[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.

[[Page S3325]]

  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.

[[Page S3328]]

  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

[[Page S3329]]

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

[[Page S3330]]

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.

[[Page S3331]]

  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.

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