[Congressional Record Volume 161, Number 87 (Tuesday, June 2, 2015)]
[Senate]
[Pages S3419-S3421]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NATIONAL SECURITY LEGISLATION

  Mr. McCONNELL. Madam President, I wish we had been able to move the 
cloture and amendment votes we will consider today to yesterday. I made 
an offer to do so because it is hard to see the point in allowing yet 
another day to elapse when everyone has already had a chance to say 
their piece, when the end game appears obvious to all, and when the 
need to move forward in a thoughtful but expeditious manner seems 
perfectly clear. But this is the Senate, and Members are entitled to 
different views and Members have tools to assert those views. It is the 
nature of the body where we work.
  Moreover, it is important to remember that it was not just the denial 
of consent which brought us to where we are. The kind of short-term 
extension that would have provided the Senate with the time and space 
it needed to advance bipartisan compromise legislation through regular 
order was also blocked in a floor vote.
  But what has happened has happened, and we are where we are. Now is 
the time to put all that in the past and work together to diligently 
make some discrete and sensible improvements to the House bill.
  Before scrapping an effective system that has helped protect us from 
attack in favor of an untried one, we should at least work toward 
securing some modest degree of assurance that the new system can, in 
fact, actually work. The Obama administration also already told us that 
it would not be able to make any firm guarantees in that regard--that 
it would work--at least the way the bill currently reads. And the way 
the bill currently reads, there is also no requirement--no 
requirement--for the retention and availability of significant data for 
analysis. These are not small problems.
  The legislation we are considering proposes major changes to some of 
our Nation's most fundamental and necessary counterterrorism tools. 
That is why the revelations from the administration shocked many 
Senators, including a lot of supporters of this legislation. It is 
simply astounding that the very government officials charged with 
implementing the bill would tell us, both in person and in writing, 
that if it turns out this new system doesn't work, then they will just 
come back to us and let us know. If it doesn't work, they will just 
come back and let us know. This is worrying for many reasons, not the 
least of which is that we don't want to find out the system doesn't 
work in a far more tragic way. That is why we need to do what we can 
today to ensure that this legislation is as strong as it can be under 
the circumstances.
  Here are the kinds of amendments I hope every Senator will join me in 
supporting today.
  One amendment would allow for more time for the construction and 
testing of a system that does not yet exist. Again, one amendment would 
allow for more time for the construction and testing of a system that 
does not yet exist.
  Another amendment would ensure that the Director of National 
Intelligence is charged with at least reviewing and certifying the 
readiness of the system.
  Another amendment would require simple notification if telephone 
providers--the entities charged with holding data under this bill--
elect to change their data-retention policies. Let me remind my 
colleagues that one provider has already said expressly and in writing 
that it would not commit to holding the data for any period of time 
under the House-passed bill unless compelled by law. So this amendment 
represents the least we can do to ensure we will be able to know, 
especially in an emergency, whether the dots we need to connect have 
actually been wiped away.
  We will also consider an amendment that would address concerns we 
have heard from the nonpartisan Administrative Office of the U.S. 
Courts--in other words, the lifetime Federal judges who actually serve 
on the FISA Court. In a recent letter, they wrote that the proposed 
amicus provision ``could impede the FISA Courts' role in

[[Page S3420]]

protecting the civil liberties of Americans.''
  I ask unanimous consent that the full text of that letter be printed 
in the Record at the conclusion of my remarks.
  So the bottom line is this: The basic fixes I have just mentioned are 
common sense. Anyone who wants to see the system envisioned under this 
bill actually work will want to support them. And anyone who has heard 
the administration's ``we will get back to you if there is a problem'' 
promise should support these modest safeguards as well.
  We may have been delayed getting to the point at which we have 
arrived, but now that we are here, let's work cooperatively, seriously, 
and expeditiously to move the best legislation possible and prevent any 
more delay and uncertainty.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                      Administrative Office of the


                                         United States Courts,

                                      Washington, DC, May 4, 2015.
     Hon. Devin Nunes,
     Chairman, Permanent Select Committee on Intelligence, House 
         of Representatives, Washington, DC.
       Dear Mr. Chairman: I write regarding H.R. 2048, the ``USA 
     Freedom Act,'' which was recently ordered reported by the 
     Judiciary Committee, to provide perspectives on the 
     legislation, particularly an assessment that the pending 
     version of the bill could impede the effective operation of 
     the Foreign Intelligence Surveillance Courts.
       In letters to the Committee on January 13, 2014 and May 13, 
     2014, we commented on various proposed changes to the Foreign 
     Intelligence Surveillance Act (FISA). Our comments focused on 
     the operational impact of certain proposed changes on the 
     Judicial Branch, particularly the Foreign Intelligence 
     Surveillance Court (``FISC'') and the Foreign Intelligence 
     Surveillance Court of Review (collectively ``FISA Courts''), 
     but did not express views on core policy choices that the 
     political branches are considering regarding intelligence 
     collection. In keeping with that approach, we offer views on 
     aspects of H.R. 2048 that bear directly on the work of the 
     FISA Courts and how that work is presented to the public. We 
     sincerely appreciate the ongoing efforts of the bipartisan 
     leadership of all the congressional committees of 
     jurisdiction to listen to and attempt to accommodate our 
     perspectives and concerns.
       We respectfully request that, if possible, this letter be 
     included with your Committee's report to the House on the 
     bill.


                          Summary of Concerns

       We have three main concerns. First, H.R. 2048 proposes a 
     ``panel of experts'' for the FISA Courts which could, in our 
     assessment, impair the courts' ability to protect civil 
     liberties by impeding their receipt of complete and accurate 
     information from the government (in contrast to the helpful 
     amicus curiae approach contained in the FISA Improvements Act 
     of 2013 (``FIA''), which was approved in similar form by the 
     House in 2014). Second, we continue to have concerns with the 
     prospect of public ``summaries'' of FISA Courts' opinions 
     when the opinions themselves are not released to the public. 
     Third, we have a few other specific technical concerns with 
     H.R. 2048 as drafted.


                       Nature of the FISA Courts

       With the advent of a new Congress and newly proposed 
     legislation, it seems helpful to restate briefly some key 
     attributes of the work of the FISA Courts.
       The vast majority of the work of the FISC involves 
     individual applications in which experienced judges apply 
     well-established law to a set of facts presented by the 
     government--a process not dissimilar to the ex parte 
     consideration of ordinary criminal search warrant 
     applications. Review of entire programs of collection and 
     applications involving bulk collection are a relatively small 
     part of the docket, and applications involving novel legal 
     questions, though obviously important, are rare.
       In all matters, the FISA Courts currently depend on--and 
     will always depend on--prompt and complete candor from the 
     government in providing the courts with all relevant 
     information because the government is typically the only 
     source of such information.
       A ``read copy'' practice--similar to the practices employed 
     in some federal district courts for Title III wiretap 
     applications--wherein the government provides the FISC with 
     an advance draft of each planned application, is the major 
     avenue for court modification of government-sought 
     surveillance. About a quarter of ``read copies'' are modified 
     or withdrawn at the instigation of the FISC before the 
     government presents a final application--in contrast to the 
     overwhelming majority of formal applications that are 
     approved by the Court because modifications at the ``read 
     copy'' stage have addressed the Court's concerns in cases 
     where final applications are submitted.
       The FISC typically operates in an environment where, for 
     national security reasons and because of statutory 
     requirements, time is of the essence, and collateral 
     litigation, including for discovery, would generally be 
     completely impractical.
       At times, the FISA Courts are presented with challenging 
     issues regarding how existing law applies to novel 
     technologies. In these instances, the FISA Courts could 
     benefit from a conveniently available explanation or 
     evaluation of the technology from an informed non-government 
     source. Congress could assist in this regard by clarifying 
     the law to provide mechanisms for this to occur easily (e.g., 
     by providing for pre-cleared experts with whom the Court can 
     share and receive information to the extent it deems 
     necessary).


 The ``Panel of Experts'' Approach of H.R. 2048 Could Impede the FISA 
                              Courts' Work

       H.R. 2048 provides for what proponents have referred to as 
     a ``panel of experts'' and what in the bill is referred to as 
     a group of at least five individuals who may serve as an 
     ``amicus curiae'' in a particular matter. However, unlike a 
     true amicus curiae, the FISA Courts would be required to 
     appoint such an individual to participate in any case 
     involving a ``novel or significant interpretation of law'' 
     (emphasis added)--unless the court ``issues a finding'' that 
     appointment is not appropriate. Once appointed, such amici 
     are required to present to the court, ``as appropriate,'' 
     legal arguments in favor of privacy, information about 
     technology, or other ``relevant'' information. Designated 
     amici are required to have access to ``all relevant'' legal 
     precedent, as well as certain other materials ``the court 
     determines are relevant.''
       Our assessment is that this ``panel of experts'' approach 
     could impede the FISA Courts' role in protecting the civil 
     liberties of Americans. We recognize this may not be the 
     intent of the drafters, but nonetheless it is our concern. As 
     we have indicated, the full cooperation of rank- and-file 
     government personnel in promptly conveying to the FISA Courts 
     complete and candid factual information is critical. A 
     perception on their part that the FISA process involves a 
     ``panel of experts'' officially charged with opposing the 
     government's efforts could risk deterring the necessary and 
     critical cooperation and candor. Specifically, our concern is 
     that imposing the mandatory ``duties''--contained in 
     subparagraph (i)(4) of proposed section 401 (in combination 
     with a quasi-mandatory appointment process)--could create 
     such a perception within the government that a standing body 
     exists to oppose intelligence activities.
       Simply put, delays and difficulties in receiving full and 
     accurate information from Executive Branch agencies 
     (including, but not limited to, cases involving non-
     compliance) present greater challenges to the FISA Courts' 
     role in protecting civil liberties than does the lack of a 
     non-governmental perspective on novel legal issues or 
     technological developments. To be sure, we would welcome a 
     means of facilitating the FISA Courts' obtaining assistance 
     from non-governmental experts in unusual cases, but it is 
     critically important that the means chosen to achieve that 
     end do not impair the timely receipt of complete and accurate 
     information from the government.
       It is on this point especially that we believe the ``panel 
     of experts'' system in H.R. 2048 may prove counterproductive. 
     The information that the FISA Courts need to examine probable 
     cause, evaluate minimization and targeting procedures, and 
     determine and enforce compliance with court authorizations 
     and orders is exclusively in the hands of the government--
     specifically, in the first instance, intelligence agency 
     personnel. If disclosure of sensitive or adverse information 
     to the FISA Courts came to be seen as a prelude to disclosure 
     to a third party whose mission is to oppose or curtail the 
     agency's work, then the prompt receipt of complete and 
     accurate information from the government would likely be 
     impaired--ultimately to the detriment of the national 
     security interest in expeditious action and the effective 
     protection of privacy and civil liberties.
       In contrast, a ``true'' amicus curiae approach, as adopted, 
     for example, in the FIA, facilitates appointment of experts 
     outside the government to serve as amici curiae and render 
     any form of assistance needed by the court, without any 
     implication that such experts are expected to oppose the 
     intelligence activities proposed by the government. For that 
     reason, we do not believe the FIA approach poses any similar 
     risk to the courts' obtaining relevant information.


   ``Summaries'' of Unreleased FISA Court Opinions Could Mislead the 
                                 Public

       In our May 13, 2014, letter to the Committee on H.R. 3361, 
     we shared the nature of our concerns regarding the creation 
     of public ``summaries'' of court opinions that are not 
     themselves released. The provisions in H.R. 2048 are similar 
     and so are our concerns. To be clear, the FISA Courts have 
     never objected to their opinions--whether in full or in 
     redacted form--being released to the public to the maximum 
     extent permitted by the Executive's assessment of national 
     security concerns. Likewise, the FISA Courts have always 
     facilitated the provision of their full opinions to Congress. 
     See, e.g., FISC Rule of Procedure 62(c). Thus, we have no 
     objection to the provisions in H.R. 2048 that call for 
     maximum public release of court opinions. However, a formal 
     practice of creating summaries of court opinions without the 
     underlying opinion being available is unprecedented in 
     American legal administration. Summaries of court opinions 
     can be inadvertently incorrect or misleading, and may

[[Page S3421]]

     omit key considerations that can prove critical for those 
     seeking to understand the import of the court's full opinion. 
     This is particularly likely to be a problem in the fact-
     focused area of FISA practice, under circumstances where the 
     government has already decided that it cannot release the 
     underlying opinion even in redacted form, presumably because 
     the opinion's legal analysis is inextricably intertwined with 
     classified facts.


               Additional Technical Comments on H.R. 2048

       The Judiciary, like the public, did not participate in the 
     discussions between the Administration and congressional 
     leaders that led to H.R. 2048 (publicly released on April 28, 
     2015 and reported by the Judiciary Committee without changes 
     on April 30). In the few days we have had to review the bill, 
     we have noted a few technical concerns that we hope can be 
     addressed prior to finalization of the legislation, should 
     Congress choose to enact it. These concerns (all in the 
     amicus curiae subsection) include:
       Proposed subparagraph (9) appears inadvertently to omit the 
     ability of the FISA Courts to train and administer amici 
     between the time they are designated and the time they are 
     appointed.
       Proposed subparagraph (6) does not make any provision for a 
     ``true amicus'' appointed under subparagraph (2)(B) to 
     receive necessary information.
       We are concerned that a lack of parallel construction in 
     proposed clause (6)(A)(i) (apparently differentiating between 
     access to legal precedent as opposed to access to other 
     materials) could lead to confusion in its application.
       We recommend adding additional language to clarify that the 
     exercise of the duties under proposed subparagraph (4) would 
     occur in the context of Court rules (for example, deadlines 
     and service requirements).
       We believe that slightly greater clarity could be provided 
     regarding the nature of the obligations referred to in 
     proposed subparagraph (10). These concerns would generally be 
     avoided or addressed by substituting the FIA approach. 
     Furthermore, it bears emphasis that, even if H.R. 2048 were 
     amended to address all of these technical points, our more 
     fundamental concerns about the ``panel of experts'' approach 
     would not be fully assuaged. Nonetheless, our staff stands 
     ready to work with your staff to provide suggested textual 
     changes to address each of these concerns.
       Finally, although we have no particular objection to the 
     requirement in this legislation of a report by the Director 
     of the AO, Congress should be aware that the AO's role would 
     be to receive information from the FISA Courts and then 
     simply transmit the report as directed by law.
       For the sake of brevity, we are not restating here all the 
     comments in our previous correspondence to Congress on 
     proposed legislation similar to H.R. 2048. However, the 
     issues raised in those letters continue to be of importance 
     to us.
       We hope these comments are helpful to the House of 
     Representatives in its consideration of this legislation. If 
     we may be of further assistance in this or any other matter, 
     please contact me or our Office of Legislative Affairs at 
     202-502-1700.
           Sincerely,
                                                    James C. Duff,
     Director.

                          ____________________