phone records; today that approval comes from the FISA
Court. The query only returns information on what numbers were called
by, and called, the phone number in question, and then a second hop
from that number. There were 288 phone numbers approved for queries in
2012, and those queries led to 12 probable cause warrants by the FBI.
The program is overseen within the NSA by multiple officials,
including the inspector general and the privacy and civil liberties
officer. It is overseen by the Department of Justice, which reviews
every single query, and by the Office of the Director of National
Intelligence. It is overseen by the Intelligence and Judiciary
Committees of the House and the Senate, and it is overseen for
compliance purposes by the FISA Court.
So these are important tools that, because of Senate inaction and
recalcitrance, will expire tonight. As a result, we make ourselves more
vulnerable.
I very much regret this situation that the Senate has created, and I
urge my colleagues to vote for cloture and to quickly enact the USA
FREEDOM Act.
The PRESIDING OFFICER (Mr. Grassley). The Senator from Indiana is
recognized.
Mr. COATS. Mr. President, I also regret that we are where we are.
Remembering Beau Biden
I would also like to defer for just a moment, before I make my
remarks that I came to the floor to make, to add my condolences to Vice
President Biden, his wife, and his family. I just learned the tragic
news this morning. Some may have known that Beau was dealing with a
form of cancer. I did not know that. It came as a shock to hear that
information.
Having served with the current Vice President in the U.S. Senate and
having gotten to know him and his family, establishing a relationship--
a professional relationship as well as a friendship--I still cannot
begin to comprehend the grief that comes from the loss of a child. I
know there are Members in this body who have experienced that. I am
fortunate that Marsha and I have not experienced that. But any parent's
perhaps deepest fear is that they will outlive their children. That is
not the natural order of things. It is not how we think. And the grief
that comes from the death of a child, the death of a son or a daughter,
is truly deep and has significant impact.
It was impossible not to feel the emotion and shed tears early this
morning in our home in Indianapolis when we heard the news. Our
condolences and deep sharing of grief that we can't even begin to fully
comprehend because we haven't had to deal with it--all of that comes
across. I think every Member of this body reaches out to them with our
thoughts and our prayers as they go through this very tragic situation.
Mr. President, I am a little surprised to hear the Senator from
Vermont talking about how the Senate ought to just completely concede
to whatever the House sends to the Senate. The fact is that we had a
very significant discussion and debate on this issue all week before
the Memorial Day break and it had gone on for months, if not years,
before in the Intelligence Committee on which I serve and among Members
generally.
This is one of the most important pieces of legislation we will have
to deal with. It was drafted and spawned as a result of 9/11 when the
American people said: Are we doing everything we possibly can to
prevent something such as this from happening again?
Congress debated extensively the PATRIOT Act and the tools the
intelligence community suggested we give them the authority to use to
try to prevent that catastrophe from ever happening again and doing
everything we could to prevent terrorist attacks. Along the way, there
have been modifications, and there have been changes.
Recently, there has been significant national debate over whether one
of these many essential tools that help us gather the intelligence to
try to prevent and to understand the nature of the threat should be
used. There clearly is a difference of opinion among Members here in
the Senate and even in the House of Representatives. Yes, the Senate
did pass a reform measure that I think is flawed, personally. I think
it diminishes--it doesn't eliminate, but it diminishes and some even
believe it eliminates the usefulness of this particular program. We
went back and forth on that for a significant part of the week before
we adjourned.
The Senator from Vermont comes to the floor and basically says: Look,
the House passed this; so therefore we ought to just go ahead and pass
it. He said there was no other alternative presented, but that is not
the case. We had a procedural vote on the House bill, and we had a vote
on the bill to extend this program, so we can come spend a little more
time to try to figure out how best to deal with this issue. Neither of
those passed, indicating that the Senate did not have the same
consensus the House reached, which was a partial consensus. That is
what the Senate is all about. We are not just a rubberstamp for the
House.
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What is really ironic is the fact that for 4 years, under Democratic
leadership of this Senate, the House, under Republican leadership, sent
us hundreds of pieces of legislation, and if we followed the admonition
to us of the Senator from Vermont, we would have just rubberstamped
those. The House passed it, so why wouldn't we go forward? I don't
think that argument makes a lot of sense.
Senators are here to address issues in the U.S. Senate. Are there
many bills the House passes that I agree with? Yes. My party controls
the House. Are there bills here that I don't agree with that they have
passed? Yes. We, as Senators, use our prerogative in terms of where we
stand, and ultimately we take a vote and we either win or we lose.
Sometimes it coordinates with the House of Representatives and other
times it doesn't, so then we go to conference and we pass an
alternative. But to say there hasn't been debate relative to this
program in the House-passed bill is simply not true.
Unfortunately, there has been such a significant misrepresentation of
what this program is and what this program isn't, and that has caused a
lot of angst which we are trying to deal with. Much of the public--at
least some portion of the public--is convinced that the government is
listening to every phone call they make. It has been said on this floor
that they are listening to all our phone calls, that they are
collecting all kinds of data. They know everything about us. That is
the furthest from the point of this program and the operation of this
program that we can conceive of. Yet, a portion of the public has been
led to believe that Big Government is in their bedroom, in their house,
in their car, in their phone, and tracks them wherever they go; that
they are collecting everything about people, including what they buy at
Costco and the movies people rent through Netflix. Private industry
does collect that kind of stuff, but it is not the government. It is
not done under this program.
As a member of the Intelligence Committee, I can tell my colleagues
that we have spent hundreds of hours dealing with this program to
ensure that it doesn't violate anyone's privacy. It has more oversight
through all three branches of government. The executive branch, the
judicial branch, and the legislative branch oversee this program. There
are six layers within NSA itself that it has to go through, that
attorneys have to look at, that legal experts have to look at before
they can even proceed to suspect and then take that suspicion to a
court to have a judge say: Yes, you might have something here.
It has been said and it is true that unless a person's phone number
is in communication with a foreign phone number that is at least
strongly suspected of belonging to a terrorist organization--and
ultimately the court has to make that decision--a member of Al Qaeda,
ISIS, or some group overseas that is attempting to do harm to the
United States--why is this particular phone number--not the name of the
person who owns the phone number--why is this particular phone number
being called by someone in Yemen or being called by what we strongly
suspect is a foreign operative through ISIS, Al Qaeda, Yemen, or other
points where we know terrorist activity is rampant?
There is a signal that comes up that matches phone numbers, and they
say: We better look into this. But before they can look into it, it has
to be vetted by a court. It has to be taken to a FISA Court or an
intelligence court and judged by that court as something viable to
pursue. At that point, it is similar to what a court would order if
there were a warrant to go and find more information to see whether
this suspicion actually is reality.
We read about it every day and we watch it on television--``Law and
Order'' and all the shows and so forth--about how law enforcement
suspects that this particular activity is a criminal organization or
this is a drug house or they have reason to believe the perpetrator of
the crime is this individual. They can't go raiding their house. They
can't go downloading information about them until they go to a court
and receive approval from a judge saying: Yes, here you are, here is
your warrant. You can go and check this out.
Well, this intelligence program is based on the same principle; that
is, nobody can collect any information on anybody unless that court
approves that operation. Then it is turned over to the FBI, and they
look to see if it is the real thing. It is a tool that has been of
importance and has been a contribution to our ability to address the
potential of terrorist threats and to thwart them before they happen.
It has always been used as a way of proving the negative; that is, no,
this is OK, we don't need to follow up on this.
The best example is the Boston bombing. When the Tsarnaev brothers'
phone was accessed and it was run against the numbers, there was some
suspicion that additional terrorist activity would take place in New
York. It was proven that was not the case because there were no
connections made. So it became a valuable tool in that regard. Instead
of shutting down New York, putting them on a high terrorist alert--
perhaps the Nation's largest economy in operation there--we were able
to quickly determine that wasn't the case.
In response to those who basically say this has never stopped a
terrorist attack, two things: No. 1, this is one of the many methods we
use to collect the threads of intelligence that come from different
sources to try to put together a mosaic or a puzzle as to whether this
is something we need to deal with and take seriously. It is a major
piece of that puzzle we obtain from the 215 program, which is the
collection of phone numbers. We do not collect the names of people who
own those numbers. It is the collection of what is called metadata. It
has been described as simply the same data that is on our telephone
bills that the Supreme Court has said is not a breach of the Fourth
Amendment. It is not privileged for privacy purposes. It shows the date
the call was made, the duration of the call, the number that was
called, and that is it. And those numbers are put into a system whereby
we can check against that a number that suspiciously is talking to a
foreign operative in a foreign country. That then automatically
triggers that you better look at this--it is kind of a ping--you better
look at this one. Nobody has access, at this point, to any content
related to the name of the individual until it reaches a level of
suspicion that is vetted through six layers of oversight and then is
sent to a court that looks at it to say: We agree with you or we don't
agree with you. And if we agree with you, then it is the FBI who is
alerted that they better look into this.
Now, there has never been a time since 9/11 when we have dealt with a
higher threshold than we currently are dealing with. You hear about it
every day. You read about it every day. ISIS has recruited more than
20,000, it is estimated--significantly more than that are those from 90
different foreign countries. It has made a direct threat toward the
United States and its citizens. It is sponsoring and encouraging
individuals to not only come over and train and join ISIS and then come
back here and wreak havoc on the American people; it is also inspiring
those, saying if you don't want to travel over here, just go out and
kill somebody. Join the jihad from afar. You can be a part of what we
are trying to accomplish simply by doing your own thing. We saw that
happen down in Texas. We will see that in other places as people are
inspired through ISIS, for whatever sick reason, to take up arms, to
cause destruction, and to randomly kill and wreak havoc on the American
public.
It has been offered that the House fix--the reform, which did have
bipartisan support and did pass the House without a lot of debate--is
the solution to this problem. Some agree it goes too far; some agree it
doesn't go far enough. But there are problems with that particular
FREEDOM Act, which the Senator from Vermont says is the golden grail
here and will solve all the problems.
It is clear, and it is the testimony we have received from numerous
officials in the counterterrorism business and in the intelligence
business, that there are issues with this so-called FREEDOM Act fix
that could render--well, No. 1, that do render the program less
effective and could render it totally inoperative.
The fact that the NSA has not yet been able to come up with a program
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which would ensure that we could have the kind of collection we need in
the timeframe we need it--some of this is urgent, some of this is
pending, some of this is imminent, and it already goes through layers
that delay coming to a conclusion and this adds more.
Also, they have indicated the system is untested and exists in name
only. We don't know how the new program would be implemented and we
don't know how it would be operated. That is why many of us said: Look,
for whatever reason, yes, we are at this point, and, yes, it expires at
midnight. What we were trying to do before we left was get a short-term
extension. We were negotiating. We think it should have been for a
significant amount of time, until NSA could test out its program, but
we were willing to go much less than that so we could have an
opportunity to come back and debate this further and get to the bottom
of some of the misrepresented information that has been sent out to the
American people and have an opportunity to counter that and also work
together to find ways, through working with the House of
Representatives, to come up with a more effective bill that wouldn't
put the country in more jeopardy or, as some experts have said, would
undermine the entire program.
We obviously will be less agile with the House bill. It requires an
expansive regulatory system to amass the level of oversight over the
current program. I think the real problem is it requires no data
retention mandate. The USA FREEDOM Act does not require companies to
hold the data sought by the government. Therefore, the USA FREEDOM Act
could be operationally useless as companies update their business model
in response to changes in technology or market demand. The telephone
companies--all 1,400 of them--many don't want to go through the
expensive process of the oversight they need to have in the process.
They want to sell phones. And they are hearing a lot from customers who
basically say: I don't want to buy your phone if it is going to be
subject to them listening to everything I do and say--being collected.
Well, first of all, that is factually wrong, but it is an error that
has been said over and over on this floor by some Members. That is
absolutely wrong. It is false. If we are going to go forward here, we
need intellectual honesty about what the program is and what it isn't,
and it shouldn't be labeled as something it isn't. I will address that
at a later point in time.
But the USA FREEDOM Act, by not allowing retention for a fixed period
of time, also lessens our ability to make this program effective. So I
have much more to say on this, and I know we are going into caucus as a
party to see how we might go forward, given where we are.
It was not necessary that we be here on a Sunday with the clock
ticking toward midnight. We could have continued or we could have gone
forward without getting to this particular point in time. But now we
will have the opportunity--and, unfortunately, what it looks like is we
will have the opportunity to debate this while the program expires.
That is a bet I didn't want to take--the bet being that nothing will
happen if we don't have this tool in the amount of time that is going
to be taken to now address this. That is running a risk I am not sure
Members want to take. I don't want to be part of somebody who says this
isn't important enough; therefore, we will let it expire and we will
not extend it for a day or an hour or a month or a sufficient amount of
time to come to a reasonable conclusion as to how we retain this very
important intelligence-gathering tool to keep us safe from terrorists.
To go dark on this is a risk of Americans' lives. It is a risk that we
are taking, and we are going to be responsible for our vote, whatever
that vote is. I, personally, don't want the responsibility of saying:
Oh, don't worry. Nothing is going to happen out there. The hundreds of
hours that I spend in the Intelligence Committee tells me there is a
lot that can happen out there.
Members have every right, if they are not on that committee--every
right to access what we access. We have invited people to come down and
see it for themselves, so they at least understand what it is and what
it isn't. To my knowledge, only two have taken us up on that. There may
be more I have missed. But some of those who have stated this program
in a totally false way have the siren song to the people out there who
think Big Government is in their bedroom, Big Government is taking
every piece of information they have about themselves, and Big
Government is storing this and ``listening to all your phone calls.''
That is a bunch of hokum and it is wrong.
And for those who refuse to stand up and acknowledge that--because
they have had access to the program and refused to take that access--
have to bear the responsibility of sowing this wild theory and idea
about Big Government in your bedroom and Big Government in your car and
Big Government on your phone and Big Government collecting your emails
and Big Government doing everything and storing it until the time that
Big Government will come and take everything away from you.
I didn't come here to do that and this Senate isn't here to do that
and we will not do that. That is why this program has more oversight
than any other program in the entire United States Government, and we
will put more oversight on there if that is necessary. I will stay up
all night and stand over at NSA and make sure they are not listening to
your phone calls. But it is irresponsible misrepresentation--
irresponsible misrepresentation--to factually state a falsity and not
tell the truth.
It is time we told the truth and it is time we stood up to this thing
and make sure we are doing everything we can to protect Americans from
threats of a lot of people and a lot of organizations that want to kill
us all, that would like to see our heads on the chopping block. This is
real in our country, as people who are trained by ISIS not only flock
back here from Syria, but they inspire people here to pick up weapons
and do harm to the American people.
I know the Senator from Arizona has a question.
Mr. PAUL addressed the Chair.
Mr. COATS. I have not yielded the floor.
Mr. PAUL addressed the Chair.
Mr. McCAIN. Mr. President, I ask for the regular order, and I want to
ask the Senator from Indiana a question.
The PRESIDING OFFICER. The Senator from Indiana has the floor.
Mr. COATS. I would be happy to yield to the Senator from Arizona for
a question.
Mr. McCAIN. Maybe the Senator from Kentucky should know the rules of
the Senate, that the Senator from Indiana has the floor and the
gentleman is open to respond to a question.
My question to the Senator from Indiana--and I want to say that his
words are powerful and accurate.
Mr. PAUL. Mr. President, how much time remains on the clock for the
Republican side?
Mr. McCAIN. I would ask the Senator from Indiana if he has seen--
Mr. PAUL. Mr. President, how much time is remaining?
Mr. McCAIN. I ask for the regular order.
The PRESIDING OFFICER. I think the Chair has made very clear that the
Senator from Indiana has the floor.
Mr. COATS. Mr. President, I thank you.
I know the Senator from Kentucky understands that when a Senator has
the floor, they are entitled to speak because he has used that rule
himself.
Mr. McCAIN. Twice the Senator from Kentucky has not observed the
rules of the Senate.
I would ask the Senator from Indiana, you have seen the events lately
that are transpiring. ISIS has taken Palmyra. They are in the streets
burning bodies, killing people, going to destroy 2,000-year-old
antiquities, and at the same time Ramadi has fallen with thousands of
innocent men, women, and children being massacred. At this time, isn't
this program as critical as it has ever been since its inception, given
the fact that the Middle East is literally on fire and we are losing
everywhere?
Mr. COATS. It is more essential than ever, in response to the
question from the Senator from Arizona. It is more necessary than ever,
as we have seen a higher threat level since 9/11. Of course, we didn't
know what the threat was in 9/11, so I don't know how far we have to
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go back. But our intelligence today, whether it is any aspect of any of
our intelligence agencies, they are sounding the alarm that we need to
be as vigilant as possible. We need to, within the law--and we are
operating within the law--use every tool possible to try to stop an
attack on the American people. What happened on 9/11 was a catastrophe
that none of us could have comprehended. A 9/11 with the possession of
nuclear, radioactive, biological or chemical weapons would make New
York look like just a small incident. It would be 3 million people
instead of 3,000 people. I think we have an obligation to do what we
can without invading anyone's privacy.
What we are trying to find is this balance between protecting privacy
and protecting ourselves from terrorist attacks--protecting Americans
from terrorist attacks. We have done this with this program. If what
has been said about this program were true, if the falsehoods that have
been said were true, I would be the first to line up and say: No, we
can't breach the privacy of the American people by doing what they are
doing. But the fact is none of it is true. There has not been one act
of abuse of this program over the years it has been in place. It has
more oversight and layers of oversight. As former Attorney General
Mukasey said: For the government to violate and bypass this, it would
make Watergate look like kindergarten activity. It would be a
conspiracy that would include hundreds of people, and they would all
have to swear that they would not breach their conspiratorial process
here--a program that is overseen by the Judiciary Committee, by the
Senate Intelligence Committee, the House Intelligence Committee, the
body of the Senate has access to this and the body of the House--that
is 535 people--by the executive branch, a program that was endorsed by
Barack Obama, until he changed his mind, apparently, because the public
was going the other way based on false information. People are out here
basically making the accusations that they are making to try to take
this program down and all we are trying to do is work with the House to
find a reasonable way of keeping this tool alive--keeping Americans
safe.
Mr. McCAIN. Will the Senator yield for a further question?
The PRESIDING OFFICER. Would the Senator suspend?
Under the previous order, all time for debate has expired.
Mr. PAUL. Mr. President, my understanding is there is still 5 minutes
remaining on the opposition side. I request that time.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. I object.
Mr. PAUL. Mr. President, how can we have an objection when we already
have a consent agreement that says we have 30 minutes of equally
divided time and you still have 5 minutes remaining on the opposite
side?
The PRESIDING OFFICER. The time was divided in the usual form, and
the time for debate has expired.
Mr. PAUL. Mr. President, the time could not have been divided
equally, because apparently somebody must have given one side more time
than the other.
The PRESIDING OFFICER. The 5 minutes of time that was allotted to the
Democratic side was unused, and it was equally divided at 23 minutes
apiece.
Mr. PAUL. Mr. President, I was here for 30 minutes of the Republican
side speaking. I sat at my seat for 30 minutes. It was not 23 minutes
of equally divided time.
Mr. McCAIN. Mr. President, regular order--obviously people don't know
the rules of the Senate. Maybe they should learn them.
Mr. PAUL. Mr. President, I request the remaining 5 minutes of time on
the opposite side.
The PRESIDING OFFICER. Is there objection to the request of the
Senator from Kentucky?
Mr. McCAIN. I object.
Mr. PAUL. Mr. President, I challenge the ruling of the Chair and
request the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second.
Mr. PAUL. I request a live quorum call.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. PAUL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PAUL. Mr. President, I ask unanimous consent to speak for 5
minutes--the 5 minutes that was remaining on the opposition side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PAUL. Mr. President, let us be very clear about why we are here
this evening. We are here this evening because this is an important
debate. This is a debate over the Bill of Rights. This is a debate over
the Fourth Amendment. This is a debate over your right to be left
alone. Justice Brandeis said that the right to be left alone is the
most cherished of rights. The right to be left alone is the most prized
to civilized men.
Let us be clear. We are here tonight because the President continues
to conduct an illegal program. The President has been rebuked by the
court. In explicit terms, the President has been told that the program
he is conducting is illegal. Now, the President opines on television.
The President wants to blame--he says: Anybody but me.
But you know what. The President started this program without
congressional permission. Even the authors of the PATRIOT Act say that
the PATRIOT Act in no way gives authority to the President to collect
all of your phone records all of the time. If there ever was a general
warrant, if there ever was a generalized collection of information from
people about whom there is no suspicion, this is it.
We are not collecting the information of spies. We are not collecting
the information of terrorists. We are collecting all American citizens'
records all of the time. This is what we fought the Revolution over.
Are we going to so blithely give up our freedom? Are we going to so
blithely go along and just say: Take it. Well, I am not going to take
it anymore. I do not think the American people are going to take it
anymore.
Eighty percent of those under 40 say we have gone too far--that this
whole collection of all of our records all the time is too much. The
court has said: How can records be relevant to an investigation that
has not started? The court has said that even under these lower
standards, even under these standards of saying that it would be
relevant, all of the stuff they are collecting is precisely irrelevant.
Now people say: Well, they are not looking at it. They are not
listening to it. It is the tip of the iceberg, what we are talking
about here. Realize that they were dishonest about the program until we
caught them. They kept saying over and over: We are not doing this. We
are not collecting your records.
They were. The head of the intelligence agency lied to the American
people, and he still works there. We should be upset. We should be
marching in the streets and saying: He has to go. We cannot allow this.
We cannot allow the rule of law to be so trod upon that we live in an
arbitrary governmental world where they collect anything they want
anytime they want.
This is the tip of the iceberg. They are collecting records through
Executive order. They are collecting records through section 702.
People say: How will we protect ourselves without these programs? What
about using the Constitution? What about using judicial warrants? About
the Tsarnaev boy, the Boston Bomber, they say: How will we look at his
phone records? Get a warrant. Put his name on it. You can get a
warrant. There is no reason in the world--the guy had already bombed
us. Do you think anybody was going to turn down a warrant? We should
have gotten a warrant before.
Get warrants on people we have suspicion on. The Simpson guy that was
shot in Garland had already been arrested. We had suspicion.
Let's hire 1,000 more FBI agents. Let's hire people to do the
investigation and quit wasting time on innocent American people. Let's
be very clear why we are here: President Obama set up this program, the
President Obama who once was against the PATRIOT Act. President Obama
once said: You know what; we should have judges write warrants.
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President Obama, who once believed in the Fourth Amendment, is the
President who is now scooping up all of your records illegally. Then he
feigns concern and says: Oh, we need to pass this new bill. He could
stop it now. Why won't someone ask the President: Why do you continue?
Why won't you stop this program now? The President has every ability to
do it. We have every ability to keep our Nation safe. I intend to
protect the Constitution.
The PRESIDING OFFICER. The Senator's time has expired.
____________________