[Congressional Record Volume 161, Number 85 (Sunday, May 31, 2015)]
[Senate]
[Pages S3331-S3340]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         USA FREEDOM ACT OF 2015--MOTION TO PROCEED--Continued

  The PRESIDING OFFICER. The majority leader.
  Mr. McCONNELL. Mr. President, before the recess, I tried to get a 
short-term extension of three provisions that will expire at midnight 
tonight: section 215, business records; section 206, roving wiretap 
authority; and the ``lone wolf'' provision. Unfortunately, those 
efforts were unsuccessful.
  ``Lone wolf'' and roving wiretap are not--I repeat, not--the subject 
of controversy with the House bill. So I would propose that we extend 
at least the ``lone wolf'' and the roving wiretap authorities while we 
continue to litigate the differing views on section 215. More 
specifically, I would propose that we extend those two provisions--
``lone wolf'' and roving wiretaps--for up to 2 weeks.


                       Unanimous Consent Request

  Mr. President, having said that, I ask unanimous consent that the 
Senate proceed to the immediate consideration of a bill, which is at 
the desk, to extend the expiring provisions relating to ``lone wolf'' 
and roving wiretaps for 2 weeks, and that the bill be read a third time 
and passed, and the motion to reconsider be considered made and laid 
upon the table with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Kentucky.
  Mr. PAUL. Mr. President, reserving the right to object, one of the 
promises that was given when the PATRIOT Act was originally passed was 
that, in exchange for allowing a less than constitutional standard, we 
would only use the actions against----
  The PRESIDING OFFICER. Is there objection?
  Mr. PAUL. Terrorists and against foreigners. We found that 99 percent 
of the time, section 213 is used for domestic crime. I believe that no 
section of the PATRIOT Act should be passed unless our targets are 
terrorists--not Americans.
  Mr. CORNYN. Mr. President, regular order.
  The PRESIDING OFFICER. The Senator from Kentucky----
  Mr. COTTON. Regular order.
  Mr. PAUL. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. Mr. President, last week, I proposed giving the 
Intelligence Committee the time it would need to work toward the kind 
of bipartisan legislative compromise Americans deserve--a compromise 
that would preserve important counterterrorism tools necessary to 
protect American lives. That effort was blocked.
  Just now, I proposed an even narrower extension that would have only 
extended some of the least controversial--least controversial--but 
still critical tools to ensure they do not lapse as Senators work 
toward a more comprehensive legislative outcome. But even that very 
narrow offer was blocked. I think it should be worrying for our country 
because the nature of the threat we face is very serious. It is 
aggressive, it is sophisticated, it is geographically dispersed, and it 
is not--not--going away.
  As the LA Times reported, ``the Obama administration has dramatically 
stepped up warnings of potential terrorist attacks on American soil 
after several years of relative calm.'' The paper reported that this is 
occurring in the wake of ``FBI arrests of at least 30 Americans on 
terrorism-related charges this year in an array of `lone wolf' plots.''
  So these aren't theoretical threats. They are not theoretical 
threats. They are with us every day. We have to face up to them. We 
shouldn't be disarming unilaterally as our enemies grow more 
sophisticated and aggressive, and we certainly should not be doing so 
based on a campaign of demagoguery and disinformation launched in the 
wake of the unlawful actions of Edward Snowden, who was last seen in 
Russia.
  The opponents of this program have not been able to provide any--
any--examples of the NSA abusing the authorities provided under section 
215. And the record will show that, in fact, there has not been one 
documented instance of abuse of it.
  I think it is also important to remember that the contents of calls 
are not captured. That is the general view, but it is an incorrect one. 
I will say it again: The contents of calls are not captured. I say this 
to the American people: If you have been told that, that is not 
correct. That is what I mean about a campaign of disinformation. The 
only things in question are the number dialed, the number from which 
the call was made, the length of the call, and the date. That is it. 
That is it. Detailed oversight procedures have been put in place, too, 
in order to protect the privacy of Americans.
  Now, I believe this is a program that strikes a critical balance 
between privacy on the one hand and national security on the other. 
That doesn't mean the Senate still shouldn't have the opportunity to 
make some changes to it. That is precisely the outcome I had been 
hoping to facilitate by seeking several short-term extensions. And 
considering all that has come to light about the House-passed bill in 
recent weeks, I believe this was more than reasonable.
  The administration's inability to answer even the most basic 
questions about the alternate bulk data system it would have to build 
under that legislation is, to say the least, pretty troubling--pretty 
troubling. And that is not just my view. That is the view of many in 
this body, including colleagues who have been favorably predisposed to 
the House bill.
  In particular, I know Senators from both parties have been disturbed 
by the administration's continuing inability to guarantee whether the 
new system would work as well as the current one or whether there would 
even be any data available to analyze. While the administration has let 
it be known that this nonexistent system could only be built in time if 
telephone providers cooperated in building it, providers have made it 
abundantly clear that they are not going to commit to retaining the 
data. They are not going to commit to retaining the data for any period 
of time unless legally required to do so, and there is no such 
requirement in the House-passed bill--none at all.
  Here is how one provider put it: ``[We are] not prepared to commit to 
voluntarily retain documents for any particular period of time pursuant 
to the proposed USA Freedom Act if not required by law''--if not 
required by law.
  Now, these are just a few of the reasons I thought it prudent to try 
to give the Senate more space to advance better legislation through 
committee consideration and regular order, with input from both sides. 
But, my colleagues, it is now clear that will not be possible in the 
face of a determined opposition from those who simply wish to end the 
counterterrorism program altogether. No time to try to improve the 
House-passed bill will be allowed because some would like to end the 
program altogether.
  So this is where we find ourselves. This is the reality. So it 
essentially leaves us with two options. Option one is to allow the 
program to expire altogether without attempting to replace it. That 
would mean disarming completely and arbitrarily, based on a campaign of 
disinformation, in the face of growing, aggressive, and sophisticated 
threats--growing, aggressive, and sophisticated threats. That is a 
totally unacceptable outcome--a completely and totally unacceptable 
outcome. So we won't be doing that.

[[Page S3332]]

  So we are left with option two, the House-passed bill. It is 
certainly not ideal. But along with votes on some modest amendments 
that attempt to ensure the program can actually work as promised, it is 
now the only realistic way forward. So I remain determined to continue 
working toward the best outcome for the American people possible under 
the circumstances.
  This is where we are, colleagues. We have the House-passed bill with 
some serious flaws and an inability to get a short-term extension to 
try to improve the House-passed bill in the way we normally do this--
through some kind of consultative process.
  So bearing that in mind, I move to proceed to the motion to 
reconsider vote No. 194, the vote by which cloture was not invoked on 
the motion to proceed to H.R. 2048.
  The PRESIDING OFFICER. The question is on agreeing to the motion.
  The motion was agreed to.
  Mr. McCONNELL. Mr. President, I move to reconsider the motion to 
invoke cloture on the motion to proceed to H.R. 2048.
  The PRESIDING OFFICER. The question is on agreeing to the motion.
  The motion was agreed to.


                             Cloture Motion

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The senior assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to H.R. 2048, an act 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.
         Mitch McConnell, Lamar Alexander, Michael B. Enzi, David 
           Vitter, John Cornyn, Johnny Isakson, Lisa Murkowski, 
           John Barrasso, Richard Burr, Pat Roberts, Roy Blunt, 
           Bob Corker, Orrin G. Hatch, Jerry Moran, Patrick J. 
           Toomey, Mike Lee, Ted Cruz.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to H.R. 2048, an act 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, shall be brought to a close, upon reconsideration?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Wyoming (Mr. Enzi), the Senator from South Carolina (Mr. 
Graham), and the Senator from Nebraska (Mr. Sasse).
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. 
Menendez), the Senator from Washington (Mrs. Murray), and the Senator 
from Hawaii (Mr. Schatz) are necessarily absent.
  The PRESIDING OFFICER (Mr. Barrasso). Are there any Senators in the 
Chamber wishing to vote or to change their vote?
  The yeas and nays resulted--yeas 77, nays 17, as follows:

                      [Rollcall Vote No. 196 Leg.]

                                YEAS--77

     Alexander
     Ayotte
     Baldwin
     Bennet
     Blumenthal
     Booker
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Cochran
     Coons
     Corker
     Cornyn
     Cruz
     Daines
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gardner
     Gillibrand
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kaine
     King
     Kirk
     Klobuchar
     Lankford
     Leahy
     Lee
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Merkley
     Mikulski
     Murkowski
     Murphy
     Nelson
     Perdue
     Peters
     Portman
     Reed
     Reid
     Rounds
     Sanders
     Schumer
     Scott
     Shaheen
     Stabenow
     Sullivan
     Tester
     Tillis
     Toomey
     Udall
     Vitter
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--17

     Barrasso
     Blunt
     Coats
     Collins
     Cotton
     Crapo
     Ernst
     Fischer
     Grassley
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Thune

                             NOT VOTING--6

     Enzi
     Graham
     Menendez
     Murray
     Sasse
     Schatz
  The PRESIDING OFFICER. On this vote, the yeas are 77, the nays are 
17.
  Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, upon reconsideration, the motion is agreed to.
  The Senator from Kentucky.
  Mr. PAUL. Mr. President, could we have order?
  The PRESIDING OFFICER. The Senate will be in order.
  Mr. PAUL. Will the Chair inform me when I have 5 minutes remaining?
  The PRESIDING OFFICER. The Senator will be so notified.
  Mr. PAUL. Mr. President, tonight begins the process of ending bulk 
collection. The bill will ultimately pass. We always look for silver 
linings. I think the bill may be replacing one form of bulk collection 
with another, but the government, after this bill passes, will no 
longer collect our phone records. My concern is that the phone 
companies still may do the same thing. Currently, my understanding is 
the NSA is at the phone company sucking up the phone records and 
sending them to Utah. My concern is----
  The PRESIDING OFFICER. Order in the Senate, please. The Senator 
deserves to be heard.
  Mr. PAUL. My concern is that under the new program, the records will 
still be sucked up into NSA computers, but the computers will be at the 
phone company, not in Utah. So the question is, Will it be a 
distinction without a difference? The question also will be, Will this 
be individualized?
  One of the issues about the Fourth Amendment that was the biggest 
part of the Fourth Amendment for our Founding Fathers was that a 
warrant should be individualized. General warrants were what we fought 
the Revolution over. James Otis fought a famous case in the 1760s, and 
he fought against the British soldiers writing their own warrants.
  What is interesting is that part of the PATRIOT Act allows our police 
to write their own warrants. We have something called national security 
letters. These have been done by the hundreds of thousands. 
Interestingly, when the President was in the Senate, he was opposed to 
national security letters and said that they should have judicial 
warrants. Now, it is interesting that in this bill that will pass, it 
is supported by the President, supported by the Director of National 
Intelligence, and now supported in a wide bipartisan fashion.
  It concerns me whether or not----
  The PRESIDING OFFICER. The Senate will be in order.
  Will the Senator please suspend.
  The Senate will be in order. Please take your conversations out of 
the well, out of the Chamber. The Senator deserves to be heard.
  Mr. PAUL. It concerns me that the President, who supports the bulk 
data collection and has been performing it illegally for 6 years, now 
supports this bill. The devil is in the details.
  The question is, Will the new bill still allow bulk collection by the 
phone companies? Will they be able to put into the search engine not an 
individual about whom we have suspicion but an entire corporation? This 
is what was revealed when we saw the warrant that had Tsarnaev's name 
on it.
  The Director of National Intelligence came before the American 
people, came before Congress and swore under oath that they weren't 
doing this. Part of my problem with the intelligence-gathering in our 
country is it is hard for me to have trust. It is hard for me to have 
trust in the people to whom we are giving great power.
  They also insist we won't be able to catch terrorists. They insist 
the bulk collection allowed them to catch terrorists. But then it 
turned out, when it was investigated, when we looked at the classified 
documents, when the President's bipartisan privacy and civil liberties 
commission looked at this, when his review board looked at this, and 
then when the Department of Justice inspector general looked at this,

[[Page S3333]]

they all found that there was no unique data, there was no great 
discovery, there was no great breaking up of a terrorist ring.
  People have brought up the Boston Bomber, the Tsarnaev boy. They say: 
Well, we need this. We need the PATRIOT Act after the bombing to get 
his phone records.
  That is the most absurd thing I have ever heard. He has already 
committed a bombing. In fact, I think he was dead at that point, and 
they are saying we couldn't get a warrant to look at his phone records? 
It is absolutely absurd.
  I had a meeting with somebody from the intelligence community about 6 
months ago, and I asked them this question: How do we get more 
information about terrorists--with a warrant with their name on it, 
where we can go as deep into the details as we want, or this metadata 
collection that uses a less-than-constitutional standard? And he said: 
Without question, we get more information with a warrant than we do 
through the metadata.
  When someone commits an act of atrocity, there is no question we 
would get a warrant, but I would go even further. I would say that I 
want to get more warrants on people before they blow up things. I would 
say that we need more money spent on FBI agents analyzing data and 
trying to find out whom we have suspicion about so we can investigate 
their records. I think we spend so much money on people about whom 
there is no suspicion that we don't have enough time and money left to 
go after the people who would actually harm us.
  The people who argue that the world will end at midnight tonight----
  The PRESIDING OFFICER. The Senator will please suspend.
  Order in the Chamber. Please take your conversations off the floor.
  Mr. PAUL. The people who argue that the world will end and that we 
will be overrun by jihadists tonight are trying to use fear. They want 
to take just a little bit of our liberty, but they get it by making us 
afraid. They want us to fear and give up our liberty. They tell us that 
if we have nothing to hide, we have nothing to fear. That is a far cry 
from the standard we were founded upon--innocent until proven guilty.
  One of the objections I tried to bring forward earlier but was 
interrupted repeatedly was that the PATRIOT Act was originally intended 
to go after foreigners and terrorists. We allowed a less-than-
constitutional standard. We didn't ask for probable cause; we just said 
it had to be relevant, the information had to be relevant to an 
investigation about terrorists. But here is the problem, and this is 
one of the big problems I have with the PATRIOT Act.
  We now use parts of the PATRIOT Act to arrest people for domestic 
crime. Section 213, sneak-and-peek, where the government can come into 
your house, place listening devices, never announce they were ever in 
your house, and then leave and monitor your behavior and never let you 
know they were there, is being used 99.5 percent of the time for 
domestic crime.
  So, little by little, we have allowed our freedom to slip away. We 
allowed the Fourth Amendment to be diminished. We allowed the narrowing 
loss of something called probable cause.
  People say: Well, how would we get terrorists with that?
  The vast majority of warrants are approved in our country--the vast 
majority of warrants that are Fourth Amendment warrants where we 
individualized and put a name on it and asked probable cause. If 
tonight the police are looking for a rapist or a murderer, they will go 
to the house, and if they suspect the person is inside but nothing is 
imminently happening, they will stand on the curb and they almost 
always get a warrant.
  Do you think there is a judge in this land who would not grant a 
warrant--particularly after the Boston bombing--to look at the Tsarnaev 
brothers' records? There is not a judge in the land who would say no. I 
would venture to say that in advance there is not much chance that a 
judge would say no if you went to them and said: The Russians have 
given us indication and evidence that he has been radicalized and has 
associated overseas with people who are training to attack us.
  There is no reason why the Constitution can't be used. But we just 
have to not let those who are in power make us cower in fear. They use 
fear to take your freedom, and we have to be very, very careful of 
this.
  Now, some are saying I am misrepresenting this, that I am saying the 
government is listening to your phone calls. I am saying they are 
collecting your phone records. There are programs, though, in which 
there may be looking at content--emails, for example. The current law 
says that after 6 months even the content of your email has no 
protection. We have a very good piece of legislation to try to fix 
that. But realize that those who are loud, those who are really wanting 
you to give up your freedom, don't believe the Fourth Amendment 
protects your records at all.
  And this is a big debate. We went to the court. The Second Circuit 
Court of Appeals--the highest court in the land just below the Supreme 
Court--said that what they are doing is illegal, but we don't yet have 
a ruling on whether it is constitutional.
  One of my fears about the bill we are going to pass--the sort of in-
between step some think may be better--is that it could moot the case. 
This means the court case will never get heard by the Supreme Court. I 
have a court case against the NSA. There is another district court that 
has ruled against the NSA. We now have an appellate ruling against the 
NSA. The court may well look at the activity of the Senate and say: 
Well, you guys have fixed the problem. We don't need to look at it 
anymore. It is no longer relevant.
  My other concern about this new bill that is going to pass is that 
the same people will judge it who judged the previous system. These 
people are called the rubberstamp courtroom, also known as FISA. 
Realize that the FISA Court is the court that said the collection of 
all Americans' records is relevant. The appellate court basically 
laughed at this notion and said that it sort of destroys any meaning to 
the word ``relevant'' if you collect everybody's records. It is not 
even a modifier. Instead of saying ``relevant,'' they should have said 
``You can have everyone's records all the time.''
  One of my other concerns about the in-between solution we are going 
to choose is that some are conjecturing--and you have to be suspicious 
of a government that often lies about their purpose--some are 
conjecturing that they are going to collect more phone data under the 
new system. One of the complaints last week, as there was discussion 
about this--in the newspaper, it was reported that really they were 
only collecting about 20 to 30 percent of your cell phone data. They 
were trying to collect all of your land line data, but they weren't for 
some reason collecting all of your cell phone data. One of my concerns 
is that as we go to this new system, they may actually be better at 
collecting our phone records and they may well be able to collect all 
of our cell phone data.
  Unless we go to a system where we individualize the warrants, unless 
we go to a system where a person's name is on the warrant, I am going 
to be very, very concerned.
  Now, we will present amendments on this bill. We tried to negotiate 
to be allowed to present amendments, but there wasn't a lot of 
negotiating that went on in the last week--in fact, there was none. We 
will still try. We will put amendments forward, and we will try to get 
amendments to make the bulk collection less bad when it does occur. One 
of the things we would like to do is to say that when they search the 
phone records, they can't put the name of a corporation in there; they 
would have to put in an individual's name.
  It is kind of tricky, the way these things are worded. The wording of 
this bill will say they can only put a U.S. person into the selector 
term to search all phone records. The problem is that they define 
``U.S. person'' as also meaning corporation or association or grouping. 
So there is a little bit of looseness to the language. So if we are 
still going to allow corporations, what is to stop them from going back 
and putting AT&T or Verizon in the selection? Once again they will be 
looking at all the phone records, and all we will have done is 
transferred the phone records from government control in Utah to phone 
company control in another location. Will we be trading bulk collection 
in Utah for bulk collection under the phone companies?
  There are good people who believe this bill will reform, and I think 
they

[[Page S3334]]

are well-intended. I think they are good people who really think that 
we will end bulk collection and that it won't happen. My fear, though, 
is of the people who interpret this work at a place known as the 
rubberstamp factory over at FISA. It is a secret court, and it is a 
court in which 99.5 percent of the time they approve warrants. Warrants 
are simply rubberstamped over there. In fact, they approved that 
``relevant'' meant all of your records. So my question is, If they put 
AT&T as a selector item, will we have the same thing, just in a 
different location?
  I have several amendments I am interested in if we are able to amend 
the bill.
  One is that the search would have to be an individual. That is more 
consistent with the Fourth Amendment.
  Another one would change the standard to the constitutional standard, 
which would be that there would have to be probable cause, which is a 
higher standard than simply saying it is relevant. Then we would 
actually be sending a new signal to the FISA Court.
  Another amendment I have, which I think would go a long way toward 
making the PATRIOT Act less bad--I think is the best way to put it--
would be to say that any information gathered under a less-than-
constitutional standard could only be used for foreigners and 
terrorists. See, that was the promise. At the time, there were people 
who opposed the PATRIOT Act--not enough, but there were a few--and when 
they opposed the PATRIOT Act, they said their fear was that it would be 
used against American citizens.
  They said: No, no, we are only going after terrorists. But the law 
allows them to do it, and we now have sections of the PATRIOT Act which 
99.5 percent of the time are being used for domestic crime. We have 
also seen that the Drug Enforcement Agency--it is alleged--is using 
information gathered under the PATRIOT Act to then go back and recreate 
cases against people for domestic crime.
  The question we have to ask ourselves is, Are we so frightened that 
we are willing to give up our freedom? Are we really willing to trade 
liberty for security?
  I think the U.S. Court of Appeals had some great points that they 
made when they ruled against the government, and I think what is 
important to know is that the President has continued to do this 
illegally. You have seen him on television. The President has been 
saying: Well, Congress is just getting in the way. If Congress would 
just do their job and get rid of this, everything would be OK. But the 
truth is that Congress never authorized this. Even the authors of the 
PATRIOT Act said this was not something Congress ever even 
contemplated. The court is now saying that as well. This was done by 
the executive branch--admittedly, both a Republican executive branch 
and a Democratic executive branch--but this wasn't created by Congress.
  So when the President says ``Well, Congress should just do this,'' 
the question that has never been asked by anyone in the media is ``Why 
doesn't he stop it?'' Everybody who has given advice has said he would, 
and he will come out and say he believes in a balanced solution, but he 
really is just abdicating the solution and has never discontinued the 
program, even when he has been told explicitly by the court that the 
program is an illegal program.
  This is what the U.S. court of appeals said in the case ACLU v. 
Clapper:

       We agree with the appellants that such an expansive concept 
     of ``relevance'' is unprecedented and unwarranted. . . . The 
     records demanded are not those of suspects under 
     investigation, or of people or businesses that have contact 
     with such subjects, or of people or businesses that have 
     contact with others who are in contact with the subjects.

  So even two steps removed, we are gathering records that are 
completely irrelevant to the investigation. We are gathering up the 
phone records of innocent Americans.
  The other side will say: Well, we are not looking at them.
  So I have been thinking about this. Our Founders objected to the 
British soldiers writing warrants. They objected to them coming into 
their house and grabbing their papers. Do you think our Framers would 
have been happy if the British Government said: OK, we are just 
breaking your door down, we are just getting your papers, but we are 
not going to look at them. Do you think that would have changed the 
mindset of the Framers? So the fact that they say they are not looking 
at our records--is that any comfort or should it be any comfort? The 
act of violation is in taking your records. The act of violation is in 
allowing the police or a form of the police--the FBI--to write warrants 
that are not signed by a judge.
  The court goes on to say: ``The interpretation that the government 
asks us to adopt defies any limiting principle.'' The idea of a 
limiting principle when the court looks at things is that, the way I 
see it, is the difference between something being arbitrary, where 
there is no sort of principle that confines what would happen--if you 
have a law that has no limiting principle, it is essentially arbitrary.
  This is what Hayek wrote about in ``The Road to Serfdom.'' Hayek 
talked about the difference between the rule of law and having an 
arbitrary interpretation of the law.
  The danger of having an arbitrary interpretation of the law and the 
danger of having general warrants is that they have been used in the 
past with bias. People have brought their own bias into this. In the 
sixties, the bias was against civil rights activists and against 
Vietnam war activists. In the forties, the bias was in incarcerating 
and interring Japanese Americans. But what was consistent in all of 
these circumstances was that there was a generalization--a 
generalization based on the color of your skin, whether you were Asian 
American or African American, and also about the shade of your 
ideology. There is a danger in allowing the government to generalize 
without suspicion and to disobey the Fourth Amendment, and the danger 
comes that the government could one day generalize and bias could enter 
into things.
  We have on our records right now laws that allow an American citizen 
to be detained. It is not specifically a part of the PATRIOT Act, but 
it is along the same lines as this, that you are getting rid of the due 
process amendments and the ability of the Bill of Rights to protect an 
individual. When we allow an individual to be detained without a trial, 
what happens is that there is the possibility that someone could decide 
we don't like ``those'' people. And when you say that could never 
happen, think about the times in our history when it has.
  Richard Jewell, everybody said he was the Olympic Bomber. He was 
convicted on TV. Within hours, people said: Richard Jewell is guilty. 
Think about if he had been a Black man in 1920 in the South what may 
have happened to him. Think about the possibility for bias entering 
into our government. Think about what Madison said about government 
is--Madison said that we restrain government because we are worried 
that government may not be comprised of angels. If government were 
comprised of angels, we would not have to worry about restraining 
government.
  Patrick Henry said that the Constitution was about restraining 
government, not the people. It is not enough for people to say: Oh, I 
am a good man or I am a good person or the NSA would never do this. The 
other problem that makes us doubtful is that the NSA has not been 
honest with us. If they want to develop trust again, the President 
should have immediately let the person who lied to us go, the Director 
of National Intelligence.
  The appeals court concluded by saying that the government's bulk 
collection of telephone metadata exceeds the scope of what Congress has 
authorized and therefore violates section 215 of the PATRIOT Act. Some 
will try to argue that this debate was not worth the time we took on 
it. I could not disagree more. I am like everybody else. You know, I 
prize my time with my family and being at home on the weekends. I wish 
we would have done this in a more sensitive way, where we would have 
had more time and had an open amendment process.
  But we waited until the end. We waited until the final deadline. This 
is a characteristic of government. It is a flaw in government, frankly. 
We lurch from deadline to deadline. People wonder why Congress is so 
unpopular. It is because we go from deadline to deadline and then it 
is: Hurry up. We have no time to debate. We just must pass it as is.

[[Page S3335]]

  The biggest debate against amendments is--and it finally convinced 
people who did not like this. They so much dislike amendments and 
slowing down the process, they are just going to take it. Even though 
they don't like it, they are going to pass what the House passed. It is 
unlikely any amendments will pass.
  But the thing is, we need to get away from lurching from deadline to 
deadline. What happens, with budget or spending or any of these bills, 
is we are presented with thousand-page bills with only hours to go. 
About a year ago this came up. At that time, we were presented with a 
1,000-page bill with 2 hours to go. I read the Senate rules. It said: 
We are supposed to be presented with the bill for 48 hours in advance.
  So I raised my hand and made a motion. The motion I made was: Guys, 
we are breaking the rules here. Men and women, we are breaking the 
rules here. So they just voted to amend the rules for that bill and 
ignore the rules. This is why the American people are so frustrated. 
People here in town think I am making a huge mistake. Some of them, I 
think, secretly want there to be an attack on the United States so they 
can blame it on me. One of the people in the media the other day came 
up to me and said: Oh, when there is a great attack, are you going to 
feel guilty that you caused this great attack?
  The people who attack us are responsible for attacks on us. Do we 
blame the police chief for the attack by the Boston Bombers? The thing 
is, is that there can be attacks even if we use the Constitution. But 
there have been attacks while collecting your bulk data. So the ones 
who say: Well, when an attack occurs, it is going to be all your fault, 
are any of them willing to accept the blame? We have bulk collection 
now. Are any of them willing to accept the blame for the Boston 
bombing, for the recent shooting in Garland?
  No, but they will be the first to point fingers and say: Oh, yes, it 
is all your fault. We never should have given up on this great program. 
I am completely convinced that we can obey the Constitution, use the 
Fourth Amendment as intended, spirited letter of the law, and catch 
terrorists. When we look objectively at this program, when they 
analyzed the classified information, they found that there was no 
unique data. We had to fight them tooth and nail because they started 
out saying that 52 cases were cracked by the bulk data program.
  But then when the President's own bipartisan commission looked at it, 
it turned out that none of that was true. This gets back to the trust 
issue. If we are going to be lied to by the Director of National 
Intelligence, it is hard for us to believe them when they come forward 
and they say: Oh, this is protecting us. We have to have it. But what 
we are hearing is information from someone who really did not think it 
was a big deal to lie to us about whether the program even existed.
  Mark my words, the battle is not over. There are some--and I talked 
with one of the, I would say, smarter people in Silicon Valley, 
somebody who knows this from an intimate level, how things work, and 
how the codes and programs work.
  He maintains that the bulk collection of phone data is the tip of the 
iceberg, that there is more information in other data pools that are 
classified. Some of this is done through an Executive order called 
12333. I am not sure I know everything in it. I have had no briefings 
on it. So anything I will tell you is from the newspaper alone. But the 
thing is, is that I would like to know: Are we also collecting your 
credit card information? Are we collecting your texts? Are we 
collecting your emails?
  They have already told us the Fourth Amendment does not protect your 
emails, even the content, after 6 months. In fact, really they have 
told you, the Fourth Amendment does not apply to your records at all. 
So be very careful about the people who say: Trust us. We will never 
violate your freedom. We will never take advantage of things. The 
President's Privacy and Civil Liberties Oversight Board's conclusion 
was that:

       Section 215 of the PATRIOT Act has shown minimal value in 
     safeguarding the Nation from terrorism. We have not 
     identified any single instance involving a threat to the 
     United States in which the program made a concrete difference 
     in the outcome.

  The President's privacy board went on to say:

       The government's collection of a person's entire telephone 
     calling history has a significant and detrimental effect on 
     individual privacy.

  When they talked about whether the phone records were relevant to an 
investigation, the President's Commission said this:

       First, the telephone records acquired under the program 
     have no connection to any specific FBI investigation at the 
     time of their collection. Second, because the records are 
     collected in bulk, potentially encompassing all telephone 
     calling records across the Nation, they cannot be regarded as 
     relevant to any FBI investigation.

  Here is the continuing danger to us, though: It is, I think, maybe a 
minor success that we are going to prevent the government from 
collecting these records. But realize that the interpretation of this 
will still occur in secret in the FISA Court. This is the FISA Court 
that said that collecting everyone's records was relevant.
  It completely destroys the notion that the word ``relevant'' has any 
meaning at all. This will be the question: Whether we can trust the 
FISA Court to make an interpretation that is at a higher degree of 
discernment than the one in which they said ``relevant'' can mean 
anything. The original USA FREEDOM Act, as passed originally by the 
House committee, was a better bill. It was gradually watered down until 
even the Director of National Intelligence, the one who lied about the 
program, now supports it, which gives me some misgivings.
  But the records that will be collected--the question is, How will we 
have an interpretation by the FISA Court? The original bill had an 
advocate. I thought this was a good part of the original bill. There 
would be a judicial advocate who would argue on the side of those who 
were having their records taken. So there would be an adversarial 
court, lawyers on both sides.
  Many people who write about jurisprudence and trying to find justice 
say that one of the essential functions of a court system, in order to 
find justice, is that there has to be a lawyer on both sides. There has 
to be an advocate on both sides. The truth is not always easy to find. 
The truth is presentation of facts by one side, presentation of 
contrary facts by the other side, and someone has to figure out which 
facts are more believable or which facts trump other facts.
  So I think a judicial advocate would have been good. They are still 
going to have it. They call it by a different name now, but it will be 
optional at the discretion of the FISA Court. So the court that ruled 
that all of your records are relevant now will have a choice as to 
whether to give you an advocate. That does not give me a great deal of 
comfort.
  There are other ways we could do this. We occasionally do look at 
terrorism cases in regular Federal court. When names come up that could 
jeopardize someone's safety at our intelligence agency or a secret, 
Federal courts can go into secret session. I have heard the Senator 
from Oregon often mention this. I think it is a great point that no one 
wants to reveal the names of anyone or the code or the secrets of how 
we do this. But if we are talking about constitutional principles, we 
want to do it in the open. Laws should not be discussed in secret.
  As we move forward, the PATRIOT Act will expire tonight. It will only 
be temporary. They will ultimately get their way. But I think the 
majority of the American people actually do believe the government has 
gone too far. In Washington, it is the opposite, but I think Washington 
is out of touch. There will be 80 votes, you know, to say: Continue the 
PATRIOT Act--maybe more.
  But if you go into the general public, if you get outside the beltway 
and visit America, you find it is completely the opposite. There was a 
poll a couple of weeks ago that said: Over 80 percent of people under 
age 40--over 80 percent of them--think that the government collecting 
your phone records is wrong and should not occur. So I think really 
this will be useful. People say: You are destroying yourself. You 
should have never done this. The American people will not side with 
you.
  People wished me harm and wished that this would be unsuccessful. But 
you know what, I came here to defend the Bill of Rights and to defend 
the

[[Page S3336]]

Constitution, popular or not. But I frankly think that the Bill of 
Rights and the Constitution are very popular, very important, and I 
will continue, as long as I have breath and as long as I am here to 
defend them.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, before he leaves the floor, I just want to 
make sure, having worked with Senator Paul for many, many months now, 
that I especially appreciate his efforts in the last few days in this 
week to try to accommodate this body with respect to amendments. My 
colleague has said repeatedly that he was very interested in a short 
list of amendments, that he hoped to have some modest time that would 
be available for these amendments.
  He and I have worked together on a number of them. I think it is a 
reflection, as people think about this debate and on a topic that is of 
such enormous importance, that my colleague from Kentucky, especially 
with respect to this amendment issue, has tried continually to be 
reasonable and to be accommodating to this body.
  Until just a few hours ago, I was at home in Oregon having townhall 
meetings, flew all night to be here for this extremely important 
session. Of course, the topic we discussed this evening was front and 
center in terms of my constituents.
  The message from Oregonians at these townhall meetings was very 
clear. The people whom I have the honor to represent in the Senate want 
policies that advance their security and protect their liberties. The 
program we have been talking about tonight in the Senate really does 
not deliver either. It does not make us safer. It chips away at our 
liberties.
  I am going to spend a little bit of time this evening making the case 
for those kinds of arguments and laying out the challenge for the days 
ahead.
  Now, with respect to this safety issue, all of us understand--
particularly the Presiding Officer, who has been on the Intelligence 
Committee, as I have, for over 14 years--that it is a dangerous world. 
Anyone who serves on the Intelligence Committee knows that beyond any 
kind of debate.
  So we want policies that really deliver both security and liberty. 
This is what the President's own experts had to say with respect to 
this program that involves collecting millions and millions of phone 
records on law-abiding Americans. This was a group that was appointed 
and spent a considerable amount of time looking at the bulk phone 
records collection program. They issued a report, and will I just 
paraphrase what is the central finding, on page 104 of their report: As 
to information contributed to terrorist investigations by the use of 
section 215 telephony metadata--that is the collecting all of these 
millions and millions of phone records--these experts say that ``could 
readily have been obtained in a timely manner using conventional 
Section 215 orders.''
  Now, the reason that is important is it spells out and recognizes 
that those who signed this report are individuals with some of the most 
pristine antiterror credentials in this country--Mike Morell, for 
example, the former Acting Director of the CIA; Richard Clarke, who 
held an extremely important position in two administrations and served 
with both Republicans and Democrats. Both of them are signatories to 
this important report.
  Beyond that--and it has not received much attention--the reality is 
that our government, on top of everything else, has emergency 
authorities so that when those who are charged with protecting our 
country believe there is a threat to the Nation, they are allowed to 
issue an emergency authorization to get the information they need right 
away, and then they can go back and get the warrant approved after the 
fact.
  Nobody is talking about eliminating that emergency authority. So what 
we have is a program that the most authoritative antiterror experts in 
the country believe does not make our Nation any safer. I read the most 
significant finding in their report.
  On top of that, as I just indicated, emergency authorities are still 
preserved. In fact, I have indicated to our President and to those who 
work in the intelligence agencies that if at any point the executive 
branch and, particularly, the intelligence agencies feel that their 
emergency authorities are inadequate to protect the country, I 
personally would be willing to support efforts to ensure that those 
emergency capabilities are reformed and our country can take the steps 
it needs when it is necessary.
  On top of this question, with respect to the issue of our safety, I 
want to talk about what I heard at some length earlier today with 
respect to how the program worked. I heard a number of Senators say 
that nobody in government is listening to these calls. That was 
repeated a number of times on the floor of this body.
  When the government, under this program, knows whom you called, when 
you called, and where you called from, in many instances the government 
doesn't need to be listening. If the government knows, under this 
program, that a person called a psychiatrist 3 times in 36 hours--twice 
after midnight--that is a lot of private and personal information. The 
government doesn't need to be listening to that call.
  So as to this notion that some who have wanted to make sure that our 
country would have both security and liberty are saying that it is a 
fantasy that the government is listening to calls, I could tell you 
that those who have been trying to reform the program have said, in 
effect, that the government doesn't need to listen to those calls. If 
the government has that amount of private and personal information, the 
government knows a lot about you, and it really doesn't need to listen. 
Certainly, if you are talking about a land line, then the government 
knows where you are calling from if they have a phone book.
  So with respect to this question of the government listening, I want 
it particularly understood that a program such as this, when the 
government has this kind of information, I believe, represents a threat 
to our liberty. The reason why I think so is that hardly a week goes by 
when databases aren't violated. No. 1, we see that reported regularly 
in the press. No. 2, we have known about unfortunate times in our 
history--J. Edgar Hoover comes to mind--when this kind of information 
could be used. And, No. 3, I have been very concerned, given what our 
former colleague, Senator Udall, and I had to do with respect to bulk 
phone record collection of email. We battled to end this. Of course, 
this was email that could be read by government agencies. We battled 
with various intelligence leaders saying that we felt this was a 
violation of people's rights and it wasn't effective. They asserted for 
months and months that it was. Finally, one day they woke up and said 
the program wasn't needed any more.
  None of this would have even happened had not Senator Udall and I 
made that case repeatedly. The intelligence leadership knew that we 
were not going to give it up, but that is what goes on if there isn't a 
check on some of these kinds of procedures.
  Senator Paul made mention of the fact that the intelligence 
leadership has not exactly been straight with the American people on 
these issues. I emphasize that we are not talking about the thousands 
and thousands of law-abiding patriotic, dedicated, wonderful people who 
work in the intelligence field. Day in and day out they do so much for 
our country. We are so appreciative of all they do. They are the ones 
who do the hard work, for example, to capture Bin Laden and day in and 
day out to make us safer. But the intelligence leadership, on the other 
hand, as noted by our colleague from Kentucky, has not always been 
straight with the American people. I spent many months trying to 
decipher what the former NSA Director meant when he said the government 
doesn't collect any dossiers on millions of Americans.
  I pointed out I had been on the Intelligence Committee for a long 
time and I had never heard the term ``dossier'' used. So I tried to 
learn more about it, used private opportunities and public 
opportunities, and just couldn't get the information. So, finally, I 
said: I have to ask this question in public.
  On the Intelligence Committee you don't get but perhaps 20 or 25 
minutes a year to ask questions in public, to hold intelligence leaders 
accountable

[[Page S3337]]

on policy matters--not secret operations, because secret operations 
have to stay secret, but policy matters.
  So, after being stonewalled for many months--many months--I finally 
said I have to ask this question in public. So to make sure no one 
would feel ambushed, I sent the question to the Director of National 
Intelligence, Mr. Clapper. I sent it a day ahead of time.
  Then I didn't hear anything about its being inappropriate or in 
violation of classification rules. So I asked in public: Does the 
government collect any type of data at all on millions or hundreds of 
millions of Americans? I was told no, and that answer was obviously 
false. I tried to get it corrected, and we still couldn't get it 
corrected.
  Of course, then Mr. Snowden spoke out publicly and pointed that out. 
Since that time, the Director of National Intelligence and his 
representatives have given these five different explanations for why 
that answer was given. So that is why you have to ask the hard 
questions. You have to ask the hard questions about these issues.
  I see my friend and colleague Senator Heinrich has joined us tonight. 
I am so pleased that he has joined the Intelligence Committee. Senator 
Heinrich is one of those Senators who subscribes to that view that I 
just mentioned--that it is our job to ask the hard questions. It may be 
uncomfortable. It is not designed in any way to convey disrespect. We 
see it as our job to ask the hard questions.
  I would be interested in my colleague's thoughts with respect to this 
issue and to have him be given a chance to participate in this 
colloquy.
  The PRESIDING OFFICER (Mr. Johnson). Without objection, it is so 
ordered.
  Mr. HEINRICH. First, I thank my friend from Oregon and I recognize 
the substantial leadership he has shown on this issue over the years. 
Long before I came to the Intelligence Committee and long before Edward 
Snowden began to steal documents, Senator Wyden, along with Senator 
Mark Udall and others, were doing everything they could--without 
disclosing classified information--to shine a light on the fact that 
the U.S. Government was collecting massive volumes of data on millions 
of law-abiding American citizens. My friend from Oregon deserves our 
thanks for that leadership.

  Now, after the bulk call data collection program was revealed to the 
public, the government, frankly, defended it and defended it 
vigorously. It took a number of months for the intelligence community 
and the rest of the administration to take a deep breath and really 
assess whether bulk metadata collection was necessary, whether it was 
effective, and to consider whether there were other less intrusive, 
more constitutionally grounded ways to accomplish these same goals.
  Starting with the President's Review Group on Intelligence and 
Communications Technologies, the administration began to agree that 
``some of the authorities that were expanded or created in the 
aftermath of September 11 unduly sacrifice fundamental interests in 
individual liberty, personal privacy, and democratic governance.'' And 
they recommended changing those authorities in order to ``strike a 
better balance between the competing interests and providing for the 
common defense and securing `the Blessings of Liberty to ourselves and 
our Posterity.' ''
  Following that, multiple efforts have been made to update and reform 
FISA and to update and reform the USA PATRIOT Act. None of those have 
been successful. But now we are forced to come to a resolution through 
a combination of, frankly, procrastination, and, I think, misguided 
hope that the American people would look the other way while the 
government continued to vacuum up and store their personal information 
and data as part of a program that even the intelligence community 
acknowledges can be accomplished through less intrusive means.
  I will be honest. The current USA FREEDOM Act isn't what I consider 
perfect. For example, I prefer that it include strong reform of section 
702 collection, but I accept that circumstances require us to be 
pragmatic, require us to govern and move forward and to work with one 
another in both parties to find compromise. That is what the USA 
FREEDOM Act is. It is a product of bipartisan compromise.
  That is why it passed the House of Representatives by a vote of 338 
to 88. And let's be blunt, many of those who voted against it didn't do 
so because they support bulk collection. They did so because they want 
to see section 215 wither and die in its entirety. That is the 
political reality we face today, and we need to accept it rather than 
demanding a continuation of a program that the appeals court has 
determined is illegal.

  Mr. WYDEN. I thank my colleague for his statements and would just 
want to explore this a little bit further. I hope that those who are 
following this debate understand that my colleague from New Mexico is a 
real rising star in the Senate. He and I would like the USA FREEDOM Act 
to go further, and we both worked together on legislation that would 
make additional reforms. Certainly, our colleagues on the Intelligence 
Committee and here in the Senate can expect to see us continuing to 
work together to advance these additional reforms over the coming 
months and years. For now, the two of us are saying we ought to support 
the USA FREEDOM Act and then move on--move on to other critical areas.
  I particularly want to see closed what is called the backdoor search 
loophole, which my colleague from New Mexico talked about. What this 
means, colleagues, is that when you are engaged in a lawful search of 
someone who is a threat overseas, pursuant to section 702 of the 
Foreign Intelligence Surveillance Act, very often law-abiding Americans 
can get swept up in this search and have their emails looked at.
  This is a problem today, and my view is it is likely to be a growing 
concern in the future because, increasingly, communications systems 
around the world are becoming globally integrated, so the amount of 
emails that are reviewed of Americans is likely to grow. But we can't 
get that change here tonight. So, as my colleague from New Mexico has 
mentioned, the USA FREEDOM Act would make several worthwhile reforms, 
such as increasing transparency, reducing the government's reliance on 
secret laws. But from my perspective, the centerpiece of it is ending 
the bulk collection of Americans' information under the PATRIOT Act.
  I have been trying to close this particular loophole for close to a 
decade now. Some of our colleagues have said the bulk collection has 
never been abused; that no one's rights have been violated. My own view 
is--and I will ask what my colleague thinks--that vacuuming up all this 
information, particularly when databases get violated all the time--we 
have seen historically instances where there has been improper conduct 
by the government. I believe dragnet surveillance violates the rights 
of millions of our people every day.
  Vacuuming up the private phone records of millions of Americans with 
no connection to wrongdoing is simply a violation of their rights.
  And vacuuming up Americans' email records, which I pointed out before 
my colleague came to the floor--which he and our former colleague 
Senator Udall and I battled--is surely a violation of the rights of 
Americans as well. Colleagues, that wouldn't have been pointed out at 
all--it wouldn't have been pointed out at all--unless Senator Udall and 
I, with the help of our friend from New Mexico, hadn't been pushing 
back on it. Finally, one day the government said: Well, we will get rid 
of it because it wasn't effective. They got rid of it because they saw 
they were going to get hard questions, the kinds of questions my friend 
from New Mexico has been asking.
  Now, with respect to the legality of this program, I know my 
colleague and I actually filed a legal brief, along with our former 
colleague Mark Udall, when the Court of Appeals for the Second Circuit 
was examining that program. In our brief, it was argued that we were 
able to debunk many of the claims that had been made about the 
effectiveness of the program.
  I think it would be helpful if my colleague from New Mexico laid out 
some of that analysis here tonight. I would ask the Senator from New 
Mexico to begin, and I would encourage him to start by addressing the 
claim that the bulk collection of Americans' phone records is essential 
for stopping terrorist attacks. My question to my colleague is, Is 
there any evidence, any

[[Page S3338]]

real concrete evidence, to support that claim?
  Mr. HEINRICH. I thank my friend from Oregon and begin by saying that 
despite what we may have heard from talking heads on the Sunday shows 
and on the cable news networks, the answer is no. There is simply no 
evidence to support those claims.
  When this mass surveillance was first revealed to the public 2 years 
ago, the executive branch initially responded to questions like this by 
claiming that various post-9/11 authorities had resulted in the 
thwarting of approximately ``54 terrorist events in the U.S. homeland 
and abroad.''
  Now, a number of us, including my friend from Oregon and my former 
colleague from Colorado, Senator Udall, began to pull on that thread to 
really parse down and see just what the executive branch was talking 
about. First, of those 54 terrorist events, it turned out that only 13 
were actually focused in the United States. But more importantly, those 
numbers conflated multiple different programs, including authorities 
under section 215 and different authorities under section 702.
  On June 19, 2013, my colleague from Oregon and Senator Udall pointed 
out that ``it appears that the bulk phone records collection program 
under section 215 of the USA PATRIOT Act played little or no role in 
most of these disruptions. Saying that `these programs' have disrupted 
`dozens of potential terrorist plots' is misleading if the bulk phone 
records collection program is actually providing little or no unique 
value.''
  Of the original 54 instances the executive branch pointed to, every 
one of them crumbled under scrutiny. None of them actually justified 
the continued existence of the bulk collection program.
  Let me take a moment, with the indulgence of our colleagues, and read 
what was written by Judge Leon of the District Court for the District 
of Columbia, when he ruled in the Klayman v. Obama case. This is a 
little long, but I think it is important this be part of the official 
record of this debate.
  Judge Leon writes:

       [T]he Government does not cite a single instance in which 
     analysis of the NSA's bulk metadata collection actually 
     stopped an imminent attack, or otherwise aided the Government 
     in achieving any objective that was time-sensitive in nature. 
     In fact, none of the three ``recent episodes'' cited by the 
     Government that supposedly ``illustrate the role that 
     telephony metadata analysis can play in preventing and 
     protecting against terrorist attack'' involved any apparent 
     urgency.

  He continues to write that:

       []In the first example, the FBI learned of a terrorist plot 
     still ``in its early stages'' and investigated that plot 
     before turning to the metadata ``to ensure that all potential 
     connections were identified.'' []Assistant Director Holley 
     does not say that the metadata revealed any new information--
     much less time-sensitive information--that had not already 
     come to light in the investigation up to that point.

  The judge continues:

       []In the second example, it appears that the metadata 
     analysis was used only after the terrorist was arrested ``to 
     establish [his] foreign ties and put them in context with his 
     U.S. based planning efforts.'' []And in the third, the 
     metadata analysis ``revealed a previously unknown number for 
     [a] co-conspirator . . . and corroborated his connection to 
     [the target of the investigation] as well as to other U.S.-
     based extremists.''

  Continuing to quote Judge Leon:

       []Again, there is no indication that these revelations were 
     immediately useful or that they prevented an impending 
     attack. Assistant Director Holley even concedes that bulk 
     metadata analysis only ``sometimes provides information 
     earlier than the FBI's other investigative methods and 
     techniques.''

  Finally, Judge Leon writes:

       []Given the limited record before me at this point in the 
     litigation--most notably, the utter lack of evidence that a 
     terrorist attack has ever been prevented because of searching 
     the NSA database was faster than other investigative 
     tactics--I have serious doubts about the efficacy of the 
     metadata collection program as a means of conducting time-
     sensitive investigations in cases involving imminent threats 
     of terrorism.

  That is where the judge leaves off. And I will turn back to the 
Senator from Oregon to address the three cases we discussed in more 
detail in our amicus brief to the Second Circuit.
  Mr. WYDEN. I thank my colleague. The first of these examples--and 
they really are kind of overblown examples about the effectiveness of 
bulk collection--is the case of an individual named Najibullah Zazi. 
Mr. Zazi was a known terrorism suspect, and a number of people have 
suggested that bulk phone records collection was somehow essential to 
stopping him because a query of the bulk phone records database for 
numbers linked to Mr. Zazi returned a previously unknown number 
belonging to another terrorism suspect.
  However, since the government had already identified Zazi as a 
terrorism suspect prior to querying the bulk phone records database, it 
had all the evidence it needed to obtain the phone records of Zazi and 
his associates using an individualized section 215 order or other legal 
authorities.
  In the second case, some have pointed to Mr. Moalin, the San Diego 
man convicted of sending $8,500 to support al-Shabaab in Somalia. The 
intelligence community has indicated that information from the bulk 
phone records database ``established a connection between a phone 
number known to be used by an extremist overseas . . . and an unknown 
San Diego-based number'' that belonged to Mr. Moalin. Yet there are 
ample existing authorities under which the United States can conduct 
surveillance on a phone number known to be used by extremists overseas 
and other phone numbers in contact with that phone number.
  The argument that Mr. Moalin's case is an example of a unique value 
of bulk phone records collection is just not accurate. My view is this 
is yet another case that offers a misleading exaggeration with respect 
to the effectiveness of bulk phone records collection.
  Finally, several supporters of the bulk metadata program have claimed 
that ``[i]f we had had [the bulk phone-records] program in place at the 
time [of the September 11, 2001 attacks,] we would have been able to 
identify'' the phone number of one of the hijackers, Khalid al-Mihdhar.
  Just as in these other cases, however, the record indicates that Mr. 
Mihdhar's phone number could also have been obtained by the government 
using a variety of alternate means. Before September 11, the government 
was surveilling a safe house in Yemen but failed to realize that Mr. 
Mihdhar, who was in contact with the safe house, was actually inside 
the United States. The government could have used any number of 
authorities to determine whether anyone in our country was in contact 
with the safe house it was already targeting. It didn't need a record 
of every Americans' phone calls to establish that simple connection.
  Mr. HEINRICH. I wish to expound on that point a bit, about the many 
other ways the government can legitimately acquire phone records of 
terrorism suspects, because I think this is a very important point to 
understand the tools that already exist that have been very effective 
and have proven themselves over time.
  There are actually a number of legal authorities that can get the 
same information without the government collecting billions of call 
records--billions of call records that, in large part, belong to 
innocent Americans.
  For example, the Stored Communications Act permits the government to 
obtain precisely the same call records that are now acquired through 
bulk collection under section 215 when they are ``relevant and material 
to an ongoing criminal investigation.''
  Additionally, national security letters, which I point out do not 
require a court order, can also be used by the government to obtain 
call records for intelligence purposes.
  Further, the government can also acquire telephony metadata on a 
real-time basis by obtaining orders from either regular Federal courts 
or the FISC for the installation of pen registers or trap-and-trace 
devices.
  Finally, individualized orders for phone records, as opposed to 
orders authorizing broad bulk collection, can also be obtained under 
section 215.
  I think those of us early in this debate thought that was what was 
going to occur under the PATRIOT Act in the first place. But that is 
what the USA FREEDOM Act seeks to require while prohibiting the bulk 
collection of millions of personal records. It even includes emergency 
authorization authority for the government to get records prior to 
getting court approval, subject to later court approval, in an 
emergency.
  The government can use any of these authorities without any more 
evidence

[[Page S3339]]

than what is currently required to use the bulk phone records database, 
with less impact, I would point out, on the privacy interests of 
millions of innocent Americans.
  I think at this point the Senator from Oregon and I have laid out our 
case as to why this dragnet bulk surveillance program fails to make our 
country measurably safer and why it should end. I am pleased to say 
that a number of people have finally come around to our way of thinking 
on this.
  Mr. WYDEN. I thank my colleague. I will wrap up and then give the 
last word to my friend from New Mexico on the subject. He is absolutely 
right that some of the most authoritative leaders in our country--
experts on terror--have reached the same judgment we have. I made 
mention of the President's Review Group on Intelligence and 
Communications Technologies, and I really would encourage colleagues 
who are following this debate and citizens across the country--that 
report is available online, and it is available in our office. Page 104 
of that report is very explicit. It says that the information that 
would otherwise be obtained in collecting all of these phone records--
millions of phone records of law-abiding Americans, people such as Mike 
Morell, former Acting Director of the CIA, and Richard Clark, who 
served in two administrations--they said it could have been obtained 
through conventional processes.
  This is a program that is not making us safer. And it is not my 
judgment that ought to be the last word; it should be that of people 
like those I just quoted.
  The Privacy and Civil Liberties Oversight Board's report on the 
telephone records program said pretty much the same thing:

       [T]he Section 215 program has shown minimal value in 
     safeguarding the nation from terrorism. Based on the 
     information provided to the Board, including classified 
     briefings and documentation, we have not identified a single 
     instance involving a threat to the United States in which the 
     program made a concrete difference in the outcome of a 
     counterterrorism investigation.

  I will close by way of saying--and I touched on this before my friend 
from New Mexico arrived--I would like to do a lot more than I believe 
is likely to happen here quickly in the Senate. I do want to see us 
finally throw in the dustbin of history this bulk phone records 
collection program because it doesn't make us safer and it compromises 
our liberty. But, as I indicated to my friend from New Mexico, I would 
also like to close this backdoor search loophole in the FISA Act, which 
is going to be a bigger problem in the days ahead given the evolution 
of communications systems and how they have become globally integrated.
  I will close by saying that one of the most important issues we are 
going to have to tackle in the days ahead is going to deal with 
encryption. Encryption, of course, is the encoding of data and messages 
so that they cannot be easily read. The reason this will be an 
enormously important issue--and my colleague and I have talked about 
this--is because of the NSA overreach, the collection of all these 
phone records of law-abiding people. A lot of our most innovative, 
cutting-edge companies have found their customers raising real 
questions about whether their products can be used safely, and a lot of 
the purchasers who buy their products around the world are saying: 
Maybe we shouldn't trust them. Maybe we should try to start taking 
control over their servers and have local storage requirements and that 
sort of thing. So what our companies did, because they saw the effect 
of the overreach by the NSA, was they started to use encryption to 
protect the data and messages of the consumers who buy their products.
  Most recently, the head of the FBI, Mr. Comey, rather than try to 
come back with a solution that protected both our privacy and our 
security, he said he was interested in requiring companies to build 
weaknesses into their products. Just think about that--requiring 
companies to build weaknesses into their products. So the government--
which, in effect, caused this problem with the overreach--in effect, 
rather than trying to find a solution that worked for both security and 
liberty, said: We will start talking about requiring companies to 
actually build weaknesses into their products.
  I and others have pointed out that once you do that, hang on to your 
hat. When the good guys have the keys, that is one thing, but when 
companies are required to build weaknesses into their products, the bad 
guys are going to get the keys in a hurry, too. And with all the cyber 
hacking and the risks we already have, we ought to be really careful 
about going where Mr. Comey, our FBI Director, has proposed to go.
  But that is not for tonight. Tonight is not an occasion where we will 
be able to, on a bipartisan basis, close the backdoor-search loophole 
or where we will be able to come up with a sensible policy with respect 
to encryption rather than requiring companies to actually build 
weaknesses in their products. We will not be able to do that tonight. 
But we will now have a chance here in the Senate to take steps that 
have been bipartisan both here in the Senate and in the other body, in 
the House of Representatives, to end the bulk phone records collection 
program because it doesn't make us safer and it threatens our 
liberties.
  I always like to close by thinking about Ben Franklin, who said that 
anybody who gives up their liberty to have security really doesn't 
deserve either.
  I am so pleased to have a chance to serve with my colleague from New 
Mexico on the Intelligence Committee, who is going to be a thoughtful 
advocate for these kinds of policies, in my view, for many years to 
come. I thank him for his involvement tonight and would be happy to 
give him the last word of our colloquy at this time.
  I yield to my colleague.
  Mr. HEINRICH. I thank my friend from Oregon. I think he could not 
have chosen a more appropriate way to end than to reference what Ben 
Franklin said so many years ago, that great quote that ``those who 
would give up essential Liberty, to purchase a little temporary Safety, 
deserve neither Liberty nor Safety.''
  While many reforms still lie in front of us, I think, as we move 
forward to approving the USA FREEDOM Act, we move a lot closer to the 
balance that Ben Franklin articulated so well over 200 years ago. I 
look forward to working with my colleague from Oregon and all of our 
colleagues in achieving that balance and standing up for our 
constituents.
  Mr. WYDEN. Mr. President, I yield the floor.
  Mr. LEAHY. Mr. President, we did not have to end up here, just hours 
away from the midnight expiration of three surveillance authorities, 
and having just moved to proceed to the USA FREEDOM Act.
  I have tried since last year to move legislation through the Senate 
to address these sunsets. In November, Senator Reid brought the USA 
FREEDOM Act to the floor but the Republican leadership of the Senate 
blocked debate on it. When they took over the Senate, they assured us 
that they would send bills--including this one--through appropriate 
committee process. There were promises that the new leadership would 
not fill the amendment tree, and would use a transparent legislative 
process. But not one of those promises has been fulfilled with respect 
to any legislation dealing with the upcoming sunsets.
  Once again this year, I proposed with Senator Lee a new version of 
the USA FREEDOM Act. That bill had significant process in the House, 
where it passed by an overwhelming margin earlier this month. And once 
again, the bipartisan coalition here in the Senate tried to get the 
bill passed. Two Fridays ago, the Senate Republican leadership did not 
allow us to debate the bill.
  Tonight, the Senate did the right thing by invoking cloture on the 
motion to proceed to the USA FREEDOM Act. I am glad to see several 
Republicans switched their votes. This is significant progress, but it 
is late in coming.
  We should have proceeded to this bill two Fridays ago. Had we done 
so, we could have stayed here to do our work, considered amendments, 
and passed the bill well in advance of tonight's sunset. Instead, we 
are hours away from expiration and just now considering legislation 
that many of us have been working on for years. Our intelligence 
community needs predictability and certainty, not a manufactured 
crisis.
  If all Senators cooperate, we can finish this bill tonight. We can 
consider a

[[Page S3340]]

handful of amendments under a time agreement, and pass this bill before 
midnight. That would be the responsible thing to do.
  Mr. BARRASSO. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Capito). Without objection, it is so 
ordered.
  Mr. McCONNELL. Madam President, I know of no further debate on the 
motion.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
proceed.
  The motion was agreed to.

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